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cases to trial would create enormous pressure, and redound to the benefit of all plaintiffs. What’s more, this sort of work product is well within the means
and abilities of most, if not all, PSCs now; indeed, because they are paid to provide this (via assessments on all cases in the consolidated litigation), it would
seem they have an absolute obligation to do so. In the past, the critical shortcoming
of MDL work product has been the fail- ure to bridge the gulf between, on the one hand, a database of thousands of “hot” documents, scores of purportedly critical liability depositions and reams of expert reports, and, on the other hand, the presentation of this material at trial. A mountain of data is assembled in order to convince the defendant to resolve claims fairly and adequately, but it is seldom put to widespread use. The Vioxx trial package committee sought to bridge the gap by offering more than a collec- tion of “hot” documents and endless deposition summaries. The end product, instead, was an actual road map to a Vioxx trial. The case presentation and themes section of the package nicely encapsulated this organizing principle, as demonstrated in its constituent sections: • Master Order of Proof The Master Order of Proof offered
direction as to how the liability case should be presented at trial, with specific recommendations about which witnesses’ videotaped depositions to play, together with the evidence to be offered through the witness. It provided thumbnail intro- ductions for all liability and expert wit- nesses and detailed the elements of the plaintiff ’s case-in-chief which could be established through the witness. • Exhibit Database The exhibit database organized a
core of approximately 5,000 liability doc- uments, identified by the MDL Discovery Committee as “hot,” “trial,” and “refer- ence,” which were critical to the presenta- tion, and preparation, of the plaintiff ’s case. The database permitted the user to search documents by theme, subtheme, date, Bates number, description, or text. • Exhibit Theme Grid and Exhibits By the end of the Vioxx litigation,
Merck had produced in excess of 20 mil- lion pages of documents. More than 5,000 of these were coded as “reference” (that is, important to some element of the case) or higher. An enormous amount of effort was expended in reviewing,
See Tide, Page 39 36 — The Advocate Magazine JANUARY 2012
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