ILNews

DTCI: Managing the mass-tort case

Back to TopCommentsE-mailPrintBookmark and Share

By Christopher A. Pearcy
 

christopher pearcyPearcy

Mass-tort actions present special challenges for defense counsel. The size and complexity of most mass-tort actions require special tools, techniques and procedures to effectively manage the litigation. Defense attorneys who fail to appreciate and plan for these challenges can quickly find themselves overwhelmed and paralyzed by the sheer volume of documents and information involved. This article will discuss the largest challenges to managing the mass-tort case and the tools and practices that will help counsel navigate the complex issues involved.

What is a ‘mass tort?’

A mass tort is a single tort that results in injury to several victims and therefore involves numerous plaintiffs suing one or several defendants. Mass torts are commonly confused with class actions, but these are different and distinct types of cases. In a mass-tort action, the facts and elements of liability can be uniform among plaintiffs, but each plaintiff maintains his own individual claim resulting from his own distinct injuries and damages. Individual trials are standard in a mass-tort action unless the court has good reason to consolidate them. Conversely, the plaintiffs’ claims in a class action are typically not considered individually, and there is only one trial. The elements of both liability and damages in a class action are typically uniform, and plaintiffs are considered only as a group, not individually.

In most mass-tort cases the individual plaintiffs are suing the defendant(s) based on alleged harm caused by a single common product or act. The most frequent mass-tort actions involve products liability, toxic torts and harmful drug claims. A common example is the asbestos litigation that has been conducted for decades. However, mass-tort actions also include disasters like the 2011 Indiana State Fair stage collapse.

Initiating the mass-tort action

Mass-tort litigation is initiated in standard fashion when a group of plaintiffs files joint or individual complaint(s). Plaintiffs can be represented by the same attorney(s) or separate counsel. Very often, several separate complaints related to the same tort are filed independently in the same or different state courts. Parties then must decide if these separate actions are appropriate to consolidate for the purposes of discovery under Indiana Trial Rule 42. If consolidation is granted, the court with the earliest filing date will be tasked to handle most discovery and other pretrial matters. The remaining courts of original filing have little involvement until discovery closes and the trial dates approach.

The benefits of consolidating a mass-tort action

The advantages of consolidation can be considerable for the courts, attorneys and the parties. If consolidated, discovery related to the common liability claims need be gathered only once, rather than repeating the same discovery over and over across multiple cases. The cost savings for both plaintiffs and defendants can be tremendous. Liability experts, defendants, liability fact witnesses and so forth can be deposed once, rather than repeatedly across multiple cases. Both plaintiffs and defendants have the ability to pool their funds and share expenses related to experts and other discovery. This can be especially beneficial for plaintiffs who may not otherwise be able to share costs. The discovery gathered in the consolidated matters can then be used in all the individual trials.

Consolidation of the trials is also a possibility but is rarely ripe for ruling until discovery is concluded. Consolidation under Indiana Trial Rule 42 is limited to actions pending in Indiana courts. It is not a viable option if separate actions are pending in courts of different states.

Use of liaison counsel and/or a special master

Coming to an agreement with hundreds of attorneys on case-management issues can be a daunting task. To simplify this process, liaison counsel and/or a special master can be used to promote the efficient management of the case.

The term liaison counsel refers to an attorney, or small group of attorneys, nominated or elected to represent their respective group of defendants or plaintiffs in case-management matters. Often, different liaison counsel will be picked to represent a subgroup of defendants or plaintiffs on these issues. For example, plaintiffs in a disaster case may choose certain liaison counsel to oversee the group of wrongful death claims, and different liaison counsel to oversee the group of personal injury claims. There are no hard-and-fast rules for the use of liaison counsel. Rather, parties may organize and nominate them as appropriate for administration of their specific case.

Liaison counsel are not outside legal administrators. Usually, they have already appeared in the case for one or more parties. For this reason, other counsel should always be mindful of potential conflicts or situations where liaison counsel could be pursuing the interests of her client to the detriment of the group.

