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Sequenced Discovery in Mass Tort Litigation

By Andrew K. Solow, Aaron Levine and Daniel Meyers

In the often-quoted words of the Honorable Richard A. Posner, “the courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead it.” Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996). This sentiment is of particular importance in mass tort litigation (e.g., toxic tort and pharmaceutical personal injury cases), because without admissible general causation evidence, plaintiffs' claims fail as a matter of law and the defendant is entitled to summary judgment. The problem in mass tort litigation, however, is that it is common for parties to engage in years of expensive litigation before the issue of general causation is presented to the court.

This article focuses on sequenced discovery ' an underutilized tool that permits courts to focus initial discovery on general causation. Sequenced discovery front-loads the issue of general causation and prevents plaintiffs from dragging out litigation without having been put to the test of proving that the product at issue can cause the alleged injury. As United States Senior District Judge Paul A. Magnuson explained, “targeted discovery and resolution of the issue of general causation serves the interest of all parties and the Court, promotes judicial efficiency, and prevents the potential waste of the parties' and the Court's resources.” In re Viagra Prods. Liab. Litig., MDL No. 1724, slip op. at 1 (D. Minn. June 30, 2006).

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