Discovery
Discovery in Mass Torts
The importance of discovery in modern litigation cannot be overstated, and nowhere is this truer than in the context of complex litigation. Consider, for example, a typical drug case. Because a design defect liability theory will likely be off the table, the main theory of liability will be failure to warn. But in order to prevail on a failure to warn theory, the plaintiffs will need to be able to show that the manufacturer-defendant had newly acquired information that was not previously submitted to the FDA as part of the New Drug Application, and which should have motivated the manufacturer to strengthen the label’s warnings. Much of the information supporting that claim will be in the possession of the manufacturer itself.
Or consider a case involving environmental contamination where both the wrongful conduct and the associated injuries go back years or decades. Under many states’ laws, the injury itself triggers the running of the statute of limitations, not knowledge of facts that would provide a reasonable link between the injury and the wrongful conduct that caused it. Claims that a person’s Parkinson’s Disease, which was diagnosed six years ago, was caused by exposure to the herbicide paraquat twenty years ago may be time-barred unless that person can show that the statute of limitations was tolled, and one common way to do so is through the doctrine of fraudulent concealment. As with the case of newly discovered information, however, information supporting a claim of fraudulent concealment—the defendant had knowledge of the dangers of its product but wrongfully concealed that knowledge—may only be available in one place: the internal records of that defendant.
The Mass Effect in Discovery
In these and numerous other instances, discovery is the first cornerstone of making a mass tort case. Yet as with the other areas discussed in this book, the mass effect can be seen in the questions courts are called upon to answer, and in the actual process followed. In 1947, the U.S. Supreme Court observed that “[m]utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.”[1] Invoking Hickman, the Federal Rules Committee later wrote that “the spirit of the rules is violated when advocates attempt to use discovery tools as tactical weapons rather than to expose the facts and illuminate the issues by overuse of discovery or unnecessary use of defensive weapons or evasive responses.”[2] In considering their own litigation experience as well as the materials discussed below, the reader is left to their own conclusions about whether this spirit is entirely dead or simply moribund.
[1] Hickman v. Taylor, 329 U.S. 495, 507 (1947).
[2] Fed. R. Civ. P. 26, 1983 Comments of the Advisory Committee.