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Judicial Management of Mass Tort Cases

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Multidistrict litigation presents a microcosm of larger phenomena rippling through the broader civil system: managerial judging, increasing use of technology, and efforts to promote efficiency and preserve judicial capacity (including through specialized courts), among others. Understanding the judicial system writ large requires grappling with these trends—and recognizing their effects on plaintiffs.

Case Management Clearinghouse: An Annotated MDL Toolkit

For many involved in MDLs, including judges new to the management challenges that they present, the suits present a host of complex decisions but a lack of associated guidance. One stakeholder recently told us that these decisions—many of which arise in the first few months after cases are transferred—“can have profound and sometimes hidden effects down the road.”

This academic year, the Rhode Center is working to push forward improved toolkits for judges and practitioners preparing for, or engaging in, large-scale aggregate litigation. We hope this tool will ultimately inform judges’ crucial organizational and management decisions, help attorneys navigate key milestones and identify major questions, and support litigants interested in better understanding the labyrinthine system that their claim has entered. To that end, the tool will encompass a wide range of orders, including (among others) those that:

  • “verify” plaintiffs’ claims (e.g., census orders, plaintiff fact sheets, and/or Lone Pine orders);
  • seek applications for the plaintiff steering committee/executive committee;
  • appoint and/or structure the plaintiff steering committee/executive committee;
  • appoint/supervise magistrate judges or special masters (or decline to appoint same);
  • structure discovery;
  • structure common benefit fees;
  • facilitate cooperation/interaction with parallel state litigation;
  • set forth processes to vet experts;
  • create MDL webpages; and
  • select and schedule bellwether trials.

More generally, we are looking for examples of orders strong enough to guide future judges, attorneys, and scholars—across any type. To submit an order, please feel free to send orders to mdl-orders@stanford.edu.

Deep Dive: Lone Pine Orders

Lone Pine orders are a subset of the case management orders used in large tort cases. They typically require claimants to present prima facie injury, exposure, and causation evidence by a specific date—or risk dismissal. Despite their importance and wide acceptance, however, they are often unpublished and remain undertheorized. In addition to scholarly work on this topic, Nora Freeman Engstrom, with support from the Stanford Law School library, collected and catalogued dozens of previously-unavailable examples.

The use of Lone Pine orders is significant on its own—but is also an embodiment of several concurrent trends in federal litigation: increasingly rapid disposition of claims, the arrival of new and uncertain procedural mechanisms, and the now-familiar tactics of managerial judging. The Rhode Center is committed to understanding how plaintiffs’ claims are treated within this evolving system—and how, and whether, the courts continue to protect plaintiffs’ substantive and procedural rights.