An Empirical Evaluation of Proposed Civil Rules for Multidistrict Litigation

Abstract

The Civil Rules Committee of the Judicial Conference of theUnited States recently began considering the need for specificrules regarding multidistrict litigation (MDL) proceedings. Thepossibility of creating rules specifically for MDL originates withrecently proposed legislation prompted by groups typically tiedto the defense bar. One area the Civil Rules Committee isconsidering concerns the use of fact sheets in MDL proceedings.These party-negotiated questionnaires—directed at bothparties to the case—inform judges and attorneys about thescope of the proceeding. Understanding whether these casemanagement tools are currently being used and how they workwith other tools, such as bellwether trials, in MDL proceedingswill help inform a discussion of the need for specific MDL rules.Despite their importance, very little published, empirical worklooks at fact sheets in MDL proceedings. This is the firstcomprehensive study of the use of fact sheets.Using a sample of 116 mass tort proceedings—typicallyinvolving products liability—centralized through MDLbetween 2008 and 2018, we examine when fact sheets wereordered, what the procedures for complying with the casemanagement order were, what information was collected, andwhat effect fact sheets had on the termination of theproceedings. The proceedings ranged between 3 and 40,533actions and were open a minimum of 118 days and a maximumof 3811 days. Actions terminated within the proceeding at least 98% of the time, but little available information existsregarding how the actions terminated. These proceedings werecentralized in forty districts. We find that fact sheets wereordered more than half the time and were most likely to be usedin the largest proceedings. The information in fact sheets wasused in proceedings in several ways, including to identify casesfor bellwether trials and winnowing cases. Using fact sheets,moreover, led to quicker termination of the proceeding, all elsebeing equal. Our sample of proceedings suggests judges use factsheets to organize products liability proceedings when judgesperceive they are merited, after considering the size of theproceeding or the nature of the litigation. The frequency withwhich judges already employ fact sheets and the variation inuses call into question both the need for a rule and how to writeone without tying the hands of transferee judges. Many issuesregarding how fact sheets are used remain to be studied morein-depth. We encourage future studies regarding how factsheets are used across MDL proceedings