Many plaintiffs’ lawyers with cases filed in multidistrict litigation (MDL) get the wrong idea that their matters are being handled by the leadership and that they themselves have little responsibility for looking out for their individual clients. But decisions by judges managing MDLs involving product cases have put plaintiffs’ lawyers on notice that they must pay close attention.
Indeed, any complacency that someone else is handling your case once you have filed it into a product liability MDL can lead to the dismissal of the case and potential suit by your client.
Here are six areas to focus on client service:
Plaintiff fact sheets. It is up to counsel for the individual plaintiff to provide in a timely fashion all the discovery demanded by defendant. Almost always, the process begins with providing a plaintiffs fact statement (PFS) or census information, and there are deadlines for compliance. Experienced counsel will often have the client fill out the forms at the time of commencement of suit, since clients often diddle-daddle.
Almost inevitably the defendant, using its army of paralegals, will find fault with a submitted PFS, calling for providing more detailed information. Here again there are deadlines for compliance.
Medical records. In some MDLs, claimants are required to provide medical records, so here again counsel must plan ahead.
Pretrial orders. While the leaders in some MDLs provide up-to-date information about what is going on in the litigation and remind individual counsel of deadlines, others may be uncommunicative. This puts the burden on counsel to keep current, and here they must learn about the proceedings directly.
Almost all the events which affect the individual case are contained in pretrial orders which the court issues. These can almost always be found online if one goes to the website established by the court for the particular MDL. An active listing of all these sites can be found in chapter 15 of Litigating Mass Tort Cases (but hint: just ask generative AI).
Bellwether selection. As the MDL proceeds, there comes the time for selection of bellwether cases. Often the leadership will seek information from counsel about the individual cases which will assist them in selecting strong cases. Here you owe it to your client to provide the information promptly. Or the court may randomly select your cases, and now you have new deadlines to provide details about exposure and injury.
Client updates. Another obligation that plaintiffs’ counsel often falter on is keeping the clients informed—whether you have one client or a hundred. The most common way of keeping the clients up to date is a newsletter. Try to put one out for each development, and if there is an extended period of no developments, send a letter that says there is no news and why. For example, in the Roundup litigation, many communications were needed to explain why litigation with the government over liens delayed payment.
Settlement. When the topic of a settlement raises its head, lackadaisical lawyers may suddenly become overwhelmed. If it is an inventory settlement and defense counsel is coming to your firm to discuss settlement of all your cases, how do you know the going value? If it is some sort of opt-in plan with set amounts based on injury and other factors, all to be substantiated by records, counsel must provide them in short order, or the settlement participation may be lost.
Notwithstanding attacks by the defense bar on the current MDL method of handling mass torts, the system works. It is up to local counsel to assist in keeping it working.
