• Case Management Orders in Mass Tort Litigation
  • September 16, 2005 | Author: Judi Abbott Curry
  • Law Firm: Harris Beach PLLC - New York Office
  • The need to craft specialized case management procedures for litigation involving numerous and complex tort claims is one of the few areas of unanimous agreement amongst plaintiffs' counsel, defense counsel, and the courts. The judicially sanctioned implement that effectuates a comprehensive plan to manage pre-trial matters in complex mass tort litigation -- the case management order -- is a mandatory starting point to facilitate the orderly and cost-effective acquisition of relevant discovery and the prompt resolution of pre-trial disputes. See Manual for Complex Litigation, Fourth (2004), §22. Mass torts involve large numbers of claims that are associated with a single product, type of product or location, a commonality of issues and actors, and an interdependence to the value of claims, making the mass tort species both unique and complex. In re Dow Corning Corp., Debtor, 211 B.R. 545, 574 (Bankr.E.D.Mich. 1997). As a result of its inherent complexity, mass tort litigation has stimulated a considerable amount of creativity and experimentation by counsel and courts to find means of handling voluminous litigation. Some of the methods used have not even been considered, much less approved, by appellate courts. "These complex and unwieldy mass tort cases are a breed apart . . . to the point that efficient, and often innovative, administrative arrangements become absolutely essential to enable the court to run a tight ship to ensure that the litigation stays on course." In re San Juan Dupont Plaza Hotel Fire Litigation, 111 F.3d 220, 229 (1st Cir. 1997). Sparse case law and the mass tort litigators' bible, the Manual for Complex Litigation, encourage counsel for the parties to forge ad hoc prophylactic procedures by mutual agreement from the outset of the litigation. Prescriptive procedural models will emerge, with deserving ones gaining currency, through the litigants' own collaborative efforts, rather than being crafted by appellate courts. Id. As such, some of the methods advocated here to fashion a CMO find little support in reported case law or treatises. Authority of Court to Issue a Mass Tort CMO The first order of business in obtaining a case management order is to convince the court that it is a useful tool employed by many judges in many jurisdictions to manage complex litigation. Such an order, usually entered at the outset of the litigation, "lays out a clear path and timetable for the completion of all tasks necessary to ready the case for trial." Lu v. Superior Court (Grand Lincoln Village Homeowner Association), 55 Cal.App.4th 1264, 1268, 64 Cal.Rptr.2d 561, 563 (1997). Matters addressed by a CMO may vary under the circumstances; no single format is appropriate for all cases. Initial orders that might be covered in the first CMO for a mass tort include setting an agenda and ground rules for the initial conference; establishing an initial service list of counsel; urging counsel to become familiar with the Manual for Complex Litigation; directing counsel for all sides to meet, confer and seek a consensus on all agenda items, and specifically to propose a discovery plan; call for preliminary reports and lists of crucial factual and legal issues, lists of parties and counsel, pending motions, and summaries of similar litigation pending elsewhere; begin the process of selecting lead, liaison or coordinating counsel; consolidate cases for discovery and create a master docket; bar Rule 11 and 56 motions without leave of court; order all parties to preserve all documents and records containing relevant information, with particular attention to electronic data; stay formal discovery and grant extensions of time to answer complaints; and announce whether the judge will handle all matters personally and/or use a magistrate judge for certain issues. Manual for Complex Litigation, at §22.61: .Other procedural and substantive matters typically covered by subsequent CMOs include the following: 1) Identification of narrowing of issues of fact and law. 2) Establishment of deadlines and limits on joinder of parties. 3) Provisions standardizing pleadings or providing for alternatives to formal pleadings (e.g., deem cross-claims interposed). 4) Coordination with related litigation (e.g., MDL and statewide consolidations). 5) Use of master file for docketing, master pleadings, and orders as alternatives to formal pleadings. 6) Provisions determining whether severance, consolidation, or coordination with other actions is desirable; providing for early trial of separate issues. 7) Early resolution of seminal issues, such as subject matter or personal jurisdiction, venue, or statute of limitations. 