Comprehensive and systematic analyses of MDL procedures and practices
In every pharmaceutical or medical device product liability multi-district litigation (MDL) in which we have been involved in the past 20 years, at some point the parties debate whether their competing proposals for some particular case management process reflect typical MDL practice, as opposed to being an outlier. Occasionally, we have found those debates unproductive and challenging to resolve, because each side typically can cite a handful of examples supporting their preferred approach, and it is very difficult for MDL judges to assess what represents typical MDL practice. Time constraints often prevent a comprehensive review of comparable MDLs for each particular issue that is in dispute.
To address that problem, DLA Piper has constructed a comprehensive database of MDL procedures and practices for all pharmaceutical and medical device product liability MDLs over the past 20 years. We began by identifying 82 such MDLs and closely analyzed the MDL dockets and other publicly available information – including the JPML's docket, FDA's website, the legal press, companies' annual reports, and plaintiffs' firms' web sites – to catalog how the MDL courts handled various issues.
All told, we captured data related to more than 80 issues, answering such questions as:
- Was there regulatory action that preceded the MDL?
- Which side petitioned for the MDL?
- What were the primary injuries alleged?
- What was the peak number of claims?
- Did the MDL court frontload general causation issues?
- How long did it take before the first trial was scheduled? How long before the first trial was actually completed? What were the results?
- How many company witness depositions were plaintiffs allowed to take?
- Were there limits on document production, particularly relating to foreign regulatory files, native format, or the use of search terms vs. technology assisted review?
- Did the MDL court allow live testimony of experts at a Daubert hearing?
- How did the MDL court select bellwether plaintiffs for discovery and trial?
- Did the MDL court issue a Lone Pine order?
- Is there publicly available information about settlements?
- Were there any appeals?
DLA Piper's MDL Benchmark database enables us to provide our clients with systematic and comprehensive analyses of MDL procedures and practices, which should be far more persuasive to courts than one-off, anecdotal references to a handful of examples. Our database also enables us to provide those analyses efficiently.
As just one example of the analyses DLA Piper's MDL Benchmark database enables, Saher Valiani, Matt Holian, and Jill Marinoff have published an article in Law360 – which we offer here – describing the impact of big data and social media on the triggers for mass tort litigations. In the article, they cite data from our database establishing that, far more frequently than in the past, recent changes in technology have caused MDLs to commence before FDA acts.
For pharmaceutical and medical device companies facing MDLs, or others interested in our insights regarding MDL procedures and practices, please feel free to contact Loren Brown, Matt Holian, or other members of our internationally recognized product liability practice to discuss how DLA Piper can help.
*Jill Marinoff, case manager of DLA Piper's Litigation group, is based in Los Angeles.