Judge William Orrick III, U.S. District Court of the Northern District of California

Embracing an idea floated by the defense bar, judges in at least two prominent multidistrict litigation proceedings have ordered lawyers to prescreen some of the lawsuits through an "initial census" process.

The early vetting orders, issued last week, come from U.S. District Judge William Orrick III of the Northern District of California, in cases against San Francisco-based e-cigarette maker Juul, and U.S. District Judge Casey Rodgers of the Northern District of Florida, in lawsuits over 3M's earplugs. They mimic an idea that the defense bar has pushed as a means to weed out meritless lawsuits. General counsel from 48 companies also floated the idea in an Oct. 3 letter to the Committee on Rules of Practice and Procedure.

Alex Dahl, general counsel of the Lawyers for Civil Justice, which has advocated for MDL reforms, such as an early vetting rule, said the idea of an "initial census" is "gaining traction."

"The idea is to require claimants to make a showing of exposure to the alleged cause of harm and an injury caused by that exposure soon after filing," Dahl wrote in an email. "The purpose is to address the well-known fact that, in many large MDLs, at least 30 to 40% of the claims are meritless. Addressing this problem is critical to the integrity of the MDL process and the FRCP, because allowing large numbers of meritless claims to sit on the docket unexamined conveys false information to the judge, the parties, and other stakeholders while complicating the risk assessments needed to value cases for settlement."

In large MDLs, judges often order plaintiffs to fill out fact sheets, but an "initial census" is not the same thing. Fact sheets are longer and more detailed and come much later in the MDL, often when lawyers are preparing for bellwether trials or settlement.

Early vetting, however, goes to the key questions in the MDL, such as whether the plaintiff has proof that the product harmed him or her.

"Fact sheets are typically lengthy forms that require written responses to a list of questions as opposed to actual evidence, although medical authorizations and a few records may be provided," Dahl wrote. "In contrast, an initial census would be concise and require evidence of two key threshold items which plaintiffs or their counsel should have before filing a case—exposure and harm—such as a copy of a prescription showing you took the medicine and a doctor's report showing you suffered a side effect."

On Friday, Orrick appointed three plaintiffs lawyers to come up with a proposal for an "initial census" of the Juul cases ahead of a Nov. 8 hearing, at which the judge plans to hear arguments over leadership appointments. So far, about 50 lawyers in the Juul cases have filed applications for appointments to a leadership post.

"I am interested in generating an initial census in this litigation to assist me in determining who should be on the plaintiffs' executive committee, plaintiffs' steering committee, and other appointments, as well as how to manage the case from the outset," Orrick wrote in his order.

The three lawyers he appointed were Sarah London, a partner at San Francisco's Lieff Cabraser Heimann & Bernstein; Ellen Relkin, of New York's Weitz & Luxenberg; and Joseph VanZandt of Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Alabama. He also "requested the assistance" of Jaime Dodge, director of the Institute for Complex Litigation and Mass Claims at Emory University School of Law in Atlanta.

That institute has a pilot program "exploring the use of early census to help inform MDL participants of the nature and type of cases so the court and parties can get their arms around the litigation," Relkin wrote in an email. The program, she wrote, has "involved a dialogue between the plaintiff and defense bar."

"In the JUUL litigation, there is a mix of personal injury and addiction cases as well as class cases on behalf of consumers, school districts, and for medical monitoring such that getting more specifics on the volume and scope of  the claims may be helpful in productively and efficiently  advancing the litigation," she wrote.

In their letter this month, the 48 general counsel suggested that the rules committee impose an "initial census" rule that comes with a 60-day deadline. "This would strongly discourage meritless claims," the letter says. "It is not a difficult standard." One of the general counsel was from Altria Group Inc., the parent company of Philip Morris, which owns 35% of Juul and is an additional defendant in some of the lawsuits before Orrick.

In an Oct. 22 pretrial order in the 3M earplug MDL, Rodgers approved a six-page "initial census" questionnaire that plaintiffs must fill out by Dec. 23 or risk having their case dismissed. Information on the questionnaire included locations of the plaintiff's duty stations, whether the plaintiff used the earplugs at issue, and the plaintiff's specific physical injuries alleged. Plaintiffs also must provide documentation, starting Nov. 6, such as proof of military service, disability benefits and hearing tests.

Nearly 2,300 lawsuits allege that a version of 3M's dual-ended Combat Arms Earplugs, used in the U.S. military for both training and combat, had a defective design that caused service members to suffer from hearing loss and ringing in the ears, called tinnitus.

Of the 53 plaintiffs lawyers Rodgers appointed in May to lead the 3M cases, six were on an "early vetting" subcommittee. In June, lawyers agreed at a meeting at the New York office of Kirkland & Ellis, which represents 3M, to "explore the concept of an initial census process in this litigation."

Rodgers also is among a handful of MDL judges that ordered plaintiffs' lawyers to disclose whether they have accepted outside litigation funding of their lawsuits—another proposed rule that the defense bar and the general counsel in this month's letter have supported.