8) Management of disclosure by embarking on a detailed discovery schedule or provisions for the creation of one. 9) Procedures for referring discovery matters or disputes to a magistrate judge, special master, or referee. 10) Use of protective orders of confidentiality and stipulations as to joint defense privilege. 11) Special form interrogatories or other orders requiring all parties to disclose certain information, such as insurance coverage, medical records, and specifics of damages claimed by plaintiffs. 12) Procedures for management of expert discovery, reports, and depositions. 13) Exemptions from local rules or standing order of the court. 14) Arrangements for sequential settlement conferences, or references to arbitration, mediation, or ADR prospects or procedures. 15) Schedules and deadlines for completion of various pre-trial phases of the case. 16) Appointment of liaison counsel to facilitate communication between court and counsel and between counsel. 17) Provisions for the exchange of documents, the creation of a physical or electronic document depository, or the computerized imaging of documents on CD-ROM. 18) Creation of a master list of parties and attorneys with their addresses and phone numbers and provisions for keeping such a list current and in the possession of the court and all counsel. 19) The date by which all discovery will be completed and/or summary judgment motions will be entertained. Rarely does a jurisdiction's code of civil procedure make provisions for such a comprehensive scheduling order as outlined above. Under most codes or case law, however, trial courts have broad powers to supervise the discovery process and create discovery procedures designed to be flexible and adaptable to the infinite varieties of cases and circumstances that appear in the trial court. See e.g., Atwood v. Warner Electric Brake & Clutch Co., 239 Ill.App.3d 81, 605 N.E.2d 1032, 1036 (1992); Cottle v. Superior Court (Oxnard Shores Co.), 3 Cal.App.4th 1367, 5 Cal.Rptr.2d 882, 886-87 (1992); In re Love Canal Actions, 145 Misc.2d 1076, 547 N.Y.S.2d 174 (1989), modified, 161 App.Div.2d 1169, 555 N.Y.S.2d 519 (1990). In addition to the inherent supervisory powers which enable courts to carry out their duties, most state civil procedure codes and rules contain explicit provisions enabling courts to hold conferences, issue discovery orders, and test the sufficiency of evidence prior to trial. For example, the opinion in Atwood v. Warner Electric Brake, supra, describes how Illinois Supreme Court Rules give trial courts the authority to supervise the procedure and sequence of discovery for convenience of the parties and witnesses and in the interests of justice. Moreover, the Federal Rules of Civil Procedure may be cited as authority to fashion a case management order: Rule 16 permits the court to hold a pre-trial conference to schedule and plan the litigation, Rule 26 mandates initial disclosures of certain core discovery information, and Rule 56 provides a mechanism for summary judgment. Threshold or Phased Discovery Since the purpose of a comprehensive CMO is to engage in cost-effective streamlined procedures to resolve the case, the defense should concentrate efforts to convince the court of the need to sequence discovery along a series of discrete phases. Rarely is "full blown" discovery simultaneously taken by all sides on all claims and defenses an appropriate means to manage such litigation. The court and parties should identify the existence of threshold, dispositive issues which will be litigated at the outset of the case. Phased, sequenced, or targeted discovery on these issues can reduce the number of parties, narrow contested issues, and may, in some cases, resolve the entire litigation. Manual for Complex Litigation §11.422. A phased CMO identifies threshold issues of law and/or fact, and schedules successive, concrete steps or stages of discovery directed at resolution of those issues. Matters of personal or subject matter jurisdiction, statute of limitations, party identification, product identification, product exposure, extent of injury/illness/damages sustained, and, most importantly, causation are typical issues to be resolved in early phases. In the "Agent Orange" chemical exposure product liability litigation, the court faced varying and complex issues of discovery, liability, and causation. Judge Jack Weinstein of New York's federal Eastern District found, however, that the application of the "government contract defense" had the potential to narrow the scope of the entire litigation. As such, Judge Weinstein held that: the court believes that early resolution of this potentially dispositive issue will serve the interests of justice and judicial efficiency. Although justice is always served by the efficient management of any action, this is especially true in this case where any other procedure adopted might subject the parties to years of discovery and trial only to have later generations of judges, lawyers, and litigants discover