Anatomy of Mass Tort Litigation
From science to trial
Since its inception in the 1970s, organized mass tort litigation has continually threatened the products and profits of manufacturers. Since then, Faegre Drinker has vigorously defended clients during mass tort and multidistrict litigation (MDL), often using the innovative virtual law team model. In this system, we organize counsel into litigation teams based on anticipated litigation activities — which serves the client’s strategic and financial interests. Litigation roles may include counsel for national coordination, discovery, science and experts, company case, law, settlement and trial. The virtual team expands or collapses as needed.
Faegre Drinker has both the depth to play every role involved in mass tort litigation and the collaborative skills to work in concert with other firms when litigation calls for multi-firm collaboration. We offer the technology and logistical resources to coordinate with clients and other attorneys around the world. Faegre Drinker’s lawyers are pioneers, having defended some of the earliest mass torts. We are innovators, developing a defense model that is flexible, encourages collaboration, and provides more efficient and effective representation to clients across industries and legal specialties.
National Coordinating Counsel Team
Faegre Drinker’s national coordinating counsel team creates a robust, thorough and consistent overall defense for clients facing national or international mass tort or multidistrict litigation (MDL). We drive the primary legal strategy and manage all lawsuits and claims filed related to a common product or set of facts to ensure the best possible defense is executed consistently and efficiently across all cases. We identify the ideal team from our coast-to-coast offices and national network of trusted local counsel and qualified experts to defend your specific mass tort or MDL. Then we coordinate local counsel across jurisdictions, managing communication and resource allocation. As a single point of contact, we ease the litigation burden on the client to keep you informed. We ensure constancy and conformity in all aspects of the defense.
As subject matter specialists, our national coordinating counsel team also develops a deep understanding of the client’s overall business and the litigation goals — aligning strategy to the client’s priorities. A national coordinating counsel approach reduces client costs by providing economies of scale in defense execution and saving on factual investigation, discovery and document production.
Faegre Drinker’s discovery team leverages the best practices of discovery, from preservation to protocols to production, to identifying evidence that supports the client’s defense. We take an offensive discovery approach, developing strong evidence that is favorable in challenging the plaintiffs’ claims. The discovery team follows processes that minimize the cost of discovery (often the most costly stage of litigation), including working closely with Faegre Drinker’s in-house client technology solutions (CTS) group, which provides best-in-class e-discovery services and in-house processing and hosting. Our CTS team collaborates with our attorneys every day, and we leverage the same discovery resources across a client’s projects for efficiency and familiarity. Our legal teams and CTS professionals work to minimize eyes-on review, quickly identify the most relevant documents and complete a defensible search for relevant materials.
For defensive discovery, this team ensures consistent and high-quality responses to written discovery across multiple cases and creates repeatable and defensible collection and review processes to meet discovery obligations while not making them the focus of the litigation or motion practice. Discovery lawyers work with in-house counsel to minimize the business interruption of responding to requests from plaintiffs’ lawyers.
Kip S.M. McDonald
Science & Experts Team
Mass tort trial defense relies heavily on sound science – including medicine, engineering, epidemiology and beyond. Our team studies, investigates and understands the science and scientific literature behind your product and uses that knowledge to challenge plaintiffs’ causation claims and explore alternative causation themes. We work with internal company experts to build a strong understanding of the products at stake and also engage with third-party experts and thought leaders to evaluate each case’s strengths and weaknesses. We study the scientific trends in your industry. Armed with product, scientific and regulatory knowledge, our specialized attorneys and paralegals develop defensive expert themes to attack plaintiffs’ scientific theories and expert opinions. Then we prepare our client’s expert witnesses and evidence for cross-examinations and trial.
Company Case Team
When your company is defending a mass tort, our company case team is your strategic partner. We learn your business, your documents and your employees to develop defensive themes common to multiple cases and to establish the company’s story. Our company case lawyers become familiar with client documents and witnesses key to multiple cases, and facilitate each trial team’s access to and knowledge of the evidence. We respond to document and court requests consistently on the client’s behalf to minimize business interruption. For company employees called to testify, we prepare these company witnesses for deposition so they can take the stand confidently and support the company’s story.
In large, sophisticated mass torts, our law team provides integrated legal work before, during and after trial, freeing trial counsel to focus on the demands of the trial. Our law team anticipates and manages complex legal issues, using pleadings, dispositive motions, challenges to evidence and experts, removals to federal court, bench briefs, post-trial motions and a host of other tools to protect the client’s interests. The team advises other litigation team members on short- and long-term legal issues raised in discovery requests and responses, depositions, expert witnesses and trial preparation, and immediately addresses new legal issues as they arise during trial. The law team’s extensive experience with tort law evidence and procedure and keen eye for detail and strategy help us identify key issues and properly prioritize our efforts at every stage of the litigation.
The law team also positions every case for a possible appeal, building a solid appellate strategy into the case from the outset and preserving appellate issues along the way. In the event of an appeal, the law team uses its in-depth knowledge of the case to craft the appellate briefs and argue the case.
Our settlement team is critical to mass tort coordination and helps develop the long-term litigation strategy, understanding that settlement ultimately may best align with a client’s goals. Faegre Drinker has a national reputation as mass tort settlement counsel, with experience managing settlement of major product MDLs. Our team helps clients consider settlement strategy, such as whether to prioritize settlement, which cases or clusters to settle, and which cases not to settle. Should a client decide to settle, the team structures and administers individual and global settlements.
In mass tort litigation or MDLs, settlements are complex, requiring creative solutions and proper processes to administer hundreds or even thousands of settlements. We handle these at every level, from negotiating with unrepresented claimants to mediating single-plaintiff cases to negotiating mass settlements.
James Stephen Bennett
When a mass tort goes to trial, defendants need experienced courtroom trial lawyers on their side. Faegre Drinker’s trial lawyers have tried everything from single-plaintiff cases to multiplaintiff mass torts in both federal and state jurisdictions. These skilled product liability trial lawyers understand the jurisdictions, science, medicine and company case at play and have experience coordinating these issues in a mass tort or MDL context. Whatever the product at stake, our mass tort trial lawyers help clients navigate discovery, build themes, develop strategy and run trials.
Our trial team oversees the trial strategy for cases across the country. Our mass tort lawyers and MDL lawyers also act as local counsel, arguing in court on behalf of drug and medical device, agricultural and product manufacturing clients.
Andrea Roberts Pierson