A mass tort occurs when multiple people are harmed by the same event, defective product, or misconduct of one or more defendants. The cases generally involve similar questions of fact but are kept individualized for purposes of compensation. Courts treat mass torts as complex litigation, and they often involve extraordinary amounts of evidence. The discovery process in mass tort cases allows parties to request and review information that may be relevant to the case. Discovery often plays a crucial role in determining the success or failure of the litigation and whether a plaintiff receives full and fair compensation.
What Is Discovery in a Mass Tort Case?
The discovery process in a lawsuit allows each party to request and review information and documents about the case. The discovery phase is often the longest part of litigation and may involve depositions, in which a witness or expert answers questions under oath, interrogatories (written questions), and documents such as internal corporate communications.
Discovery in a mass tort case differs from a single-plaintiff case due to its scope, coordination, and the number of parties involved. Mass tort litigation may involve complex issues such as allegations of corporate misconduct involving defective medical devices, dangerous drugs with serious side effects, a cancer-causing chemical being marketed as safe, or a plane crash caused by safety shortcuts. The volume of plaintiffs alone can present challenges to receiving information that may be critical to the case, making the discovery phase one of the most essential parts of the litigation process.
Key Components of the Discovery Process
The discovery process in mass tort cases can be extensive. Due to the comprehensive information that may be available in these cases, discovery efforts are frequently coordinated to save time and money and avoid duplicative requests.
The Federal Rules of Civil Procedure govern how discovery is conducted in federal court, including mass tort litigation. Individual states have different rules governing how discovery is conducted in state court litigation.
Discovery in a lawsuit may include:
- Document request and exchange: One of the first steps in discovery is submitting a document request. This may be done through informal communication with the other party, generally through each side's attorneys. If the other party does not respond or fully cooperate with an informal document request, a formal request for production of documents may be issued, or a subpoena may be used to obtain records from third parties.
- Depositions: A deposition is a formal, out-of-court oral testimony provided under oath. Each party may request depositions from both witnesses and experts who may have information or give testimony in a case.
- Expert witness discovery: Mass tort cases often require testimony from expert witnesses. During the discovery process, each party may depose or request information from any expert witnesses who may provide their opinion during the case.
- Interrogatories: Interrogatories are written questions that either party can submit to the other party. They require a written response and may be used to obtain or clarify information that may be pertinent to the case.
- Plaintiff Fact Sheets: Many times, in mass tort litigation, some forms of discovery directed at individual plaintiffs are replaced by court ordered plaintiff fact sheets. These forms and records authorizations, filled out and signed under penalty of perjury by each individual plaintiff, become the basis for the factual information used to evaluate individual cases and may be used by the lawyers for both sides and the court to help pick cases for initial bellwether trials and to aid in settlement discussions.
Unique Challenges and Disputes in Mass Tort Discovery
The size and complexity of a mass tort case can make the discovery process not only long but also challenging. This phase is often the most resource-intensive, requiring significant cost, coordination, and a detailed knowledge of procedural law. The discovery stage in a mass tort case can be contentious as parties juggle scope, confidentiality, and privilege, while also dealing with time constraints.
Challenges and disputes that may arise in the process of discovery:
- Volume and complexity: Discovery in major mass tort cases can involve millions of documents. The sheer scale of the litigation, which may involve thousands of plaintiffs, can make even basic information exchanges logistically complex. Coordination between parties can be complicated as each tries to avoid duplicative requests and ensure efficiency. Mismanaged discovery requests can lead to delays in proceedings and the risk of spoliation.
- Scope: Defendants in mass tort cases frequently argue that discovery requests are “overly broad” or “unduly burdensome.” To ensure requests are answered, they must be relevant and fall within the scope of the matter.
- Privilege and confidentiality: Defendants in mass tort cases, which are often corporations or companies, may withhold information claiming attorney-client privilege or IP protection. They may also seek protective orders in an effort to keep damaging information from public view. Working with a mass tort attorney who knows the law and can fight against privilege claims is critical to ensure discovery requests are answered.
- Cost: The discovery phase is frequently one of the most costly in complex litigation. Attorneys for the defense may bring proportionality arguments claiming that the discovery costs outweigh the case’s value. If granted, some discovery requests may remain unanswered.
- Time: The discovery phase in a mass tort lawsuit often takes 24 to 48 months, depending on the circumstances of the case. In more complex cases, the process may extend even longer. Understanding realistic timelines helps set proper expectations at each step of litigation.
Examples of Discovery Turning Points in Major Mass Torts
Information uncovered during discovery can be a turning point in a major mass tort lawsuit, as was evidenced by the Monsanto Papers in the Roundup litigation. The Monsanto Papers refer to millions of internal documents obtained by attorneys with Wisner Baum through the discovery process. The documents revealed a systemic campaign of corruption. They detailed manipulation of scientific research, purposeful concealment of safety information, and a coordinated effort to undermine the processes designed to keep consumers safe from dangerous products.
The papers were declassified and made available to the public through the determined efforts of Wisner Baum. They helped impact the outcome in many Roundup lawsuits, including nearly $11 billion in negotiated settlements and multi-billion-dollar jury verdicts.
How Discovery Impacts Settlements and Verdicts
Information obtained during the discovery process can uncover strengths or weaknesses in a particular case. Ultimately, the discovery phase can shape negotiations, influence settlement values, and impact trial outcomes.
One of the most significant examples of how discovery can influence the direction of a mass tort are the Roundup related documents discussed above. The information contained in those documents directly led to the large jury verdicts at trials and the eventual settlement of thousands of cases.
Contact Our Mass Tort Attorneys
Individuals harmed by a defective product or wrongful corporate conduct are encouraged to contact Wisner Baum to schedule a free, no-obligation consultation. Wisner Baum is a proven leader in mass tort litigation, having served on leadership committees for some of the largest MDLs in the nation.
Attorneys with the firm were instrumental in getting the Monsanto Papers released through the discovery process in the Roundup litigation and continue to work tirelessly to hold companies accountable when their products or conduct causes harm to consumers. Contact Wisner Baum today to schedule your confidential case evaluation.
