Practice Tip: Experts and the Morass of Mass Tort Litigation

An expert retained in mass tort litigation may be required to focus on multiple cases consolidated for discovery and trial, involving thousands of pages of medical records, deposition transcripts, and other discovery material. Expert opinions in mass tort litigation must address both case-specific and generic issues. A statement that is innocuous in one case may be harmful when applied to another. Taken together with the technical sophistication of the issues involved in each case, these issues necessitate a measured approach for dealing with experts.

The following tips are provided to assist the practitioner in handling and preparing expert witnesses in mass tort litigation. We discuss how to organize thousands of pages of discovery material provided to experts, prepare experts for deposition and trial, and form a team responsible for these tasks. Although the tips focus on experts in mass tort cases, they apply equally to other types of litigation involving multiple-party complex cases.

Pitfalls of Unintentional Disclosure

To prevent inadvertent disclosure to an opposing party, it is critical that counsel be familiar with the rules relating to the discoverability of documents possessed and prepared by expert witnesses in the jurisdiction where an action is being tried. For example, in New Jersey, factual data provided to an expert witness and considered by the expert in rendering a report is discoverable, but draft reports typically are not. See N.J. Court Rule 4:10-2. The practitioner must be cognizant of the evidentiary rules applicable to expert witnesses in the venue where a case is being tried. (These tips do not address the rules of evidence in different jurisdictions. Federal Rule of Evidence (“FRE”) Article VII addresses opinion testimony by both expert and lay witnesses. Generally, the Federal Rules permit a qualified expert witness to testify if that testimony will aid the trier of fact in understanding the evidence or determining a fact in issue in the case. FRE 702. The expert's testimony must be based on “sufficient facts or data,” and emanate from reliable “principles and methods” reliably applied to the facts. Id.)

The dangers of unintentional disclosure are magnified in mass tort litigation with the volume of cases and the importance that expert testimony can have on an ultimate resolution. The production of documents must be meticulously reviewed to ensure that no attorney work product or other privileged material is disclosed in documents provided to an expert.

Moreover, counsel must be aware that e-mail communication with an expert can pose particular dangers. The tendency toward informality in e-mail and the ease with which documents can be disseminated may dictate against widespread use of e-mail in expert communications. As always, telephonic and face-to-face discussions are important methods of communicating with experts. Not only does this enhance communication, but it also avoids many of the pitfalls of written correspondence.

In mass tort litigation, hundreds of individual cases may have a unified case management schedule. Consequently, an expert may be reviewing and opining on literally hundreds of cases at any given time. To prepare a medical expert in a mass tort product liability case adequately, counsel must remember that the expert should be comfortable with case-specific medical issues viewed in the context of the litigation as a whole. This can include highly technical epidemiological, toxicological, medical and other issues on a mass scale that relate to causation, damages and other aspects of the litigation. The following suggestions may assist counsel in dealing with experts in this type of litigation.

How to Provide Discovery Materials to Experts

When submitting plaintiff medical records for expert review before the expert prepares an opinion, the material must be meticulously organized in a logical and user-friendly manner. The importance of this is magnified in mass tort cases, due to the volume of cases. Where an expert must review numerous records and other materials in multiple cases at once, counsel should organize those records uniformly. An expert receiving documents in multiple cases must be able to know where to look for the important records in each case. For example, it may be advantageous to organize records in chronological order while tabbing key records separately. This will enhance the expert's ability to anticipate the location of essential documents in each case. Further, uniform organization will allow the expert to focus on critical documents and thus boost efficiency in a cost-effective manner.

Even after an opinion has been rendered, counsel must provide the expert with updated discovery as it becomes available. This should be accomplished in a manner that facilitates the expert's ability to assimilate new information with that already received.

Meetings and Mock Trials

Face-to-face meetings may be used to review questions opposing counsel will ask at deposition or trial. This will help prepare the expert for examination and allow counsel to judge how the expert will react to cross-examination at deposition and direct examination at trial. Where practical, use of a mock trial may facilitate assessment of how an expert will come across to a jury and help familiarize an inexperienced expert with the trial setting.

