Defending a Product Liability MDL Remand: A Checklist for Taking over a Remanded Case

Under 28 U.S. Code § 1407, cases are consolidated for “pretrial proceedings” in a multidistrict litigation (MDL). Typically, this includes common liability discovery, general expert practice (including motions to exclude), and summary judgment motions. Eventually, the MDL judge has done everything possible to settle or finalize the litigation and orders the remaining parties out. Some cases receive the boot thoroughly vetted and prepared to go to trial. Others may need more love. Either way, it is important for the parties picking up the case on remand to check off a few key items.

The Joint Designation of the Record on Remand

Once a transfer order is entered by the MDL court, the parties are instructed to prepare and file a joint designation of the record on remand. This requires a meet and confer between the parties and identification of what documents on the MDL docket need to be included in the record for trial and perhaps appeal. While it is tempting to designate the kitchen sink, it is not necessarily advisable to do so. Important filings should be preserved for appeal, but over-designation of irrelevant discovery issues and other MDL squabbles can cause great annoyance to the MDL clerks­—who have to package the documents—and annoyance and confusion for the transferor court—who may be receiving a decade of docket entries dropped on its head like a ton of bricks. But the parties should include (1) initial pleadings; (2) important pretrial orders; (3) applicable case management orders; (4) protective orders; (5) relevant motions to exclude experts and orders on those experts; (6) dispositive motions and orders on those motions; and (7) pending motions.

Once the case is received by the transferor court, it is time to prepare for an initial status conference.

Preparing for the Initial Status Conference

Update attorneys of record. Prior to appearing before the court at the initial status conference, counsel should ensure that the docket accurately reflects the current attorneys of record. This will likely involve substituting trial and settlement counsel for MDL counsel but may also involve substituting new local counsel for local counsel retained prior to the MDL.

1. New local counsel, if any, should file a notice of appearance.
2. Then local counsel should file a motion for withdrawal and substitution of counsel.
3. This motion should be followed by motions for trial and settlement counsel to appear pro hac vice. This procedure varies by court and sometimes by judge, so be sure to review local rules and any judge-specific rules to learn the proper procedure for special or limited appearances.
4. After the court grants the motions to appear pro hac vice, trial and settlement counsel should enter notices of appearance.

Get up to speed on the plaintiff’s case. Obtain access to any medical records, expert reports, and deposition transcripts. If a vendor has prepared a medical chronology, ask for the most updated copy. Review the plaintiff’s complaint or complaints, both long and short form, to understand the plaintiff’s alleged injuries and any causes of action unique to the plaintiff or the jurisdiction. Standardized MDL complaints often diverge significantly from the law of the remand jurisdiction. Consider the merits of a motion to dispose of improper causes of action if deadlines permit, as it is unlikely a jurisdiction-specific motion was filed in the MDL. If it is too late to file a motion prior to trial, start thinking about a directed verdict.

Identify additional discovery. Soon after the case is remanded, consider what additional discovery is needed to prepare adequately for trial. Check MDL orders specifying what discovery was to have been completed in the MDL and what has been left for after remand. Make this a priority because the court may impose fast deadlines. Assess the status of medical records and employment record collection. Be sure to request and obtain updated records to learn what treatment the plaintiff has received for any alleged injuries since records were requested during the MDL. Often MDL cases have sat, untended, for years and medical records are sadly out of date.

Also consider requesting records from earlier treatment because records collection during the MDL may well have been incomplete. Cases “parked” in the MDL after remand now require individualized attention. While cost is a factor that must be considered and weighed against the likelihood of resolution, it is crucial, if the case goes to trial, to have a complete set of medical records in order to support alternative causes, spot issues with the plaintiff’s credibility, understand the plaintiff’s background, and prepare for direct and cross-examinations. Consider supplemental depositions to update the damages case. Review the depositions taken during the MDL. Confer with the plaintiff’s counsel to determine what fact witnesses, probably family and friends, the plaintiff intends to call at trial. Consider whether there are any other depositions the defendant should take prior to trial.

