An Empirical Evaluation of Proposed Civil Rules for Multidistrict Litigation

• Publication year: 2020

An Empirical Evaluation of Proposed Civil Rules for Multidistrict Litigation

Margaret S. Williams
Federal Judicial Center

Jason A. Cantone
Federal Judicial Center

AN EMPIRICAL EVALUATION OF PROPOSED CIVIL RULES FOR MULTIDISTRICT LITIGATION

Margaret S. Williams & Jason A. Cantone^*

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The Civil Rules Committee of the Judicial Conference of the United States recently began considering the need for specific rules regarding multidistrict litigation (MDL) proceedings. The possibility of creating rules specifically for MDL originates with recently proposed legislation prompted by groups typically tied to the defense bar. One area the Civil Rules Committee is considering concerns the use of fact sheets in MDL proceedings. These party-negotiated questionnaires—directed at both parties to the case—inform judges and attorneys about the scope of the proceeding. Understanding whether these case management tools are currently being used and how they work with other tools, such as bellwether trials, in MDL proceedings will help inform a discussion of the need for specific MDL rules. Despite their importance, very little published, empirical work looks at fact sheets in MDL proceedings. This is the first comprehensive study of the use of fact sheets.
Using a sample of 116 mass tort proceedings—typically involving products liability—centralized through MDL between 2008 and 2018, we examine when fact sheets were ordered, what the procedures for complying with the case management order were, what information was collected, and what effect fact sheets had on the termination of the proceedings. The proceedings ranged between 3 and 40,533 actions and were open a minimum of 118 days and a maximum of 3811 days. Actions terminated within the proceeding at least

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98% of the time, but little available information exists regarding how the actions terminated. These proceedings were centralized in forty districts. We find that fact sheets were ordered more than half the time and were most likely to be used in the largest proceedings. The information in fact sheets was used in proceedings in several ways, including to identify cases for bellwether trials and winnowing cases. Using fact sheets, moreover, led to quicker termination of the proceeding, all else being equal. Our sample of proceedings suggests judges use fact sheets to organize products liability proceedings when judges perceive they are merited, after considering the size of the proceeding or the nature of the litigation. The frequency with which judges already employ fact sheets and the variation in uses call into question both the need for a rule and how to write one without tying the hands of transferee judges. Many issues regarding how fact sheets are used remain to be studied more in-depth. We encourage future studies regarding how fact sheets are used across MDL proceedings.

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Table of Contents

I. Introduction....................................................................224

II. Managing an MDL..........................................................233

III. Where Fact Sheets Fall Within the Federal Rules of Civil Procedure...........................................................241

IV. Why are Fact Sheets Used?........................................243

V. Data and Analysis..........................................................249

A. WHEN FACT SHEETS ARE USED.................................254
B. HOW FACT SHEETS ARE IMPLEMENTED.....................257
C. THE TIMING OF FACT SHEET ORDERS........................259
D. DEADLINES FOR COMPLIANCE ..................................261
E. WHAT INFORMATION IS COLLECTED IN FACT SHEETS 262
F. WHY PARTIES COMPLY..............................................266
G. THE EFFECT OF FACT SHEETS ON PROCEEDINGS.......269

VI. How Fact Sheets Fit....................................................270

VII. Conclusion...................................................................277

VIII. Appendix: Description of the Data.........................280

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I. Introduction

The Advisory Committee on Civil Rules (Advisory Committee) has begun considering the need for specific rules related to multidistrict litigation (MDL) proceedings.¹ The possibility of creating rules specifically for MDL proceedings originated with recently proposed legislation² prompted by groups typically tied to the defense bar.³ One area the Advisory Committee is considering

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is the use of what are called "fact sheets."⁴ Fact sheets are standard sets of questions used in some large MDL proceedings to help transferee judges and attorneys manage substantial numbers of cases by gaining a sense of the scope of the proceeding.⁵ These party-negotiated questionnaires are directed at both parties to a case and provide judges and attorneys with information about the proceeding's scope. Tied generally to preliminary case management and discovery orders, fact sheets can help judges and parties better understand the contours of the litigation by gathering basic information about the cases and claims in the proceeding early on, winnowing weak cases or claims, and shaping the nature of litigation and settlement. Until now, the use of fact sheets has never been empirically studied, despite the calls for rulemaking in this area. This Article examines the use of fact sheets in 116 proceedings—which range from 3 actions to 40,533—centralized between 2008 and 2018.

