An Insider's Perspective: Diet Drug Litigation Update

AN INSIDER'S PERSPECTIVE:
DIET DRUG LITIGATION UPDATE

Product Liability Law and Strategy March 1998

On March 4, Judge Lewis C. Bechtle of the Eastern District of Pennsylvania convened the second status conference in the In re Diet Drugs [Fenfluramine / Dexfenfluramine / Phentermine] Litigation, MDL No. 1203, proceedings. The conference addressed issues of pleading, service, confidentiality, document preservation, case management, a document depository, the coordination of federal and state litigation and suggestions for the use of a master complaint.

The Plaintiffs' Management Committee (PMC) had developed, at the court's request, a comprehensive plaintiffs' questionnaire/fact summary, consisting of a series of objective questions and information requests that will serve in lieu of formal interrogatories for the named plaintiffs in the MDL No. 1203 proceedings. This document will facilitate the flow of essential information and will avoid burdening the court with discovery disputes. The contents of the questionnaire were addressed in pre-conference meetings with defense counsel. As of the status conference, several items in the questionnaire remained in dispute and were submitted to the court for determination. The final, court-approved version of the questionnaire is expected shortly. Judge Bechtle requested, and received from the parties, a set of deposition guidelines, derived largely from the "Manual for Complex Litigation" (3d ed., Federal Judicial Center 1995). A similar deposition protocol was used in In re Orthopedic "Bone Screw" Product Liability Litigation, MDL No. 1014, known as the "pedicle screws" litigation. The court did not set absolute time limits on depositions, but intends to establish a good-faith guide regarding the observation of reasonable time limits for depositions, including provisions for the furnishing of documents to deponent's counsel or witnesses in advance of depositions.

Provisions were also made to expedite and organize service of process. The defendants will provide a list of designated persons to accept service of complaints by certified mail. Service on designees will constitute good service of MDL No. 1203 pleadings. The PMC will develop a comprehensive service list for distribution of orders and other documents. The parties also submitted an agreed-upon confidentiality order, which the court has taken under advisement, to review for conformance to Third Circuit law, and presented an agreed-upon form of document preservation order, similarly derived from the "Manual for Complex Litigation" and the preservation order entered in the Orthopedic "Bone Screw" Litigation.

Judge Bechtle urged the defendants to commence the production of documents without delay, observing that they had been aware of the basic issues in the case since last fall, and should have been in the process of collecting, analyzing and preparing to produce their documents. Plaintiffs proposed that discovery be conducted in two "waves." The court advised that it will order the initial wave to commence shortly. Plaintiffs plan to serve their master sets of requests for production of documents and interrogatories immediately.

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