Understanding the Effects of Sequenced Discovery in Mass Tort Litigation: A 2016
In mass tort litigation, the first issue that a defendant seeks to resolve is general causation. Pursuing sequenced discovery that first focuses on general causation can resolve a litigation earlier and can save a huge amount of time and money. It has already been proven in courts across the U.S.
In re Viagra Prods. Liab. Litig., the court ordered that the first phase of discovery for all cases shall be focused on the issue of general causation alone. It explained that early resolution of general causation is concurrent with the recommendation of the Manual for Complex Litigation. The decision to engage sequenced discovery was proven to be beneficial as the defendant’s motions to exclude all of plaintiffs’ general causation experts was ultimately granted, hence, resulting to a summary judgment in favor of the defendant.
The Zoloft birth defect product liability multi-district litigation provided yet another example of the benefit of having plaintiffs establish general causation early in the litigation. The parties in the Zoloft litigation focused in general causation discovery simultaneously with other fact and expert discovery allowing substantial time and money for other issues besides general causation.
However, despite the benefits of the sequenced discovery in mass tort litigation, counsel should first carefully decide whether and how to pursue sequenced discovery. Initially, counsel must identify the unique factors in the litigation that may be unfavorable for sequenced discovery request. It is important to determine whether sequenced discovery is appropriate for a particular litigation. Before asking the court to delay other discovery, counsel should consider both the strength of defendant’s challenge to plaintiff’s general causation evidence and the impact of the sequenced discovery on the entire litigation. Additionally, if a court is unfamiliar with sequenced discovery, the counsel should inform the court about the efficiency of using sequenced discovery in mass tort litigation.
The Knowledge Group assembled a panel of key thought leaders to provide the audience with an in-depth two-hour, LIVE Webcast during which they will review and discuss the application of Sequenced Discovery in Mass Tort Litigation. Speakers will provide the audience with practical advice on early identification general causation and submission of evidence thereof to the court.
Key topics include:
- Sequencing Discovery in Mass Tort Litigation – An Overview
- Federal Rules of Civil Procedure and Manual of Complex Litigation
- Methods of Implementing Sequenced Discovery
- Discovery Sequencing in a Multidistrict Litigation
- When and How to Pursue Sequenced Discovery
Judith A. Perritano, Managing Partner
Pierce, Davis & Perritano, LLP
AN OVERVIEW OF SEQUENCING DISCOVERY
- Sequenced discovery is typically used in large and complex tort cases (Mass Torts)
- Ways in which sequenced discovery can be beneficial to both the courts and the parties
- The Federal Rules of Civil Procedure (Rules 16 and 26) and the Manual of Complex Litigation provide support for sequencing discovery
- State court authority to sequence discovery derives from: state rules modeled after the federal rules; inherent authority to control and manage dockets; or statutes expressly providing docket management authority
- Discovery sequencing may include limits on topics or issues to be discovered (i.e. matters that appear pivotal, necessary for dispositive motions, or necessary for resolution – such as general causation)
- Typical methods of implementing sequenced discovery (CMOs and Lone Pine Orders)
Jennifer A. Creedon, Partner
Martin, Magnuson, McCarthy & Kenney
- Lone Pine Orders
- Overview of defense arguments for sequenced discovery
- Overview of plaintiff arguments against sequenced discovery
- Drafting Case Management Orders
- Uniformity in discovery
- Cost Effectiveness
- Strategic Concerns – consolidation / bifurcation and punitive damages
- Asbestos - History & Modern Approach to Sequenced Discovery in the Archetypal Mass Tort
- Update on NYCAL CMO
- Update on Baltimore CMO/Lung Cancer Cases
- Talc Cases – Will Sequenced Discovery be Employed & Effective?
Mark Friesz, Attorney
Darger Errante Yavitz & Blau LLP
- Initial Discovery Devices In Mass Tort Litigation: Plaintiff Fact Sheets And Responses To Interrogatories
- Obtaining Compliance and Addressing Deficiencies in Initial Discovery
- Asbestos Litigation - Issues of Causation and Sequence of Discovery
Sara J. Triplett, Of Counsel
McCullough Ginsberg Montano & Partners LLP
- What are bellwether trials and how are they handled in an MDL proceeding? (This topic includes how discovery is handled in relation to bellwether trials.)
- Handling of decisive issues in discovery sequencing, such as choice of law and judicial estoppel. For example, how does a court decide which law to apply? Why is that important?
- How does federal/state coordination affect discovery sequencing in a MDL action?
Who Should Attend:
- Trial Lawyers
- Mass Tort Litigation Attorneys
- Corporate Counsel
- Claims Managers and Adjusters
- Safety and Risk Management Officers
- Product Development Managers
- Product Design Officers
- Other Related Professionals
Jennifer Creedon is a trial attorney who represents large and small companies in asbestos, product liability and business litigation. Whether a company’s litigation is confined to one lawsuit or requires a multi-lawsuit solution, Jen can craft a defense strategy that fits the company’s needs.
Jen has defended toxic tort and product liability actions in Massachusetts, Rhode Island and Connecticut. She has served as local, regional and national counsel for companies with toxic tort and asbestos litigation. Jen has been part of a national counsel team for a Fortune 500 company, drafted nationwide discovery and designed national trial strategy, including preparation of corporate and expert witnesses.
Additionally, Jen has handled Federal Multidistrict Litigation, including cases consolidated in MDL 875 and the Maritime Docket. She can also coordinate a company’s compliance with the Medicare, Medicaid and SCHIP Extension Act of 2007.