The nature of liaison counsel’s role makes potential conflicts a relatively minor concern. Their primary role is as case managers on procedural issues. They communicate with the opposing counsel and work with them in drafting and negotiating the terms of the case-management plan, preparing master discovery requests for each side, scheduling depositions, and resolving global disputes involving discovery, experts and even settlement matters. Ideally, liaison counsel will regularly consult with her group to get a consensus on these issues and then work with opposing liaison counsel to achieve the group’s preferred result.

Liaison counsel’s role should create little or no roadblock to the interests of individual members of the group and should not impede the members’ ability to properly defend or pursue the claims relevant to their client(s). Individual parties in the group typically have the opportunity to object to liaison counsel’s proposed positions. Court intervention is always available to resolve these disputes if pursued in a timely matter. Liaison counsel should be used in most larger mass-tort cases.

In addition, a special master can be appointed under Indiana Trial Rule 53 to help manage pretrial matters and resolve disputes. The trial court may appoint the special master with the consent of the Supreme Court. The special master’s powers can be as broad or narrow as required by the particular case. The master’s powers will be enumerated by court order and should also be referenced in the case-management plan. In a mass-tort matter, a master can most effectively be used to resolve discovery disputes, amendments to the case-management plan and other routine issues similar to those handled by a magistrate at the federal level. This can greatly reduce the time and resources the court spends overseeing the litigation and may help speed resolution of the case. The special master is not a necessity, but rather an additional option for managing a complex mass-tort case.

Importance of the case-management plan

Having a court-approved case-management plan is necessary for the effective management of a mass-tort case. Disputes over discovery and pretrial matters are common in mass torts due to the sheer number of parties and attorneys involved. The trial rules alone are inadequate to resolve all disputes, and going to the judge every time a dispute arises can take a tremendous toll on the court’s limited time and resources. A well-drafted and comprehensive case-management plan sets clear expectations for the parties, and it can resolve the majority of disputes before they occur.

Liaison counsel will typically take the lead and work with the other side to draft a proposed plan for the comment and approval of their respective groups. Common issues addressed in the mass-tort case-management plan include defining liaison counsel’s role; dispute resolution procedures; protecting privilege between groups of defendants and plaintiffs; procedures for service and amending or answering complaints; powers of the special master, if any; mediation issues; protocols for pleadings and amendments, written discovery and document production (including procedures for electronic filing and service, if available); depositions protocols; expert discovery; and setting pretrial deadlines.

Parties should be willing to amend the case-management plan as it becomes necessary. Case-management plans in mass-tort cases can often be amended dozens of times to accommodate changes in circumstances, parties, deadlines or oversights in the original plan.

Obtaining approval for electronic filing and service in state courts

Indiana state courts remain primarily bound to paper filing systems that permit filing and service only via U.S. mail or, in some situations, fax. These traditional filing and service methods are neither adequate nor practical to handle the volume of pleadings and discovery among the numerous plaintiffs and defendants in a mass-tort action. The problems with the traditional approach to filing and service in a mass-tort case include the obvious waste of paper, postage, time and resources for both the law firms and the court. In some mass-tort cases with paper service, temporary staff may need to be hired and an entire room may need to be reserved to house paper copies of all pleadings and discovery.

Fortunately, advances in technology have begun to provide alternatives to traditional paper filing and service methods. A warehouse of documents can now be stored on a 3.5-inch hard drive that will fit into a jacket pocket.

Electronic service is permitted by order of the trial court where the action was filed or consolidated. E-service is permitted statewide because it involves only the method that attorneys serve pleadings and discovery to each other.

However, the availability of electronic filing with Indiana state courts remains far more limited. Since 2006, our state courts have had authority to pursue electronic filing programs by submitting written requests for approval of their pilot program to the Division of State Court Administration. In 2007, the Indiana Supreme Court formalized the requirements of such a plan in the appendix to Administrative Rule 16. These requirements were further clarified by the Supreme Court in the 2010 amendments to the rule.

Despite these efforts, only Marion County and Lake County have approved e-filing pilot programs. From a case-management perspective, this makes both counties preferred venues for mass-tort actions. The lack of participation by other counties suggests the pilot project process is too limited. This has prompted the Division of State Court Administration to convene a temporary advisory committee to study and recommend rules that would better enable all Indiana courts to initiate e-filing. This is potentially a big step toward a uniform e-filing system across Indiana’s courts.

