Every year, consumers file a multitude of complaints against companies that have caused either physical or economic harm to them. The most common claims made by consumers involve defective medications, medical devices, or other products.
When a large number (usually hundreds to thousands) of people allege a product is defective and file complaints, the cases are consolidated as a mass tort. Consolidating the cases assists plaintiffs in having a stronger case against the defense. From there, plaintiff attorneys distribute fact sheets that contain a series of questions used to collect details about each client’s case. However, due to a recent trend, attorneys are beginning to use census forms that are collected earlier in litigation instead of fact sheets. Receiving the information earlier enables courts to better manage the litigation process of mass tort cases by saving time, money, and other resources.
What are Census Forms?
Census forms are questionnaires given to clients with potential claims to learn more information about their complaints. They usually contain questions regarding the personal information of the claimants, their injuries/ damages, medical records, and product usage, when relevant. The forms were created to “spare defendants the expense of tailoring countless interrogatories to individual claimants”[1] which allowed plaintiffs’ attorneys to fulfill early discovery with ease.
Typically, courts use a census form, also sometimes known as an “initial census form,” to estimate how many cases are filed and unfiled.[2] Unfiled cases are cases that have not been officially filed with the court and served to the defendant. Attorneys will look at the unfiled cases, figure out why they are unfiled, and then help process them to hopefully be filed. In certain cases, like the Zantac lawsuit, the court issues a secondary census, also known as a “census plus form,” to retrieve additional information that typically takes longer to receive.[3] Included in these secondary forms are more specific questions, like additional details about their injuries and medical treatment, that follow up with their answers on the initial census form. Only cases that are deemed viable are advanced to the secondary form phase. By splitting up the forms into phases, courts learn new information faster than if only one fact sheet was used later down the line. This allows courts to weed out those with invalid claims and accurately estimate the extent of the case early on.
Why Are Census Forms Utilized Earlier in Litigation?
Based on a recent trend showing courts utilizing census forms over fact sheets in large mass tort cases, like Zantac, the question remains as to why courts are preferring this method. Census forms”[4] This outcome helped determine their effectiveness which resulted in more courts opting to utilize this new method of information collection. When more information is learned earlier, courts and both parties can receive a better general idea of what direction litigation will lead in. This information is also helpful in settlement negotiations and evaluating which cases should proceed to trial first.
Emory Law School professor, Jamie Lynn Dodge, spearheaded this trend toward using census forms earlier in litigation. In Bradley Colgate, et al. v. JUUL Labs, Inc., et al., Dodge “provided guidance and assistance to the parties in their extensive negotiations to create an initial census” best suited to the needs of this specific litigation.[5] Her trend also spilled over into the usage of census forms in other mass tort lawsuits, including the 3M Earplugs Hearing Loss suit.
Why Do Courts Need Census Forms?
Census forms assist in showing the court the extent of clients with valid claims. They also help determine who should lead the litigation against the defense to ensure the plaintiffs’ best interests are represented.[6] On top of that, census forms assist courts in determining which firms have retained the most clients to learn who to appoint to leadership positions such as lead counsel, plaintiffs’ executive committee, and more.[7] Claimants’ product usage and medical records allow courts, defendants’ attorneys, and plaintiffs’ attorneys to determine two things:
1) if the claimant was a true user of the product
2) if the product was the root cause of their medical issue, injury, or death
As this information is verified, the claimant group grows smaller which allows both parties to closely examine and focus on the cases with valid claims.
In comparison to fact sheets, census forms contain fewer questions, making them less tedious for claimants to complete. They provide key information earlier on than fact sheets would, giving courts and both parties an earlier advantage on mass tort cases. Receiving this information early allows courts to better prepare, in terms of scheduling and allocation of resources, for mass tort cases. Plus, both parties learn the advantages and disadvantages of their case based on the inventory of legitimate clients and their claims. Census forms also take away the burden for attorneys having to locate clients years later as the case progresses to complete fact sheets. Clients often relocate, change their contact information, and become harder to communicate with after years pass in their cases. In some unfortunate cases, clients also may become ill or pass away. By getting them to disclose case-reliant information initially, attorneys can further clients’ cases without having to contact them constantly in the future for this information. To sum it up, gathering this information at intake, gives plaintiffs’ attorneys a better idea of whether they want to take clients’ cases.
Census Forms and Mass Tort Cases
Mass tort cases that utilize census forms earlier in litigation are better led and more easily understood by the court and both parties than those who utilize fact sheets. Census forms allow more information to be available more quickly before cases go into the later stages of litigation enabling courts to prepare specific resources, like the scale of attorneys needed, and the option to plan out the case timeline. . Instead of relying on a generalized approach to mass tort cases while waiting on clients’ completion of fact sheets, courts can anticipate how to best prepare for each step of the litigation process early on with census forms.
Census forms also assist in providing clarity for the client throughout the litigation process. Clients with potential cases realize earlier on whether their claim is valid and if they are potentially eligible for compensation. For clients with ineligible claims, attorneys can inform them that status at intake, rather than leading them on until they realize they are not eligible for relief. For clients with cases deemed eligible for a claim, attorneys can paint a more accurate picture of what litigation will look like to them.
As census forms become more widespread, the handling of mass tort cases is evolving to better serve the clients involved. Courts are becoming more efficient at managing the litigation process, which in turn, causes leadership to be stronger and well-informed. Census forms have created a better system to compensate victims with mass tort claims without burdening the courts and the progression of utilizing census forms from fact sheets benefits the entire litigation process.
Written by:
Catherine Perez
Law Clerk
WATTS GUERRA LLP
Four Dominion Drive, Bldg. Three, Suite 100
San Antonio, Texas 78257
Phone: (210) 447-0500
Frank Guerra
Board Certified – Personal Injury Law
Texas Board of Legal Specialization
WATTS GUERRA LLP
Four Dominion Drive, Bldg. Three, Suite 100
San Antonio, Texas 78257
Phone: (210) 447-0500
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[1] https://judicialstudies.duke.edu/wp-content/uploads/2018/09/MDL-2nd-Edition-2018-For-Posting.pdf
[2] https://www.aboutlawsuits.com/zantac-lawsuit-census-order-170319/
[3] https://www.aboutlawsuits.com/zantac-lawsuit-census-order-170319/
[4] https://www.aboutlawsuits.com/zantac-lawsuit-census-order-170319/
[5] https://cand.uscourts.gov/wp-content/uploads/cases-of-interest/in-re-juul-labs/CMO-No-2-Initial-Case-Census.pdf
[6] https://www.aboutlawsuits.com/zantac-lawsuit-census-order-170319/
[7] https://cand.uscourts.gov/wp-content/uploads/cases-of-interest/in-re-juul-labs/CMO-No-2-Initial-Case-Census.pdf
