40.52 Mass Tort Case-Management Order

[caption]

Order No. 				
(Standard Procedures)1

	It appearing that [the above-styled cases] [cases listed in Attachment           ] involve claims of death, personal injury, economic damages, punitive damages, and other claims of damage arising as a result of [exposure to] [use of] [         products] [the incident occurring at 	             on      [date]     ] and that other similar actions may be ﬁled in or transferred to this court in the future, the court ORDERS:

1.	Filing of Order. A copy of this order shall be ﬁled in each such case. In cases subsequently ﬁled, a copy will be provided by the clerk to each plaintiff at the time of the ﬁling of the complaint and will be served with the complaint on any defendant not previously a party in these cases. [In cases subsequently removed or transferred to this court, a copy will be provided by the clerk to each new party upon removal or transfer.]
2.	Pretrial Consolidation. All cases in this litigation are consolidated for pretrial purposes. This is not a determination that any of these actions should be consolidated for trial. 
3.	Types of Cases. By order of the Judicial Panel on Multidistrict Litigation (MDL Panel), numerous proposed class actions to remedy economic injuries alleged to have been caused by    [insert product name]   have been transferred to this court for coordinated pretrial proceedings. These cases and any proposed class actions that are subsequently filed or transferred to or filed in this proceeding are referenced as Class Action Cases. 
		Numerous individual personal injury and wrongful death cases have also been transferred to this court for coordinated pretrial proceedings. These cases and any additional personal injury/wrongful death cases, brought on behalf of individual claimants, filed in or transferred to this court are referenced as “Personal Injury Cases.” [Insert and define any additional types of cases that are distinct and may call for separate management.]
4.	Presentation of Test Case Remand Motions. Plaintiffs’ liaison counsel  in personal injury cases shall consult with plaintiffs' counsel and identify for the court no more than           [e.g., five] cases in which motions for remand to state court based on an arguable absence of federal subject-matter jurisdiction have been filed or are expected to be filed. These remand motions should, as nearly as possible, be representative of the various remand issues raised in the personal injury cases in this MDL litigation. In addition, plaintiffs’ counsel may identify one case in which a motion to remand the case to the transferor court for trial has been made. Plaintiffs’ Liaison Counsel shall submit to the court by 
        [date]        the names and individual case docket numbers of the cases identified as representative of the remand issues in this MDL proceeding. The court will set a schedule for briefing or supplemental briefing of the remand motions in those cases and place these motions on an expedited schedule for decision.
5.	Filing Papers with the Court. The purpose of the following instructions is to reduce the time and expense of duplicate ﬁlings of documents through use of a master case ﬁle, while at the same time not congesting the master case with miscellaneous pleadings and orders that are of interest only to the parties directly affected by them. It is not intended that a party lose any rights based on a failure to follow these instructions.
(a)	Master Docket and File. The clerk will maintain a master docket and case ﬁle under the style “In re 			 Product Liability Litigation (MDL-XXXX)” as master ﬁle number [CV NN-1000-X]. Orders, pleadings, motions, and other documents bearing a caption similar to that of this order will, when docketed and ﬁled in the master case, be deemed to have been docketed and ﬁled in each individual case to the extent applicable and will not ordinarily be separately docketed or physically ﬁled in such individual cases. However, the caption may also contain a notation indicating whether the document relates to all cases or only to specified cases.
(b)	Separate Filing. A document that relates only to a specific case and would not be of interest except to the parties directly affected by it—such as an amended complaint adding a party or a motion to dismiss a party—should bear the caption and case number of that case rather than of the master case ﬁle. Such a document will be docketed and ﬁled in that case and not in the master case ﬁle. Please note that cases removed or transferred to this court are assigned a new case number in this court.
(c)	Leave to Add Parties. Until otherwise directed, plaintiffs are granted leave, without need for any special motion or order, to add other plaintiffs to any pending (or subsequently ﬁled, removed, or transferred) case if all plaintiffs in the case (1) will be represented by the same counsel (or if counsel for existing plaintiffs consent to the intervention), (2) are suing the same defendants, and (3) [were exposed to defendants’ products] in the same state. The purpose of this authorization is to avoid unnecessary ﬁling fees and the delays inherent in 28 U.S.C. § 1407 transfers. The joinder of such parties will not be viewed as affecting subsequent motions by either plaintiffs or defendants for separate trials under Federal Rule of Civil Procedure 42(b). 
6.	Master Pleadings, Motions, and Orders
(a)	Master/Sample Complaints. Plaintiffs’ steering committee has ﬁled in this district [CV NN-10000-X]: 
(1)	a master complaint containing allegations that would be suitable for adoption by reference in individual cases,
(2)	a sample complaint illustrating how allegations from the master complaint can be incorporated into an individual case, and