Prior to an expert's testimony at trial, counsel should consider advising the expert of the composition of the jury so that the expert can focus his or her testimony on the intended “audience.” That said, counsel must be careful not to over prepare an expert so as to avoid the expert appearing overly rehearsed, and therefore unpersuasive. Even the most qualified expert will not be compelling to a jury if he or she appears to be testifying from a script.

Form a Team

In mass tort litigation, wherever possible, it is wise to create a team of attorneys and paraprofessionals to handle primary contact with experts. Members of this team should be divorced from the day-to-day handling of the individual cases about which the expert is opining. The appropriate members of that team will review materials prior to submission to the expert, prepare the expert for deposition and trial, and liaise between the expert and counsel working on a particular case.

Of course, attorneys working on individual cases must be utilized to ensure that the expert addresses factual issues important to the case. Counsel involved in each case should be familiar with the factual underpinnings of the expert's opinion and how that opinion serves the case. This will help the expert balance concerns that are generic to the litigation as a whole with the requirements of each specific case in which the expert renders an opinion.

Conclusion

In mass tort litigation the importance of expert-related protocols is magnified by the volume of cases and the critical impact of expert opinions on the litigation as a whole. The volume of cases and technical sophistication of the scientific issues frequently involved come together to intensify the need for refined and practical procedures for dealing with experts. The benefits that a properly prepared expert can bestow on technically sophisticated litigation are immense. Consequently, it behooves counsel to employ additional safeguards in dealing with experts in mass tort cases. The methods described above may help avoid some common pitfalls, and it is hoped that they will assist the expert in helping to bring the litigation to a beneficial resolution.

Christopher P. DePhillips is a principal of the law firm of Porzio Bromberg & Newman in Morristown, NJ and a member of the firm's Product Liability and Toxic Tort Group as well as the firm's Governmental Affairs Practice. His practice encompasses product liability, toxic tort and general personal injury defense. He also is a Registered Lobbyist in the state of New Jersey and undertakes legislative and regulatory lobbying for a wide range of clients at both the state and federal levels. David William Tyler is an associate with the firm and concentrates his practice on corporate regulatory counseling and litigation in the areas of product liability, pharmaceuticals, and commercial law.

An expert retained in mass tort litigation may be required to focus on multiple cases consolidated for discovery and trial, involving thousands of pages of medical records, deposition transcripts, and other discovery material. Expert opinions in mass tort litigation must address both case-specific and generic issues. A statement that is innocuous in one case may be harmful when applied to another. Taken together with the technical sophistication of the issues involved in each case, these issues necessitate a measured approach for dealing with experts.

The following tips are provided to assist the practitioner in handling and preparing expert witnesses in mass tort litigation. We discuss how to organize thousands of pages of discovery material provided to experts, prepare experts for deposition and trial, and form a team responsible for these tasks. Although the tips focus on experts in mass tort cases, they apply equally to other types of litigation involving multiple-party complex cases.

Pitfalls of Unintentional Disclosure

To prevent inadvertent disclosure to an opposing party, it is critical that counsel be familiar with the rules relating to the discoverability of documents possessed and prepared by expert witnesses in the jurisdiction where an action is being tried. For example, in New Jersey, factual data provided to an expert witness and considered by the expert in rendering a report is discoverable, but draft reports typically are not. See N.J. Court Rule 4:10-2. The practitioner must be cognizant of the evidentiary rules applicable to expert witnesses in the venue where a case is being tried. (These tips do not address the rules of evidence in different jurisdictions. Federal Rule of Evidence (“FRE”) Article VII addresses opinion testimony by both expert and lay witnesses. Generally, the Federal Rules permit a qualified expert witness to testify if that testimony will aid the trier of fact in understanding the evidence or determining a fact in issue in the case. FRE 702. The expert's testimony must be based on “sufficient facts or data,” and emanate from reliable “principles and methods” reliably applied to the facts. Id.)

The dangers of unintentional disclosure are magnified in mass tort litigation with the volume of cases and the importance that expert testimony can have on an ultimate resolution. The production of documents must be meticulously reviewed to ensure that no attorney work product or other privileged material is disclosed in documents provided to an expert.

