Nudges and Norms in Multidistrict Litigation: From Fact Sheets to Lone Pine Orders
22 Pages Posted: 25 Jul 2019 Last revised: 25 Sep 2019
Date Written: July 23, 2019
On paper, the Federal Rules of Civil Procedure apply equally to billion-dollar opioid allegations and small-stakes claims for $75,000.01. In practice, however, judges and attorneys in high-stakes multidistrict proceedings like those over opioids have invented a smattering of procedures that you’ll never find indexed in the Federal Rules: plaintiff fact sheets, short form complaints, science days, bellwether trials, census orders, inactive dockets, and Lone Pine orders to name but a few. In a world where settlement is the prevailing currency, norms take root. But as norms blossom, the stabilizing features of the federal rules—balance, predictability, and structural protections—can wither. As safeguards atrophy and transferee judges actively nudge the parties to settle, the deals that emerge may reflect the scars of creative pruning, not the suit’s merits.
This Essay responds to Nora Engstrom by introducing empirical data on her target (Lone Pine orders) and her remedy (plaintiff fact sheets). Examining these innovations in the lifecycle of products-liability multidistrict litigation illustrates that norms can undermine a key aim of the federal rules: achieving procedural parity, where discovery burdens and the risks of erroneous decisions fall equally on both parties. Although design choices should respond to case management demands, both short cuts can impact plaintiffs more harshly, upending protections for those who need them most.
Keywords: MDL, multidistrict litigation, torts, products liability, fact sheets, Lone Pine orders, mass torts
JEL Classification: K13, K41
Suggested Citation: Suggested Citation