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. |
| In the interest of organizing the MDL litigation, and in coordinating state/federal litigation, Judge Bechtle responded positively to the request by a lawyer for several physicians' insurance carriers that a defense liaison counsel for these carriers be appointed. The PMC co-chairs also reported progress in discussions with key state court plaintiffs' counsel, and will be submitting a proposed state liaison committee for Judge Bechtle's consideration by month's end. Judge Bechtle stressed the need for federal/ state court coordination in matters of discovery, access to the document depository and communications among the courts. Judge Bechtle also urged the defendants not to file duplicative "pro forma" motions, but to consolidate their pleadings and motions to avoid a deluge of repetitive paper on the court. Counsel for both sides suggested adopting a master complaint and answer; the court encouraged the parties' efforts to develop these forms for court consideration. |
| Meanwhile, actions will be commenced by filing conventional complaints, and federal cases will become part of the MDL No. 1203 proceedings through the judicial panel's "tag-along" procedures under 28 U.S.C. Sec. 1407 and the Panel Rules. To date, more than 300 actions have completed the transfer process and have been given MDL No. 1203 case numbers. About 500 cases are somewhere in the MDL process. |
| The defendants requested, and received, one 30-day extension in which to answer MDL No. 1203 plaintiffs' complaints. Answers to complaints that have been served upon defendants will be due on or about April 16. At the PMC's request, further action on class certification has been stayed for now. The PMC will prioritize its efforts on the organization of the litigation, designation of tasks and conduct and completion of document and deposition discovery. The plaintiffs aim to complete the MDL phase and ready individual cases for remand to their transferor districts for trials within one year. |
| Judge Bechtle has scheduled the next status conference for April 8, 1998. |
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| *Elizabeth J. Cabraser is a partner with Lieff Cabraser Heimann & Bernstein, LLP, in San Francisco. Telephone: (415) 956-1000. The firm represents fen-phen plaintiffs in the state and federal courts. Ms. Cabraser has been appointed by Judge Bechtle to serve on the MDL No. 1203 Plaintiffs' Management Committee. |