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It now happens at the outset of almost every major mass tort. Plaintiffs’ counsel, having through various forms of solicitation amassed a “great unwashed” of nominal clients about whom they know next to nothing, chooses to dump them all on one unfortunate court in a single complaint. Of course, by filing a single complaint, counsel pays only one filing fee.
So now, as defense counsel, we’ve got a mess on your hands. One complaint – hundreds, maybe thousands, of plaintiffs – and no information about any of them. It amounts to an instant mass tort. Often it’s worse, in that otherwise diverse plaintiffs are fraudulently misjoined with non-diverse plaintiffs (or non-diverse defendants against which only very few plaintiffs have a claim) in an attempt to defeat removal of the action to federal court under diversity jurisdiction.
Obviously, the first thing that runs through our heads is to move to sever on grounds of misjoinder. The law’s pretty clear nowadays that these gigantic complaints are completely improper under Fed. R. Civ. P. 20(a) and most state joinder rules. A great deal of case law in federal and state courts holds that product liability cases are generally inappropriate for multi-plaintiff joinder because such cases involve highly individualized facts and “[l]iability, causation, and damages will. . .be different with each individual plaintiff.” Janssen Pharmaceutical, Inc. v. Armond, 866 So. 2d 1092, 1096 (Miss. 2004); see In re Prempro Products Liability Litigation, 417 F. Supp.2d 1058, 1059-60 (E.D. Ark. 2006); In re Silica Products Liability Litigation, 398 F. Supp.2d 563, 651-54 (S.D. Tex. 2005); Jones v. Nastech Pharmaceutical, 319 F.Supp.2d 720, 728 (S.D. Miss. 2004); In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Products Liability Litigation, 294 F. Supp. 2d 667, 679 (E.D. Pa. 2003); In re Baycol Products Litigation, 2003 WL 22341303, at *3 (D. Minn. 2003); In re Baycol Products Litigation, 2002 WL 32155269, at *2 (D. Minn. July 5, 2002); In re Rezulin Products Liability Litigation, 168 F. Supp.2d 136, 145-47 (S.D.N.Y. 2001); In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Products Liability Litigation, 1999 WL 554584, at *4 (E.D. Pa. July 16, 1999); Simmons v. Wyeth Laboratories, Inc., 1996 WL 617492, at *4 (E.D. Pa. Oct. 24, 1996); Purdue Pharma, L.P. v. Estate of Heffner, 904 So. 2d 100, 103 (Miss. 2004); Adams v. Baxter Healthcare Corp., 998 S.W.2d 349, 358 (Tex. App. 1999); Blalock Prescription Center, Inc. v. Lopez-Guerra, 986 S.W.2d 658, 663-64 (Tex. App. 1998).
Other precedent holds the same thing in the context of consolidation. In re Repetitive Stress Injury Litigation, 11 F.3d 368, 373 (2d Cir. 1993) (granting mandamus and vacating order consolidating repetitive stress injury claims); Graziose v. American Home Products Corp., 202 F.R.D. 638, 641 (D. Nev. 2001); (“This case should be six separate cases. They will each involve separate discovery, separate claims, separate damages, separate defendants, separate [products], separate physical conditions and history, and. . .separate witnesses. The Court will sever the claims”); Janssen Pharmaceutica, Inc. v. Grant, 873 So. 2d 100 (Miss. 2004) (rejecting the aggregation for trial of four drug cases because the “litigable events” underlying each plaintiff’s claims were different); Sapiro v. Sunstone Hotel Investors, L.L.C., 2006 WL 898155, at *2 (D. Ariz. Apr. 4, 2006) (rejecting attempt to consolidate two Legionnaires’ Disease cases); In re Consolidated Parlodel Litigation, 182 F.R.D. 441, 447 (D.N.J. 1998); (same; fourteen prescription drugs cases); Glussi v. Fortune Brands Inc., 714 N.Y.S.2d 516, 518 (App. Div. 2000) (same; eight cigarette cases).
This wasn’t always the case. Back when we first met one another, laboring in the Orthopedic Bone Screw vineyards, it was still an open question whether plaintiffs were going to get away with this kind of thing. One of the earlier opinions prohibiting joinder simply because all the plaintiffs used the same product and claimed the same injuries was ours. In re Orthopedic Bone Screw Products Liability Litigation, 1995 WL 428683 (E.D. Pa. July 17, 1995). Even there, the court allowed what we consider misjoinder if unrelated plaintiffs all had the same prescriber. Getting these mega-complaints split up is still dicey in some locales, as Kemp v. Metabolife International, Inc., 2003 WL 22272186 (E.D. La. Oct. 1, 2003), illustrates.
So one thing we’ve learned in these situations is that we have an ally in an unexpected place – the court clerk. Almost all clerk’s offices are not organized to handle complaints of this nature. It is difficult or impossible for them to set up individualized, plaintiff-specific files where there is only one docket number. Also, many clerk’s offices make a significant portion of their revenues from collection of filing fees and they know when they’re being gypped. Well, it just so happens that judge’s chambers and clerk’s offices deal with one another constantly. So when we’re wondering how to get the judge to listen to us out-of-state (usually) defense counsel as against a “home-court” (again, usually) plaintiff’s counsel, consider getting a letter or other support from the court clerk complaining about the misjoinder. It’s helped a lot, particularly in state court.