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DTCI: Managing the mass-tort case

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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.
 

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  1. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  2. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  3. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  4. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  5. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

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