A brief point about terminology: in a recent study, Federal Judicial Center researchers found that several related types of questionnaires were used in MDL proceedings.⁶ "Fact sheet" is a general term, whereas some court orders refer to questionnaires as "profile forms," "preliminary disclosure forms," or, more generally, "questionnaires."⁷ Fact sheets collect core information (e.g., plaintiff information, use of drug or device, harm suffered) as well as more detailed information about the plaintiffs' general health,

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employment and family history, or past involvement in litigation.⁸ Some proceedings only require fact sheets of plaintiffs while others require them of both plaintiff and defendant.⁹ We consider both in this Article. Defendant fact sheets tend to require information about the plaintiff that the defendant possesses.¹⁰ The deadlines for completing fact sheets are often amended during the process of collecting information.¹¹ A profile form, generally speaking, is a much shorter version of the fact sheet and provides similar information.¹² Some large MDLs use only a fact sheet, while some use both fact sheets and profile forms. This Article provides information on the uses and types of fact sheets in MDL proceedings, using the more general term.

Fact sheets are but one case management tool transferee judges employ in MDL proceedings. When two or more cases with common sets of fact are pending in separate federal courts, they can be consolidated and transferred for pretrial proceedings to any district court in the country under 28 U.S.C. § 1407.¹³ The purpose of these centralized proceedings is to make litigation more efficient—avoiding duplicative discovery, increasing convenience for the parties, and reducing the costs of litigation by using economies of scale.¹⁴ The Judicial Panel on Multidistrict Litigation (Panel), a body of seven federal district and circuit judges who serve on the Panel in addition to serving on their home court, decides whether to consolidate and transfer cases.¹⁵

Although initially thought to be less controversial than class actions,¹⁶ more attention and criticism has followed MDL

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proceedings as the Panel has created more proceedings and as the proceedings have included more cases.¹⁷ The decline in class actions resulted in an increase in MDL proceedings,¹⁸ some of which also contain class actions.¹⁹ As the percentage of civil filings involved in MDL proceedings increased,²⁰ calls for managing the "litigation explosion" in MDL began to grow, including a perceived need to create rules for MDL proceedings.²¹

The rise in litigation and subsequent call for action is not new to MDL. Writing more than thirty years ago, when the federal civil caseload was seventy-seven percent of what it is today,²² Judge Robert L. Carter said,

One of the contemporary challenges facing the federal courts is said to be the so-called "caseload explosion." That very characterization, of course, obscures important questions about the success and functioning of the courts: which members of society are bringing greater numbers of federal suits, why are they doing so,

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and what would be the social and political costs of denying them access to a federal forum for resolution of their disputes?²³

Though Judge Carter was referring to efforts to limit the use of class actions to bring claims to federal court, this same argument is prompting many proposed rules for MDL proceedings. References to the "black hole" of MDL,²⁴ complaints about the proceedings' duration,²⁵ unsubstantiated arguments about "meritless" cases and claims,²⁶ and a misguided focus on the percentage of the pending civil docket involved in MDL proceedings²⁷ are modern takes on the same argument. Historically, when a particular type of litigation increasingly occupies the civil docket, proposals emerge to limit it. The recent proposal by Lawyers for Civil Justice, with its claim that "[o]ne of the greatest problems identified with the MDL process is its tendency to attract meritless claims," is no exception.²⁸

Thus, the question of whether rules for MDL, specifically rules regarding fact sheets, are necessary must be answered by evaluating how fact sheets are currently used in MDL proceedings and how proposed rules might change current practices. If new rules are an attempt "to get rid of technicalities and simplify procedure and get to the merits,"²⁹ they should not further complicate

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procedure. If these new rules reflect an attempt to "devise standards that...