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MDL Toolkit

How judges can reduce nonmeritorious suits in a MDL

Though the majority of filed tort lawsuits are genuine, particular circumstances may merit increased scrutiny of claim validity: when plaintiffs’ injuries are difficult to verify, causation or exposure is contestable, and claim volumes are high. Nora Freeman Engstrom, The Lessons of Lone Pine, 129 Yale L.J. 2, 33. There are several different methods that courts employ to weed out nonmeritorious suits in an MDL–the initial case census, plaintiff fact sheets, and Lone Pine orders. 

First, judges may issue initial case census forms to obtain data on every filed and unfiled case in the MDL. These forms are standardized and brief, often seeking basic information about usage and injury. Such information can be helpful not only in weeding out plaintiffs who are unable to provide such details, but also in ensuring that the selected MDL leadership is adequately representative of the different types of cases present. Coping with COVID: Continuity and Change in the Courts, 104 Judicature 15, 18.

Plaintiff fact sheets are standardized court-approved forms that seek a broader set of information. An individual plaintiff served with a fact sheet generally must submit information about her background, her injury, past claims for compensation, and the identity of her diagnosing physician. As with Lone Pine orders described below, failure to complete the sheet may lead to dismissal without prejudice. Scholars generally agree that fact sheets have benefits–for example, by aiding in the selection of bellwether cases–but some have also expressed concerns about the burden they place on plaintiffs. See, e.g., Elizabeth Chamblee Burch, Nudges and Norms in Multidistrict Litigation: A Response to Engstrom, 129 Yale L.J. 64.

Lone Pine orders are case-management orders that require claimants to come forward with prima facie injury, exposure, and causation evidence by a specified date–or face dismissal. They can be issued both pre-and post- discovery. Though less common than fact sheets, these orders have been used in some of the most prominent toxic-tort cases of all time. Such orders aim to expedite plaintiff-side discovery, identify plaintiffs with meritless claims, and streamline the ensuing litigation by removing them. Yet, scholars have found that they are often inconsistently applied and circumvent important procedural protections for plaintiffs by extinguishing their access to discovery and meaningful appellate review. See generally Nora Freeman Engstrom, The Lessons of Lone Pine, 129 Yale L.J. 2. These orders are far more laborious and expensive to complete than initial case census forms or plaintiff fact sheets, as they often require evidence of specific causation and supporting testimony from qualified experts. Id. at 22. Some courts believe that Lone Pine orders are an “extraordinary procedure” that should only be used when all other protections have been exhausted; others courts see their use as “routine.” Id. at 39-40.