Moreover, counsel must be aware that e-mail communication with an expert can pose particular dangers. The tendency toward informality in e-mail and the ease with which documents can be disseminated may dictate against widespread use of e-mail in expert communications. As always, telephonic and face-to-face discussions are important methods of communicating with experts. Not only does this enhance communication, but it also avoids many of the pitfalls of written correspondence.

In mass tort litigation, hundreds of individual cases may have a unified case management schedule. Consequently, an expert may be reviewing and opining on literally hundreds of cases at any given time. To prepare a medical expert in a mass tort product liability case adequately, counsel must remember that the expert should be comfortable with case-specific medical issues viewed in the context of the litigation as a whole. This can include highly technical epidemiological, toxicological, medical and other issues on a mass scale that relate to causation, damages and other aspects of the litigation. The following suggestions may assist counsel in dealing with experts in this type of litigation.

How to Provide Discovery Materials to Experts

When submitting plaintiff medical records for expert review before the expert prepares an opinion, the material must be meticulously organized in a logical and user-friendly manner. The importance of this is magnified in mass tort cases, due to the volume of cases. Where an expert must review numerous records and other materials in multiple cases at once, counsel should organize those records uniformly. An expert receiving documents in multiple cases must be able to know where to look for the important records in each case. For example, it may be advantageous to organize records in chronological order while tabbing key records separately. This will enhance the expert's ability to anticipate the location of essential documents in each case. Further, uniform organization will allow the expert to focus on critical documents and thus boost efficiency in a cost-effective manner.

Even after an opinion has been rendered, counsel must provide the expert with updated discovery as it becomes available. This should be accomplished in a manner that facilitates the expert's ability to assimilate new information with that already received.

Meetings and Mock Trials

Face-to-face meetings may be used to review questions opposing counsel will ask at deposition or trial. This will help prepare the expert for examination and allow counsel to judge how the expert will react to cross-examination at deposition and direct examination at trial. Where practical, use of a mock trial may facilitate assessment of how an expert will come across to a jury and help familiarize an inexperienced expert with the trial setting.

Prior to an expert's testimony at trial, counsel should consider advising the expert of the composition of the jury so that the expert can focus his or her testimony on the intended “audience.” That said, counsel must be careful not to over prepare an expert so as to avoid the expert appearing overly rehearsed, and therefore unpersuasive. Even the most qualified expert will not be compelling to a jury if he or she appears to be testifying from a script.

Form a Team

In mass tort litigation, wherever possible, it is wise to create a team of attorneys and paraprofessionals to handle primary contact with experts. Members of this team should be divorced from the day-to-day handling of the individual cases about which the expert is opining. The appropriate members of that team will review materials prior to submission to the expert, prepare the expert for deposition and trial, and liaise between the expert and counsel working on a particular case.

Of course, attorneys working on individual cases must be utilized to ensure that the expert addresses factual issues important to the case. Counsel involved in each case should be familiar with the factual underpinnings of the expert's opinion and how that opinion serves the case. This will help the expert balance concerns that are generic to the litigation as a whole with the requirements of each specific case in which the expert renders an opinion.

Conclusion

In mass tort litigation the importance of expert-related protocols is magnified by the volume of cases and the critical impact of expert opinions on the litigation as a whole. The volume of cases and technical sophistication of the scientific issues frequently involved come together to intensify the need for refined and practical procedures for dealing with experts. The benefits that a properly prepared expert can bestow on technically sophisticated litigation are immense. Consequently, it behooves counsel to employ additional safeguards in dealing with experts in mass tort cases. The methods described above may help avoid some common pitfalls, and it is hoped that they will assist the expert in helping to bring the litigation to a beneficial resolution.

Christopher P. DePhillips is a principal of the law firm of Porzio Bromberg & Newman in Morristown, NJ and a member of the firm's Product Liability and Toxic Tort Group as well as the firm's Governmental Affairs Practice. His practice encompasses product liability, toxic tort and general personal injury defense. He also is a Registered Lobbyist in the state of New Jersey and undertakes legislative and regulatory lobbying for a wide range of clients at both the state and federal levels. David William Tyler is an associate with the firm and concentrates his practice on corporate regulatory counseling and litigation in the areas of product liability, pharmaceuticals, and commercial law.