An Empirical Evaluation of Proposed Civil Rules for Multidistrict Litigation

Abstract

Recently the Civil Rules Committee of the Judicial Conference of the United States began considering the need for specific rules related to multidistrict litigation (MDL) proceedings. The possibility of creating rules specifically for MDL has its origins in recent proposed legislation prompted by groups typically tied to the defense bar. One area under consideration by the Civil Rules Committee is the use of fact sheets in MDL proceedings. These party-negotiated questionnaires, directed at parties to the case (both plaintiff and defendant), provide judges and attorneys with information 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, there is very little published empirical work looking at fact sheets in MDL proceedings. This is the first such 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 were the procedures for complying with the case management order, what information was collected, and what effect they have on the termination of the proceedings. The proceeding ranged between 3 and 40,533 actions and were open a minimum of 118 days and a maximum of 3,811 days. Actions terminated within the proceeding at least 98% of the time, but little information is available on how the actions terminated. Proceedings were centralized in 40 districts. We find that fact sheets are ordered more than half the time, and were most likely to be used in the largest proceedings. The information in fact sheets is used in several ways within the proceeding, including identifying cases for bellwether trials and winnowing cases, and the use of fact sheet processes leads to faster 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 the use calls 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.