Twenty Years of Litigation Management or What's Love Got To Do With It?

By: Elizabeth B. Juliano

On the morning of March 16, 1984, LMI's first day of operation, I walked what seemed like an endlessly long hallway toward the one hundred square foot office I rented from a law firm in the Superior Building in downtown Cleveland, Ohio. The day before, I had left my colleagues at Hesser, Armstrong, Toomey & Disantis, where I worked for several years as a paralegal, and where I received a superb education in trial preparation from some excellent lawyers.

My office furniture was loaned. My technology consisted of a telephone, a typewriter, dictating and transcribing equipment, and what was then a state-of-the-art "portable" computer: it weighed over 20 pounds and was the size of the suitcase I now wheel through airports. My staff was myself. My work product was mainly the summarization of medical records, primarily in asbestos litigation. I would review the medical records, dictate the summary onto tapes, and then transcribe those tapes well into the night. If new information arrived (which it always does when you're reviewing someone's entire medical history), I would retype the entire document to incorporate the additional information. In 1984, this was state of the art.

As my company's twentieth anniversary approached, and I sunk into periods of reminiscence about the early years, I noticed a subtle change in my staff. Just as a bird in flight signals an immediate direction change to the flock, the hapless staff member caught in the presence of my reveries managed to send a silent "nostalgia alert" to the rest of the office. People approaching would veer off as if they encountered a strong prevailing wind. In these instances, the victim was often left to languish in exchange for the survival of the group. In fairness, the stories of the old days (when, for instance, asbestos was an emerging mass tort) are nearly impossible for today's staff to fully comprehend. For instance, in 1984, we used valuable drive time to sing along with What's Love Got To Do With It for which Tina Turner won a Grammy; now, we talk on cell phones while covertly glancing at our Blackberrys (but never while changing lanes). Asbestos is in its fourth or fifth generation as a mass tort. Law clerks no longer race to the courthouse to meet filing deadlines, but hit "send" on their computers moments before midnight, and each time a member of the FDA even glances at a drug the pharmaceutical companies must batten down the hatches.

While nostalgia can be comforting in a "thank goodness we survived that" sort of way, I do believe there is real value in reflection. Over the years, as my company grew, technology evolved, and the actual "doing" of our job became more and more efficient, the culture of litigation became more sophisticated. That is to say, there was a marked increase in the number of cases, brought by many more plaintiffs, in more jurisdictions, about many more products. In the past twenty years, not only have we seen the terms mass tort and serial litigation coined and utilized, they now define specialty practice areas, fostering the growth of concepts including MDL consolidation, and plaintiff attorney coalitions. The simple fact that LMI has grown from a staff of one to nearly one hundred is testament to how the "litigation industry" has evolved in scope, complexity and volume.

As such, and for all of these years, we have watched the rise and decline (and occasional destruction) of companies, attorneys, and the litigation that affected them. We who have worked in product liability defense for the past two decades have participated in defense groups that spawned relationships closer than those among some families. We have seen our colleagues marry - sometimes each other - and raise families. We have taken side trips to interesting places, have helped each other grieve the loss of loved ones, and have celebrated defense verdicts. And while these professional relationships flourished, so did the "industry" of litigation.

The LMI vantage point is sometimes from the trial table, but most often it is from behind the scenes. In 1984 we were typically retained by defense counsel. However, as the scope of litigation widened, we were more often retained directly by in house counsel who wished to centralize the function of medical information management for the dissemination of consistent information to outside defense counsel. Our first national mass tort project was assigned by Dow Corning in 1992 in conjunction with the implant litigation. It provided the opportunity for a valuable insight: though both are focused on the same litigation, the information requirements of defense counsel and in house counsel can be very different.

When I founded this company, law firms rarely had medical staff in house. Now, it is necessary for a firm's professional staff to include MD/JDs, RN/JDs, RN/Paralegals, and others similarly qualified. As law firms added their own in house medical staff, the LMI challenge became one of adding more value to our services. Because the firms' staff included medical professionals, the question became: what can LMI provide beyond what the professionals that are already working within the firms are providing? The answer to this question is multifaceted, and heralded changes not only in what information was delivered, but how. And, while the answer to "what is valuable" changes for each litigation scenario, there are some consistent themes.

In 1984, medical information gleaned from the review of plaintiff medical records provided, of course, an understanding of a plaintiff's medical history. From there, defenses could be explored, including statute of limitations, alternative causation, compliance, product identification, and others. Twenty years ago, this was sufficient, as cases were usually evaluated, settled, and/or tried individually or in small groups. Typically, defense counsel would talk or write to in house counsel to discuss the merits and defense strategy for a case. As the mass tort momentum grew, we observed that the in house role evolved so that he or she functioned as the information officer between the litigation and the corporate officers and shareholders. Today, our clients' in house counsel must continue to make daily decisions on individual cases, but they must also be ready to report - often at a moment's notice - on the overall constellation of cases in terms of liability, allegations, case severity, product identification, retrospective and prospective cost analysis, jurisdictional idiosyncrasies, and additional information on both a micro and macro basis. The staggering impact of large-scale litigation has resulted in a matching need for information.

Outside counsel's need for medical information in litigation has also evolved. We have seen that for a law firm to be selected as national counsel for mass tort litigation, it can no longer rely solely on a reputation for successes in trial. It is true that chosen firms must have outstanding trial counsel, but the ability to secure work often rests on their ability to manage the cases. Likewise, at LMI, we still produce accurate, objective, medical record summaries, but in order to keep pace with our clients' requirements we've developed web and data technology to provide instantaneous, "fingertip" ways to view the information for an individual plaintiff, a series of plaintiffs, topical chronologies, detailed analyses, critical data for all cases, the actual medical records, and monitor trends across all of the cases.

The world of litigation has become much speedier, and so have we. Our clients now access our work product and the plaintiff's records predominately via our secure website. This instantaneous access to medical information, combined with the capability to search, sort and view details of all cases associated with a specific litigation (described elsewhere in this newsletter), are powerful tools to assist in house counsel with their information needs, and integrate well with law firm talents for managing cases and the ultimate trial or exit strategy. This state-of-the-art model requires close collaboration between the defendant corporation, outside counsel and us, with heavy utilization of, and reliance on, technology to facilitate seamless sharing of information. We are starting to see the synergistic results of this collaborative model, which I believe will become the typical approach to managing the defense over the next twenty years. This is a long, long way from the days of Tina Turner and a typewriter.

There are many people, in addition to my talented and tireless professional staff, who are responsible for the success LMI has achieved since March 16, 1984. First, there was the local Cleveland defense community that supported my efforts in what was then an innovative idea. Then, there were the regional and national counsel who found value in our services and spread the word. Finally, there are the in house counsel who, in collaboration with outside counsel, have allowed us to assist them with the defense of their corporations. Working with you all has been a privilege and an honor, and one to which we look forward for the next twenty years.

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