(3)	a master class action complaint containing allegations that encompass the entire range of allegations and types of proposed class actions contained in individual cases filed in this court or transferred to this court by the MDL panel.
		The allegations of the master complaint and the master class action complaint are not deemed automatically included in any particular case. However, in order to avoid possible problems with statutes of limitations or doctrines of repose, it shall be deemed (except to the extent a plaintiff thereafter ﬁles an amended complaint disavowing such claims and theories or limits its claims and theories to those contained in an amended complaint) that, as of this date, for cases now pending in this court (or as of the date other cases are ﬁled in, removed to, or transferred to this court) a motion is ﬁled in each such case to amend the complaint to add any potentially applicable claims and theories from the master complaint not contained in the complaint actually ﬁled in that case.
(b)	Master Answers. By 			, each entity listed below will ﬁle in [CV NN-1000-X] a master answer that incorporates its defenses in law or fact to claims made against it in the various actions that are presently pending in this litigation, including any cross-claims it makes against other defendants. The answer will not attempt to provide a cross-reference to particular paragraphs or counts of the various complaints. The answer will, however, in a “generic” manner admit or deny (including denials based on lack of information and belief) the allegations typically included in claims or cross-claims made against it as well as make such additional allegations as are appropriate to its defenses or cross-claims. This may be done through allegations such as “It alleges that it is incorporated in State A; that it has its principal place of business in State B; that during the period from (date) to (date) it manufactured, sold, and distributed products intended to be used in 		         ; that these products were intended to be used only by trained, knowledgeable 	                        and were accompanied by warnings and instructions that adequately explained such risks as were inherent and unavoidable in the products; that these products were not unreasonably dangerous, were suitable for the purposes for which they were intended, and were distributed with adequate and sufficient warnings; that it is without knowledge or information at this time sufficient to form a belief as to any averment that one of its products was used in the procedure on which the plaintiff’s complaint is based; that to the extent the plaintiff makes a claim for X (or under statute Y) it is not liable because 	                   ; etc.”
(1)	When so ﬁled in [CV NN-1000-X], these answers constitute an answer in each constituent case now pending or when hereafter ﬁled in, removed to, or transferred to this court except to the extent the defendant later ﬁles a separate answer in an individual case.
(2)	A defendant not listed below may also ﬁle a master answer in [CV NN-1000-X] by   [date]   , or within 45 days after the ﬁrst case in which it is named as a defendant is ﬁled in, removed to, or transferred to this court.
(c)	Refinement of Pleadings. It is anticipated that an amended, more specific complaint and answer may be required before a case is scheduled for trial or remanded to a transferor court, but amendments of pleadings prior to that time should generally be avoided.
(d)	Motions; Orders. A motion, brief, or response that has a potential effect on multiple parties (e.g., documents submitted in connection with a motion for partial summary judgment asserting that punitive damages are not recoverable with respect to [the product’s use] in State A) will be deemed made in all similar cases on behalf of, and against, all parties similarly situated except to the extent such other parties timely disavow such a position. Additional motions, briefs, or responses addressed to such issues should not be ﬁled or submitted by other parties except to the extent needed because of inadequacy of the original papers, to present unique facts, or because of a difference in positions. Orders resolving such motions will likewise be deemed as made with respect to all parties similarly situated unless the order indicates otherwise.
7.	Service of Original Complaints; Amendments Adding Parties
(a)	Acceptable Service. Exhibit            is a list of the “National Defendants”—that is, those entities that have frequently been named as defendants in these cases ﬁled throughout the United States—with the name and address of their national counsel and information provided by national counsel indicating the state(s) in which they are incorporated, in which they have their principal place of doing business, and in which they will or may contest personal jurisdiction. To eliminate disputes over service of process and reduce the expense of such service, these defendants [have agreed] [shall inform the court within         days as to whether or not they agree] to accept service of process in these cases (without, however, waiving any objections to personal jurisdiction or venue) if a copy of the summons and complaint is sent, by certified mail, return receipt requested, to the person or address shown in Exhibit            . Defendants’ agreement [report to the court] should indicate whether it applies to any case involving    [insert product]    claims filed in any federal district court or in any state court of general jurisdiction.
(b)	Extension of Time to Serve. Notwithstanding Fed. R. Civ. P. 4(m), plaintiffs shall have thirty days after the date of this order (or, if later, thirty days after the date a case is subsequently ﬁled in, removed to, or transferred to this court) in which to effect service on defendants.