Jennifer Creedon is a trial attorney who represents large and small companies in asbestos, product liability and business litigation. Whether …
Judith A. Perritano is the Managing Partner of Pierce Davis & Perritano LLP. She has more than two decades of experience in the defense and trial of complex personal injury cases. Ms. Perritano handles a variety of multi-party cases, from pre-suit investigation through trial including Products Liability, toxic torts, automobile, eminent domain, and construction-related claims. She also defends various toxic tort claims including various environmental exposures, such as asbestos, carbon monoxide, latex and lead, allegations of “sick building syndrome”, and multiple chemical sensitivity. Additionally, Ms. Perritano is counsel to several asbestos clients in Massachusetts, Rhode Island, and Connecticut.and serves as National Coordinating Counsel for an equipment manufacturer in asbestos litigation. Ms. Perritano is a graduate of Suffolk University Law School, a member of the American Bar Association and Defense Research Institute and has been named a top rated products liability attorney in Boston by Super Lawyers.
Judith A. Perritano is the Managing Partner of Pierce Davis & Perritano LLP. She has more than two decades of …
Sara Triplett’s practice emphasizes complex commercial litigation, including actions involving mass torts, class action claims, and products liability, as well as soft intellectual property. Sara is admitted to the State Bar of California, State Bar of Florida, and State Bar of New York, as well as a variety of federal courts throughout the United States.
Sara is presently responsible for managing the defense of all New York litigation for a Fortune 500 client. Previously, she was National Coordinating Counsel for a Fortune 1000 client, and defended it in over 120 federal multidistrict litigation mass tort cases. During this time, she negotiated dismissals with plaintiffs’ counsel in over 20 high profile mass tort cases, resulting in a significant decrease in potential exposure and national press coverage. Additionally, she obtained several dismissals, with prejudice, of high profile mass tort bellwether suits due to her strategic deposition and discovery handling, as well as her dispositive motion practice.
Sara Triplett’s practice emphasizes complex commercial litigation, including actions involving mass torts, class action claims, and products liability, as well …
Mark Friesz is an experienced litigator who has successfully resolved hundreds of complex product liability and mass tort matters. He has extensive experience defending manufacturers of pharmaceuticals and medical devices, and defending cases alleging infrastructural failures, premises liability, and exposure to toxic substances including asbestos and lead paint. Currently, much of Mark’s practice at DEYB involves the aggressive investigation and defense of asbestos product and premises liability cases. Prior to joining the private sector, Mark served as an Assistant Corporation Counsel in the New York City Law Department’s Special Litigation Unit, where he also litigated high-profile mass tort cases. Mark was recently named by The National Black Lawyers as one of its “Top 40 Under 40.”
Mark Friesz is an experienced litigator who has successfully resolved hundreds of complex product liability and mass tort matters. He …
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About Martin, Magnuson, McCarthy & Kenney
Since 1957, Martin, Magnuson, McCarthy & Kenney has been committed to protecting our clients and providing exceptional representation. Our attorneys possess extensive litigation and appellate experience and have significantly impacted the development of tort law in Massachusetts. In the last five years, we have obtained over 100 jury verdicts in favor of our clients in high exposure cases involving death, serious brain damage and catastrophic personal injuries. We have represented clients on appeal before the Supreme Judicial Court of Massachusetts, Massachusetts Court of Appeals and First Circuit Court of Appeals.
Due to the depth of our experience, members of our firm have been requested to serve as arbitrator or mediator by private litigants to assist in alternative dispute resolution. Our experience and commitment to quality legal representation and proven results distinguish MMM&K.
About Pierce, Davis & Perritano, LLP
Pierce Davis & Perritano LLP is a full service civil litigation and trial firm based in Boston. With more than 20 attorneys, the firm aggressively defends clients in complex product liability, toxic tort, municipal liability and other specialty liability litigation. The attorneys also have extensive experience providing consultation and litigation services to businesses in areas ranging from contractual relations to employment practices. PDP’s smaller size fosters an atmosphere of efficiency, responsiveness, and personal connection not found in larger firms.
Founded in 1998, the firm represents a wide range of businesses, municipalities, governmental and quasi-governmental agencies, individuals, and their insurers.
About McCullough Ginsberg Montano & Partners LLP
McCullough Ginsberg Montano & Partners LLP (MGM) is a litigation and corporate law firm known for its dedication to its clients, legal expertise and successful outcomes. The members of MGM collectively bring a vast amount of litigation experience representing small businesses, as well as some of the largest publicly and privately held companies in the United States and abroad, in areas including products liability and toxic tort defense; environmental litigation; corporate and commercial litigation; intellectual property; and international arbitration. MGM's practice also encompasses commercial landlord tenant litigation, class action litigation, and appellate work. Whatever the issue – MGM is responsive, dedicated, and results driven.
About Darger Errante Yavitz & Blau LLP
Darger Errante Yavitz & Blau LLP (“DEYB”) is a litigation firm based in New York City offering creative, practical and cost-effective solutions for the variety of issues confronting businesses today. As a boutique litigation firm, DEYB prides itself on being attentive, responsive and dedicated to its clients’ individual needs. The firm has a national reputation for expertise and success in managing and defending complex product liability cases, mass tort claims, and other business disputes for Fortune 500 companies, small businesses and individuals. DEYB attorneys have spent years developing and honing their legal skills at top law firms, and bring this “big firm” experience to every facet of their practice.