that any early trial of the government contract defense might have preempted the need for almost all of the discovery undertaken and saved thousands of person-hours and millions of dollars associated with those unnecessary efforts. The parties here are entitled to have this action handled as efficiently and expeditiously as possible and, in the court's considered view, the approach here outlined balances the numerous interests in a way that will best serve those goals In re "Agent Orange" Product Liability Litigation, 506 F.Supp. 762, 796 (E.D.N.Y. 1980). Likewise, the timeliness of plaintiff's claims are necessarily threshold issues. Claims which are time barred under the applicable statute of limitations will be disposed of, regardless of the relative merit of the parties' claims and defenses, and therefore warrant threshold discovery measures in consolidated mass tort proceedings. See In re Pfohl Brothers Landfill Litigation, 175 F.R.D.13, 17 (W.D.N.Y. 1997) (hazardous waste disposal site); Mirabella v. Banco Industrial de la Republica Argentina, 29 App.Div.2d 940, 289 N.Y.S.2d 474, 476 (1968) (commercial litigation). In multi-party litigation involving a variety of products made by several different manufacturers, product identification is a threshold issue. Presently pending in California is a complex litigation involving San Jose semiconductor manufacturing workers who claim that exposure to literally hundreds of chemicals caused cancer and other injuries. The December 15, 1998 CMO plans discovery along a distinct series of phases. In Phase I, most properly termed the product identification phase, plaintiffs were required to provide information relative to their employment, identifying each chemical to which each worker claimed exposure, and information concerning plaintiffs' medical condition. Defendants' initial disclosures were explicitly limited to documents indicating what chemical products were used in the workplace at particular time intervals. No other formal discovery was permitted during this phase. At the conclusion of Phase I, the "chemical lists" compiled through the discovery process will serve to define the universe of chemicals and chemical products at issue for purposes of all further proceedings in the pending actions, including subsequent discovery and trial. In re San Jose IBM Workers Litigation, No. CV772093, CMO No. 1 (Cal.Super.Ct., Santa Clara County, Dec. 15, 1998). "Lone Pine" Orders By and large, the most effective means of phasing discovery in mass tort litigation involves mandating a threshold showing of causation. In what has come to be known as a Lone Pine order, the court adopts threshold standards for claimants to establish a prima facie case of causation before summary judgment motions based on issues of exposure to hazardous substances or causation will be entertained. By doing so, a Lone Pine order essentially requires plaintiffs to "put their money where their mouths are" and may serve to halt the litigation if plaintiffs cannot demonstrate up front that they have the requisite competent scientific proof needed to try the case. So-called Lone Pine orders have their genesis in Lore v. Lone Pine Corp., No. L-3306-85 (N.J.Super.Ct., Monmouth County, Nov. 18, 1986), appeal dismissed, No. A-2502-86TB, (N.J.Super.Ct., App.Div., March 30, 1987). In Lore v. Lone Pine, numerous plaintiffs filed a mass tort lawsuit against 464 defendants. The first named defendant, Lone Pine Corporation, was alleged to have operated a landfill; the remaining defendants were alleged to have been generators and/or haulers of toxic materials. The trial court issued a CMO requiring each plaintiff to document, with respect to the claim for personal injuries, facts of their exposure to alleged toxic substances at or from the Lone Pine landfill, and reports of treating physicians and medical or other experts, supporting each plaintiff's claim of injury and causation by substances from the landfill. Similar requirements were ordered with respect to property damage claims. Plaintiffs in Lore v. Lone Pine offered submissions which were to have established prima facie evidence of causation; they were deemed by the court to be "woefully and totally inadequate." Ultimately, the claims were dismissed. Subsequently, a New York state trial court adopted a Lone Pine-styled CMO in the Love Canal landfill personal injury litigation requiring a prima facie showing of causation as a threshold requirement to proceeding with the litigation. In re Love Canal Actions, supra. Since these seminal cases, courts in a variety of jurisdictions have adopted the Lone Pine mechanism of phased discovery to mass and/or toxic exposure litigation. In Zwillinger v. Garfield Slope Housing Corp., 1998 U.S.Dist.LEXIS, 21107, 1998 Westlaw 623589 (E.D.N.Y.), the plaintiff claimed to suffer multiple chemical sensitivity injuries as a result of "off-gassing" of newly laid