The Actos multidistrict litigation is set to become one of a handful of litigations that will use the somewhat controversial predictive coding technology during its discovery motions. In Re: Actos (Pioglitazone) Products Liability Litigation is a consolidated action in which the plaintiffs are suing manufacturer Takeda Pharmaceuticals because they say the diabetes drug Actos significantly increases the risk of bladder cancer when it is taken for extended periods of time.
With so many individual lawsuits similar in scope and claims, a judicial panel determined that forming a federal multidistrict litigation (MDL) would be necessary to hear all the trials in a timely fashion. In an MDL, the discovery phase — when evidence and testimony are admitted or denied — is combined for all the cases. When discovery ends, each case goes back to its original lawyer for trial. Any monetary judgments or settlements are separate and not shared among the members of an MDL.
Computers Help to Classify Documents
The Honorable Hanna Doherty, who is overseeing the Actos MDL in the Western District of Louisiana, recently entered a Case Management Order that explains the protocol for electronically stored information (ESI). In her order, Judge Doherty specified that both plaintiffs and defendants are required to use predictive coding.
According to Forbes, “Predictive coding is a type of machine-learning technology that enables a computer to help ‘predict’ how documents should be classified based on limited training provided by their human counterparts.”
What this means is that a computer program can predict which documents from thousands will need to be produced during litigation, thereby saving legal organizations millions of dollars they would normally pay people to comb through all the related documents. Supporters think predictive coding is faster and more accurate than manual reviews of legal documents, Forbes reports.
Disputed Technology May Affect Actos Cases
So, what’s the downside? Forbes says the technology is more difficult to use than keyword search, concept search, email threading and data clustering, which are tools that legal professionals are already familiar with. Furthermore, the tools cannot control statistical sampling, which can affect their accuracy.
Still, four judges, including Doherty, have been willing to give predictive coding a shot this year. It will be interesting to see how this new tool affect the growing number of lawsuits lined up In Re: Actos (Pioglitazone) Products Liability Litigation. Of course we may not know the effects for some time because the first test trial is not expected to start until November 2014.
Although that may seem far in the future, Doherty has already set a detailed schedule of deadlines for the MDL, filling out the next two years. Hundreds of cases currently are included in the consolidated litigation, but thousands are expected to join. To that end, Doherty is making sure to use all the tools, including predictive coding, at her disposal to keep the litigation on track.