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Defense lawyers, drugmakers urge U.S. judiciary to toughen mass tort rule

On Monday, defence attorneys and prominent corporations urged a U.S. judicial panel to enhance a proposed rule to govern federal mass tort cases, emphasizing that it falls short of eliminating frivolous lawsuits. After extensive deliberation, the U.S. Judiciary Conference's Advisory Committee on Civil Rules published the proposed rule for public comment in March. It would apply to federal multidistrict litigations nationwide, impacting numerous consolidated lawsuits against small and large corporations.

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Oct 19 (The Justice Now)Advocates of the proposed rule contend that it offers essential direction to judges overseeing multidistrict litigations (MDLs), which had expanded to encompass almost 73% of the federal civil caseload in 2022, as reported by Lawyers for Civil Justice, a defence bar group.

The proposed rule stipulates that judges should arrange preliminary hearings to establish case management plans upon receiving cases from the Judicial Panel on Multidistrict Litigation and recommends the appointment of plaintiffs’ leadership counsel.
Furthermore, it promotes exchanging factual information about claims and defences early in the litigation process. However, during a hearing held on Monday in Washington, D.C., which marked the first of three hearings organized by the committee to gather public input on the proposal, defence attorneys and two prominent pharmaceutical companies, Bayer and Johnson & Johnson, who often find themselves embroiled in lawsuits regarding alleged product-related injuries, expressed their dissatisfaction with the proposed measure, deeming it ineffective.
According to James Shepherd, a lawyer at Shook Hardy & Bacon, the proposed rule lacks substance and fails to address the main concern of preventing unsupported claims from being filed in MDLs. He describes it as more of a suggestion than a rule, suggesting that its lack of requirements promotes the lack of structure in MDLs.

Defence lawyers argue that in many pharmaceutical cases, many plaintiffs ultimately lack factual support for their claims, causing the mass torts to expand unnecessarily. They believe the rule should establish a process to ensure that each plaintiff provides early evidence of factual support for the basic elements of their claims. This proactive approach would prevent filing unsupported cases, simplifying the MDL process.

Christopher Guth, a senior assistant general counsel at Bayer, supports this view, stating that implementing such a rule would be preventative and eliminate the need for these cases. He believes that it would greatly streamline the MDL process.

However, U.S. District Judge R. David Proctor, who chaired the subcommittee responsible for drafting the proposed rule, disagrees. He argues that not all MDLs require this step and that assessing each case individually for factual support would be unnecessary if the defence files a motion to dismiss all points simultaneously. He emphasizes that the focus of the transferee judge in centralized proceedings is to keep the overall process moving forward rather than being concerned with a small percentage of unsupported cases.

In summary, there is a difference of opinion regarding the proposed rule. While some believe it should establish a process to ensure factual support for claims, others argue that it is unnecessary in certain MDLs and that the focus should be on the overall progress of the cases.

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