carpeting. The court entered a CMO divided into two phases of discovery. Phase I discovery was limited to "discovery on plaintiff's claim that she was exposed to 'toxic substances' released from the carpeting ¿ and that a particular chemical substance ¿ was the proximate cause of plaintiff's alleged injuries. Phase II was the summary judgment phase on the issues of plaintiff's exposure and causation as set forth in Phase I. Summary judgment was awarded to the defendants. In re Mohawk Rubber Co., 982 S.W.2d 494 (Tex.App. 1998), was a state court action where 205 plaintiffs alleged actual or potential injuries due to exposure to rubber products manufactured by some defendants and rubber fumes created by use of machines built by other defendants. The appellate court found that the trial court should have granted defendant's motion to issue a Lone Pine order, as was done in a related action removed to federal district court. In Atwood v. Warner Electric Brake, supra, 120 plaintiffs sued several defendants for damages allegedly sustained from exposure to trichloroethylene, a cleaning solvent. The trial court required plaintiffs to identify their injuries and produce medical reports to causally relate them to their exposure, or be barred from bringing those claims; this step had to be done before the defendants could begin deposing the large number of plaintiffs' experts and witnesses. The appellate court rejected plaintiffs' argument that this requirement of a prima facie showing of injury and proximate cause was a condition precedent to discovery which violated plaintiffs' right to due process. In Cottle v. Superior Court, supra, the CMO required each plaintiff to file and serve a statement establishing a prima facie claim for personal injury and/or property damage, identifying the chemical or toxic substance to which the plaintiff was exposed, the date or dates and place of exposure, the method of exposure, the nature of plaintiff's injury, and the identity of each medical expert who would support that plaintiff's personal injury claim. In Edgar v. Burlington Northern Railroad Co., 1991 U.S.Dist.LEXIS 19240, 1991 Westlaw 315487 (D.Mont.), aff'd, 29 F.3d 449 (9th Cir. 1994), a toxic tort action commenced under the Federal Employers Liability Act, 27 plaintiffs claimed various illnesses as a result of exposure to chemicals at their workplace. The trial court's CMO required the plaintiffs to file a statement that specified the chemicals believed to have caused the alleged injury and a physician's affidavit which set forth the scientific and medical basis for the physician's opinions on causation as to each plaintiff. Procedural and Discovery Matters In addition to laying out the substantive framework for testing the sufficiency of plaintiffs' causation evidence, a good CMO contains a delineation of the procedural matters necessary to administratively manage the mass tort litigation and streamline the discovery process. Such "housekeeping matters" that may be necessary to effectively administer a mass tort litigation were included within the comprehensive CMO issued in the federal multidistrict litigation titled In re Silicone Gel Breast Implant Products Liability Litigation, MDL No. 926 (N.D.Ala. July 23, 1992) (for background on this litigation, including the original MDL order, see 793 F.Supp. 1098 (J.P.M.L. 1992)). The CMO included some of the following provisions: 1) An arrangement for the pro hoc vice admissions of attorneys outside the jurisdiction; a mechanism to identify counsel for all parties, the creation of liaison counsel for discrete groups of plaintiffs, defendants, third party defendants, etc., and steering committees on appropriate issues. 2) Creation of a master docket, proper captioning of individual and consolidated cases, method of service of motions and orders; establishment of a web site or "electronic bulletin board" for the court and/or liaison counsel to post orders, upcoming events, and requests for information. 3) A means to encourage the use of technology for document discovery such as the computerized imaging of documents and productions made on CD-ROMs; coordination of federal-state companion lawsuits, including joint federal-state, plaintiff-defendant paper or computer document depositories and joint federal-state depositions. 4) Procedures for noticing, filing, and applicability of motions to some, one, or all related cases. 5) A schedule of regular, periodic court conferences and procedures to set agendas for the conferences in advance. 6) A requirement that counsel familiarize themselves with the Manual for Complex Litigation. 7) Provisions barring dispositive motions, motions for sanctions, or motions to compel certain types of discovery without leave of court; staying formal discovery, vacating prior discovery orders, and disclosure devices served prior to the consolidation of the cases. 