In the two counties that presently allow e-filing, it can be approved only on a case-by-case basis when special circumstances justify its use. Even then, the trial court must petition the Supreme Court for permission to add the case to its e-filing docket under its previously approved plan.

Implementing electronic filing and service

Approval to use e-filing and e-service is just the first step. Implementing these electronic methods presents additional hurdles. Attempting e-service via an email service list is a dangerous proposition, especially when hundreds of attorneys are involved and additional attorneys appear or withdraw on a regular basis. Further, different attachment limits among counsel can create additional difficulties. A third-party vendor for e-filing and e-service is typically the best solution.

LexisNexis File & Serve provides online services for managing both e-filing and e-service in mass-tort cases. It is also the only approved e-filing service for the Marion County courts. All attorneys who appear are required to register with LexisNexis File & Serve, and this service allows for easy e-service and/or e-filing with a few clicks of a mouse. An email with a link to the served document is then instantly delivered to all by LexisNexis. All documents served and/or filed are archived and can be easily searched and accessed at any time. This allows counsel to better manage the thousands of documents produced, served or filed. While Marion County is the only Indiana venue that presently uses LexisNexis for e-filing, it can be used statewide for e-service if approved by the trial court.

Electronic discovery

LexisNexis File & Serve also provides a good method for electronically serving and responding to discovery requests. However, LexisNexis File & Serve has some limitations with larger files. While there is technically no file size limit, LexisNexis File & Serve can often timeout when attempting to upload documents larger than 10 MB. Ninety-nine percent of pleadings and discovery are smaller than this, but for that remaining one percent, the best options are to either break up the document into smaller files or to use an online document repository. Some court reporting services, such as Stewart Richardson, provide these document repository services. Service of larger files can then be achieved by having the files uploaded to the repository and notifying all counsel by letter served via LexisNexis File & Serve. Whichever procedures are used, they should be duly outlined in the case-management plan.

Despite their complex and voluminous nature, most mass-tort cases can be made manageable through the proper use of technology and case-management techniques.•

Mr. Pearcy is a senior associate at Hume Smith Geddes Green & Simmons LLP in Indianapolis. He is a member of the DTCI Trial Tactics Committee. The opinions expressed in this article are those of the author.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. The child support award is many times what the custodial parent earns, and exceeds the actual costs of providing for the children's needs. My fiance and I have agreed that if we divorce, that the children will be provided for using a shared checking account like this one(http://www.mediate.com/articles/if_they_can_do_parenting_plans.cfm) to avoid the hidden alimony in Indiana's child support guidelines.

  2. Fiat justitia ruat caelum is a Latin legal phrase, meaning "Let justice be done though the heavens fall." The maxim signifies the belief that justice must be realized regardless of consequences.

  3. Indiana up holds this behavior. the state police know they got it made.

  4. Additional Points: -Civility in the profession: Treating others with respect will not only move others to respect you, it will show a shared respect for the legal system we are all sworn to protect. When attorneys engage in unnecessary personal attacks, they lose the respect and favor of judges, jurors, the person being attacked, and others witnessing or reading the communication. It's not always easy to put anger aside, but if you don't, you will lose respect, credibility, cases, clients & jobs or job opportunities. -Read Rule 22 of the Admission & Discipline Rules. Capture that spirit and apply those principles in your daily work. -Strive to represent clients in a manner that communicates the importance you place on the legal matter you're privileged to handle for them. -There are good lawyers of all ages, but no one is perfect. Older lawyers can learn valuable skills from younger lawyers who tend to be more adept with new technologies that can improve work quality and speed. Older lawyers have already tackled more legal issues and worked through more of the problems encountered when representing clients on various types of legal matters. If there's mutual respect and a willingness to learn from each other, it will help make both attorneys better lawyers. -Erosion of the public trust in lawyers wears down public confidence in the rule of law. Always keep your duty to the profession in mind. -You can learn so much by asking questions & actively listening to instructions and advice from more experienced attorneys, regardless of how many years or decades you've each practiced law. Don't miss out on that chance.

  5. Agreed on 4th Amendment call - that was just bad policing that resulted in dismissal for repeat offender. What kind of parent names their boy "Kriston"?

ADVERTISEMENT