Federal and state judges told a group of lawyers representing drugmakers and medical device firms about their biggest pet peeves in personal injury litigation. These judges, speaking at a conference attended by lawyers and judges, said that too many motions related to discovery and expert testimony were being filed that were “wastes of time.” During their discussion, the judges outlined their concept of the ideal way to select bellwether suits. The insights were delivered by a half-dozen judges from around the country at the 18th Annual Drug and Medical Device Litigation Conference, an event held in New York by the American Conference Institute. The conference was attended by hundreds of lawyers. The following are five takeaways from the panel of judges for lawyers to keep in mind when handling personal injury claims:
Avoid Pointless Bellwethers. Judge Richard Kramer of San Francisco Superior Court explained the proper methods for selecting Bellwether trials, which are used to resolve key issues in multidistrict litigation. A singe case can guide the resolution of many suits. Judge Kramer said:
You need a case that’s not sexy. You need a case that’s got nothing special about it, even though the rest of the cases don’t know that. You need a case that other people, as much as possible, are going to follow.
That’s because a case that is distinctive will frequently do little to steer other matters toward settlement, as attorneys on both sides will be able to point out anomalies if things don’t go their way. Judge Kramer added:
I look for cases that aren’t particularly sexy [and] don’t have anything that’s going to get one or more of the sheep into a frenzy about something.
That point was echoed by U.S. District Judge David Herndon of the Southern District of Illinois, who said attorneys often choose outlier bellwethers that do little more than drag out litigation. “Lawyers have a tendency, despite all of the judge’s urgings, not to select representative cases,” Judge Herndon said. He pointed out that while a judge gets to select bellwethers from cases nominated by legal counsel, that matters little if the suits put forward are all skewed toward one side or the other. Judge Herndon had this to say:
If the trial itself is going to be counterproductive because it allows plaintiffs to say the result of the trials is an aberration, or defendants to say the results are an aberration … you could really set back the resolution of the cases in general.
Watch Out for Daubert Hair Trigger. Several comments from the judges underscored a growing sense that lawyers are shooting themselves in the foot by being too trigger-happy with Daubert motions, which are filed to exclude expert testimony. U.S. District Judge Cynthia M. Rufe of the Eastern District of Pennsylvania, for one, said that “Daubert is overused as a defense motion” and that the majority of experts are qualified. Judge Herndon echoed that point, chastising lawyers for calling into question the talents of almost every expert. Judge Herndon said on this matter:
Be selective about your Daubert motions, because surely in the world in which we live, some experts are in fact doing good science, or depending upon good science, when they give opinions.
Going further, Judge Herndon mentioned judicial frustration with the time-consuming motions and suggested that judges start to tune out lawyers who cry wolf too often. He made this point, saying:
When, as a judge, you have to look at 15, 20, 30 Daubert motions, it is more than daunting. It’s very, very difficult. We’re human beings, and I’m not saying you take shortcuts, but when you have to look at that many Daubert motions, it makes our job [hard].
In Discovery Disputes, Give Peace a Chance. On another procedural topic, U.S. District Judge William S. Duffey, Jr., of the Northern District of Georgia, described being driven to the point of queasiness by motions to compel discovery, specifically mentioning unnecessary recitations of Rule 26 of the Federal Rules of Civil Procedure, which governs disclosures and depositions. Most discovery disputes boil down to a request being overly broad or too expensive to fulfill, according to the judge. Instead of filing a motion that can add months to a case, it’s often possible to sort things out in a brief conversation, with a judge calling the balls and strikes in a less formal setting, Judge Duffey said. “Generally, they just need a neutral arbiter,” he added.
Judges Can’t Force Settlements. A good amount of discussion centered on the extent to which judges should push the parties to settle a case, with the jurists generally agreeing that they have a role to play, but a limited one.
With Parallel Cases, Cooperation Is Key. Another topic in the spotlight concerned related mass torts that are proceeding on a parallel basis in state and federal courts, and the question of whether and how the matters should be coordinated. Judge Rufe encouraged her federal peers to “reach out in a very respectful way” to their state-level counterparts in hopes of conserving resources and preventing bellwether trials from being staged at the same time. A key difficulty is that cooperation is being done on an ad hoc basis. That’s because there is no overarching legal framework guiding such activities. Judge Kramer said that “the problem the lawyers have, and the problem that some judges have, is there are no formal rules [covering] this.”
Communication Should Be Better. Nonetheless, lawyers on all sides have an incentive to communicate better, as overlapping efforts result in needless costs, according to U.S. Magistrate Judge Kaymani D. West of the District of South Carolina. She said: “I do have to say that coordination … is paramount, simply because you want to avoid any kind of duplication of effort, and you want to manage the costs of litigation.”
Hopefully, the message sent to the lawyers was well received. If so, and if the message carries over into actual practice, it will make complex litigation much less complex, will save lots of money and will make our judicial system much more efficient.
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