Policy Lab and the RAND Institute for Civil Justice are Estimating the Impact of Case Management in MDLs through analyzing “Lone Pine Orders” and “Bellwether Trials”

RESEARCH QUESTION

The RAND Institute for Civil Justice and the Policy Lab are working on a yearlong analysis of two controversial case management devices used in aggregate litigation.

BACKGROUND

 

Despite the prominent place of trials and judicial rulings in the public consciousness about the law, case management by judges has become ever more critical in determining the outcome of litigation. This importance is especially true of cases involved in multidistrict litigation (MDL) process.  The MDL procedure is a special procedure in federal and some state courts to expedite the process of adjudicating complex cases such as air disasters or pharmaceutical cases.  As MDLs have grown to encompass almost 40% of the federal courts’ civil docket, policymakers have expressed concerns that the MDL process puts pressure on defendants to settle regardless of the merits and provides too little information on the value of cases given the consolidation of the discovery process.

Two management orders have been proposed as solutions to these putative problems. The first is Lone Pine orders, first used in a 1986 case by the same name. A Lone Pine order requires plaintiffs in an MDL to produce evidence of injury and causation. The court then dismisses claims that fail to comply with the order. Plaintiffs’ attorneys criticize such orders for imposing costs on plaintiff’s attorneys before discovery has indicated whether the case is valuable enough to pursue and more generally for making it more difficult for plaintiffs to file a claim.  The second case management technique examined is the use of Bellwether trials. In a Bellwether trial process, the MDL judge selects certain cases for litigation to provide information on the value of litigation to the litigants and encourage settlement. Critics argue that the process does not provide enough information to justify its costs as both parties can systematically settle or drop cases that might give unfavorable information from their perspective.

The study examines the impact of Lone Pine orders and Bellwether trial processes.  Using data on MDLs from 1992-2017 preliminary finds suggest that Lone Pine orders are associated with an increase in the number of cases resolved without trials by the courts. We find little evidence that Bellwether trial processes impact resolutions.

Project Partner: The RAND Institute for Civil Justice

Faculty: Eric Helland, Co-Director

Research Assistants: Policy Lab class, Fall 2017; Vin Srikanth, Melanie Wolfe, Tobin Hansen, Mia Prine, David Yang, Hallie Spear, and Scott Mowat; Gullermo Santos and Raj Bhutoria (funded by CMC’s Financial Economics Institute).

Multidistrict Litigation