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
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.
Williams, Margaret S. and Cantone, Jason A.
"An Empirical Evaluation of Proposed Civil Rules for Multidistrict Litigation,"
Georgia Law Review: Vol. 55:
1, Article 5.
Available at: https://digitalcommons.law.uga.edu/glr/vol55/iss1/5