Bolch Judicial Institute
Bolch Judicial Institute
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Materials

Program materials include excerpts from:  (1) Duke Law Guidelines and Best Practices for Large and Mass-Tort MDLs (second edition); (2) Vioxx case-management orders and two court opinions; (3) Excerpts from transcripts of status hearings in Vioxx MDL; and (4) Case-management orders from other mass-tort MDLs.  [Full text of the Vioxx  transcripts of all status hearings can be found at http://www.laed.uscourts.gov/case-information/mdl-mass-class-action/vioxx.]

Vioxx materials will be used as a pedagogical base for comparison with actions taken in other mass-tort MDLs.

DAY 1 — Overview of Mass-Tort MDL

SESSION 1: Purpose and timing of MDL; strategic decisions from plaintiff’s and defense perspectives on filing state actions or seeking MDL; factors involved in deciding when to seek MDL and in recommending which district and before which judge; who files motion to centralize; tag-along cases (Walker – Herndon, Geller, Rice, and Rafferty)

SESSION 2: JPML process; scheduling JPML hearing and lawyer presentations; how Panel chooses transferee judge; trends in Panel centralizing certain types of cases; role of Rules of Procedure of the United States Judicial Panel on Multidistrict Litigation (Dodge – Rodgers, Cabraser, and Rice)

SESSION 3: First six months of MDL: court organization and responsibilities of court officers, e.g., magistrate judge, clerk of court, and court-appointed special masters on discovery or settlement; lawyers should attend scheduled court meetings, network, and market skills and experience (McGovern-Childs, Seegerand Geller)

SESSION 4: Role of court in organizing attorneys: appointment of lead counsel, PSC, and other executive committees; managing MDL, including court order governing ongoing timekeeping and limits on expenses; learn transferee judge’s background and experience; judicial trends in appointing specific types of lawyers to leadership positions (Walker–Fallon, Cabraser, Rafferty, and Gotz)

SESSION 5: How much money is needed to fund the litigation and how to finance obligations, financed directly or by arrangement with third party; what is level of risk tolerance; how common benefit fund is created and administered (Dodge–Fallon, Seeger, and Rice)

SESSION 6: Role of lawyers in managing MDL and conferring with individual plaintiffs: appointment of PSC and executive committees, and organization of subcommittees; who assigns lawyers to individual subcommittees, e.g., judge, lead counsel, executive committee; conferring with individual clients and communicating with all plaintiffs when appointed to a leadership position, e.g., disclosure of superior duty to the court and confidentiality limitations (McGovern – Childs, Rice, Seeger,and Geller)

DAY 2 – Committee Tasks

SESSION 7: Initial Pretrial Case-Management Order: scope of order and detailed procedural roadmap; Master Pleadings (Walker–Fallon, Cabraser, Dearman, and Anapol)

SESSION 8: Document review management, e.g., project management: institute and monitor litigation hold; select and review vendor; negotiate ESI protocol; select custodian list; negotiate scope of discovery; review produced documents; create log of all discovery work; respond to document, interrogatories, and admissions requests of plaintiffs (Dodge – Rodgers, Buchanan, Rafferty, and Dearman)

SESSION 9: Privilege Logs, project management: review defendant logs; identify deficiencies (McGovern – Childs, Rafferty, Robertson, and Anapol)

SESSION 10: Facts Discovery, e.g., project management: identify defense witnesses to depose, prepare outlines for depositions, and depose witnesses (Walker – Rodgers, Seeger, Ann Rice, and Robertson)

SESSION 11: Experts Discovery, e.g., project management: research and retain experts; oversee preparation of expert disclosures; depositions (Dodge – Kennelly, Rice, Buchanan, and Barnes)

SESSION 12: Settlement: timing: role of judge; use of mediators; project management – negotiations, principal players remand (Dodge – Fallon, Seeger, Martin, and Gilbert)

DAY 3 – Disposition of MDL

SESSION 13: Trial preparation: project management, bellwether – consult with experts to identify strongest liability cases; review trial candidates recommended by law firms (Walker – Kennelly, Rafferty, Scott, and Barnes)

SESSION 14: Law and Substantive issues preparation and briefing: project management — coordinate research and drafting of all pleadings and motions, e.g., plaintiff and defendant fact sheets, motions in limine, evidentiary motions, and assisting in oral arguments preparation; appellate briefing (McGovern – Kennelly, Geller, Jensen, and Bilsborrow)

SESSION 15: Attorney fees: common benefit fund; class-action settlement funds; and individual client payments (Walker – Herndon, Geller, Moskowitz, and Martin)

SESSION 16: Distribution process: use of claims administrators and other experts; criteria for disbursements; continuing responsibilities, lien reconciliation (McGovern – Kennelly, CabraserBilsborrowand Gilbert)

SESSION 17: Unique Aspects of MDLs, e.g., Lexicon issues, tag-alongs, class actions, pro se actions, parallel state court litigation (Dodge – Herndon, Cabraser, Moskowitz, and Gotz)