8.	Motions
(a)	Meet and Confer. To avoid unnecessary litigation concerning motions, including motions relating to discovery disputes, counsel are directed to meet and confer before ﬁling a motion. In any motion ﬁled, counsel for the moving party must certify that a good-faith effort was made to resolve the dispute.
(b)	Motions Under Federal Rules of Civil Procedure 11, 12, and 56. No motion shall be ﬁled under Rule 11, 12, or 56 without leave of court.
9.	Inactive [Product] [Incident] Docket. The purpose of this paragraph is to establish a procedure for separating cases in which the plaintiff has little or no physical impairment from cases with more serious impairments to assist the court in establishing priorities for managing its docket. The intent is to toll the operation of any applicable statutes of limitation or repose while a case is listed as inactive. The clerk shall establish a separate ﬁle called the “Inactive [product] [incident] Docket,” which shall consist of (1) cases voluntarily dismissed pursuant to a general stipulation prepared by plaintiffs and defendants that sets forth their agreement that such cases can be revived if specific conditions are met, and (2) claims initiated by a “Notice of Claim” procedure. To invoke the notice procedure, a claimant must ﬁle an “Affidavit of Notice of Claim” that includes (1) the name(s), address(es), and marital status of the claimant(s); (2) a brief statement of circumstances of claimant’s exposure(s) to the [product] [incident giving rise to the common claims]; (3) a statement of the nature of the injury, disease, or condition alleged to have been caused by the [product] [incident]; and (4) the names of the entities to be given notice and whom the claimant proposes to serve.
		Upon certification of the claimant(s) that notices have been sent to all listed defendants in the manner set forth in the stipulation of agreement signed by plaintiffs’ and defendants’ representatives, the claims shall be recorded on the inactive docket.
		The ﬁling of the Notice of Claim or the voluntary dismissal pursuant to the stipulation shall toll all applicable statutes of limitation or repose regarding any claims of the plaintiff or plaintiff’s spouse, children, dependents, heirs, or estates arising relating to the exposure to [product] [incident]. Claims may be removed from the inactive docket at any time by the ﬁling and serving of a complaint. Signing the stipulation referred to above signifies the consent of each signing party to this procedure and to the tolling of the statutes of limitations or repose as described above.
10.	Settlement
	[Insert any special provisions to facilitate settlement, such as appointment of a settlement judge or special master to assist the parties, a timetable for scheduling settlement conferences, or procedures for using arbitration, minitrials, or summary jury trials. Also include any provision for contributions by later-settling parties to compensate designated counsel for services previously rendered.]
11.	Discovery
	[In addition to the orders presented below, see separate discovery orders in section 40.25 through 40.29.]
(a)	Plaintiff Fact Sheets.2 Each plaintiff whose case has been transferred to this court shall have 
        days from the entry of this order to complete and serve on defendants a plaintiff fact sheet and an authorization for release of medical records. Counsel shall meet and confer to agree on an electronic format for completion of the Fact Sheet. Transferred plaintiffs shall have      days from the date of this order to produce all documents requested in the fact sheet. When defendants notify the MDL panel of additional cases for transfer to this court, defendants shall serve plaintiffs in those cases with a copy of this order. The information contained in the plaintiff fact sheet must be verified under oath. Plaintiffs’ responses will be treated as answers to interrogatories under Fed. R. Civ. P. 33 and requests for production of documents under Fed. R. Civ. P. 34 and must be supplemented in accordance with Fed. R. Civ. P. 26.
(b)	Document Requests. Within        days of entry of this order, plaintiffs must serve on defendants a master set of requests for production of documents. Any objections [that have not been dealt with in other cases in this litigation]  to those document requests must be served within        days after receipt of the requests. Defendants will begin producing documents not subject to objection on a rolling basis upon entry of this order. The parties will meet and confer regarding a schedule for the orderly production of different categories of documents. The parties will seek to coordinate this schedule with document productions in pending state court proceedings.
(c)	Expedited Discovery. Expedited discovery of plaintiffs and plaintiffs’ health care providers will be allowed when all of the following condition exist:
1.	the plaintiff or a member of plaintiff’s immediate family is terminally ill;
2.	there is an urgent need to record and preserve the testimony because of the gravity of the illness; and 
3.	plaintiff has fully completed the plaintiff fact sheet and provided the execution of medical authorizations required in the fact sheet and defendants have had a reasonable opportunity to conduct informal discovery prior to the taking of a deposition.

Dated: 												
									United States District Judge

Notes:
	1.	See supra section 22.2.
	2.	For examples of plaintiff fact sheets, see In re Baycol Products Litigation, MDL 1431, Pretrial Order No. 10 (D. Minn. Mar. 18, 2002) and In re Phenylpropanolamine (PPA) Products Liability Litigation, MDL No. 1407, Case Management Order No. 6 (W.D. Wash. Mar. 21, 2002).