Decide if expert reports need supplementation. Most MDLs require “general” expert testimony, particularly on causation, to be completed prior to remand. However, the case may be stale enough that expert supplementation makes sense for both parties. Supplementation is just that—it should not excuse crucial omissions by a party bearing the burden of proof that should have been produced while the case was in the MDL. Expert supplementation may also lead to additional depositions, which should be part of the consideration. Because the purpose of an MDL is frustrated when the parties are allowed to relitigate everything that was accomplished during the MDL, any party seeking additional discovery or expert report supplementation should be prepared to show good cause. The following are among the factors to consider in supplementing expert reports:

1. important events that would significantly change or add to the expert’s opinions; for example, a major medical surgery for a personal injury plaintiff.
2. breakthroughs in scientific literature that post-date the expert deadline.
3. additional needs from the expert to accomplish trial presentation strategy, including demonstratives.
4. the goose and gander conundrum: How will the other side choose to supplement?

Identify unresolved motions for the trial court. MDL judges sometimes leave important rulings for the trial court, including motions to exclude experts or summary judgment motions. It is important to look for already fully briefed motions in the record that don’t have an accompanying order. In addition, MDL orders can include reservations of rulings for the trial judge, particularly orders ruling on motions to exclude experts. It is important to review the MDL judge’s orders on experts prior to the initial status conference to understand which issues have been ruled on and which have been reserved.

Understand the roadblocks to settlement. The parties should have a working understanding as to why the case didn’t settle at the MDL. Some common reasons that cases are not ready to settle are the following:

1. The plaintiff’s lawyer was not actively engaged in working up the MDL and is not prepared to discuss the specifics of the case. This may be rectified by the time of the initial status conference, so it may be worth engaging in settlement discussions again in the lead-up to the status conference.
2. The parties may have unreasonable expectations about the value of the case. Under these circumstances, a settlement conference may be the best opportunity to resolve the case.
3. The case may not have been properly developed during the MDL for a variety of reasons and the parties need more information about the case to determine its valuation. Under these circumstances, it may be helpful for the parties to agree to and propose additional limited case-specific discovery at the time of the initial status conference.
4. The case may need to go to trial. If the parties understand the case and are still far apart as to the case’s value, this may be a case that needs to see a jury.

After the initial status conference, it is time to begin preparations for trial in earnest. This includes jury research, jury instructions, and trial presentation.

Jury Research

In preparation for trial and to inform settlement negotiations, consider the venue and jury pool. Compare this venue and jury pool against others where any bellwether cases were tried or where any remanded cases were tried. Identify any evidence or discrete issues that may pose a problem or serve as a benefit specific to the venue and jury pool. Perform jury verdict research and identify any unique considerations for the client. Local counsel should draw on prior experience in the venue to tell trial and settlement counsel, and the client, what to expect.

Jury Instructions

Start thinking about jury instructions and identify any model instructions available in the jurisdiction. Local counsel may have examples of instructions provided to juries in prior similar cases. Understanding from the outset what the jury will likely be told about the plaintiff’s causes of action and the evidence will provide a road map for any additional discovery and for trial preparations. Such an understanding can also lay the foundation for identifying weaknesses in the plaintiff’s case-in-chief and for moving for a directed verdict on discrete causes of action.

Trial Presentation

Preparing for trial in a remand case is both easier and more difficult. Remand courts sometimes expect the parties to be prepared to try the case on an expedited basis—particularly if the case has been pending for years in a lengthy MDL proceeding—so deadlines may come quickly. On the other hand, there is a good chance that trial preparation in another remand or bellwether trial can be used as guidance and to save time. Exhibit lists, deposition designations, objections to exhibit lists and deposition designations, demonstratives, and motions in limine can often be leveraged, but it is also important to avoid becoming over-reliant on what was done before. MDL cases are not class actions for a reason. Each case has its own set of unique facts and circumstances that need to be considered. The defendant should also consider whether or not a corporate representative is required in the jurisdiction or would have a positive impact on a jury.