8) A reaffirmation that consolidation of all cases is for pre-trial purposes only, and that the provisions of the CMO do not constitute a determination that any of the consolidated actions will be consolidated for trial. 9) Procedures to facilitate stipulations, authentication of documents, matters for judicial notice, and uniform numbering of documents produced. 10) The use of uniform discovery demands such as interrogatories, requests for production of documents and things, requests for admissions, and medical record collection vehicles such as releases or subpoenas. 11) Time limits upon the service of and responses to discovery demands. 12) Limitations on the amount of discovery that may be propounded within each phase of discovery (e.g., no more than 25 interrogatory questions per side, per phase). 13) A recommendation that discovery may be divided into geographical (e.g., national or regional) and case-specific (e.g., individual plaintiff) categories. 14) A procedure for defining, establishing, and dividing costs of litigation. Provisions for the conduct of depositions may encompass a large and detailed portion of any CMO. For instance, the breast implant MDL cited above included a separate CMO devoted exclusively to deposition protocols. CMO provisions governing a part and non-party depositions may detail both procedural and substantive requirements. They are described in Manual for Complex Litigation, at §41.35: ¿ scheduling and attendance for individual depositions; ¿ conduct of counsel in examination of witnesses, objections, directions not to answer, and private consultations; ¿ subpoenas/production of documents to be used at deposition; ¿ designations of testimony and/or documents as confidential and/or subject to privilege; ¿ marking of deposition exhibits; ¿ procedures for videotaping or otherwise recording deposition testimony; ¿ use of deposition transcripts at trial or in related litigation; ¿ procedures for expediting depositions of in extremis plaintiffs with provisions for a pre-video "discovery" deposition and a video "trial" deposition; ¿ procedures for supplemental deposition testimony to be taken by later-joined parties; and ¿ opportunities to obtain telephonic court rulings should disputes arise during the deposition. Sequencing as to Claimants Mass tort lawsuits with numerous individual claimants require a method to sequence discovery amongst individuals. In an action consolidating the claims of 100, 1,000, or 10,000 claimants, who will be deposed first? Last? One may expect to see courts set up a discovery priority list: e.g., a preference to living plaintiffs, very ill and older plaintiffs, and the like. In the New York "fen-phen" litigation, In re New York Diet Drug Litigation, Index No. 700000/98, CMO No. 10 (N.Y.Sup.Ct., New York County, March 11, 1999), a CMO establishes the exclusive method for expediting discovery and trial readiness for claimants suffering primary pulmonary hypertension, an often fatal disease alleged to be caused by use of diet drugs. In many jurisdictions, discovery and depositions of asbestos claimants proceed on a "first in, first out" basis, where the earliest filed actions proceed first through discovery toward trial. Such methods of prioritizing claims based on age, severity, or disease ultimately contemplate concluding discovery as to all plaintiffs and bringing all claims to trial readiness (or ripe for settlement). In contrast, the court and/or the parties may select a limited group of "bellwether" plaintiffs for prioritized discovery to determine liability, damages, and causation issues for the larger group, deferring causation and damages for the remaining claimants. See, e.g., Sterling v. Velsicol Chemical Corp., 855 F.2d 1188 (6th Cir. 1988) (bench trial of five representative plaintiffs in hazardous chemical landfill action used to determine liability, punitive damages, and individual causation damages); In re Mohawk Rubber Co., supra (in the interests of judicial efficiency, representative plaintiffs, rather than all plaintiffs, to be selected for scheduling order, discovery deadlines, trial dates, and "no evidence" summary judgment motions). The selection and use of bellwethers, while beyond the scope of this article, may be relevant to discovery CMOs because some courts tend to group the concepts. See, e.g., Eggar v. Burlington Northern, supra (six test plaintiffs selected by court for pre-trial discovery and trial; discovery stayed in remaining cases pending resolution of test cases). Conclusion A case management order which phases discovery along threshold issues, eliminates unsupportable claims in early stages, and articulates procedures to cost-effectively streamline discovery is a potent mechanism in complex mass tort litigation. Defense counsel should work with adversaries and the court to create a framework specifically tailored to the needs of the unique litigation by reference to the tools outlined above.