One of your dynamic blogging duo — we won’t say which one — strolled down the street recently to watch, on behalf of an interested client, the opening statements in a product liability trial.
The trial court had consolidated the claims of more than two dozen plaintiffs to be decided in this one trial. (The judge viewed this as a fair solution. Plaintiffs’ counsel filed lawsuits on behalf of a gazillion people, so conducting a trial of just a few score at once seemed like an intelligent compromise — maybe even cutting the defense a break.)
But look at what consolidation does.
Some of the problems with consolidation are generic. Procedurally, for example, consolidation dumbs down the jury. Better-educated jurors, in white-collar jobs, might be able to sit on a jury for three days or a week. But they can’t sit for a trial that will last a month or two, so consolidation eliminates the better-educated jurors and seats the unemployed, union members, and retirees. In different cases, that bias might cut in different directions, but it surely skews the process.
What struck us most during the opening statements, however, was how consolidation changed the arguments available to counsel.
On the plaintiffs’ side, counsel stressed the defendant’s complete unwillingness to admit that any of the few score plaintiffs had been hurt by the defendant’s product. “Maybe the product didn’t hurt all of my clients, but they were all exposed to the product, they’re all suffering the same injury, and the product plainly harmed at least some of them. The defendant is unwilling even to admit that it hurt even one of them. The defendant simply won’t take responsibility for any of the harm that it’s caused.”
That argument, of course, is available only because of the consolidation. If the cases were being tried one-by-one, plaintiff’s counsel could not accuse the defendant of stubbornly refusing to admit that anyone had been hurt.
In addition to creating extra arguments for the plaintiff, consolidation limits the strategic choices available to the defense.
In a typical product liability trial, the two sides’ cases can be like ships passing in the night. The plaintiff is trying the defendant — “the defendant put profits before safety!” — and the defendant is trying the plaintiff — “the plaintiff was a heart attack waiting to happen!” When a court consolidates the claims of scores of plaintiffs, that typical defense is taken off the table. Even though the argument may be true, defense counsel’s credibility erodes over time as he argues that plaintiff number one was a heart attack waiting to happen for these three reasons, and plaintiff two a heart attack waiting to happen for these two different reasons, . . . and plaintiff thirty-six a heart attack waiting to happen for these reasons, . . . and plaintiff fifty-four a heart attack waiting to happen for these reasons.”
It just starts to feel as though the defendant doesn’t believe anyone could have been hurt by the product.
Instead of trying the usual case — focusing the defense argument on the pre-existing condition of the plaintiff, or possible alternate causes of the injury — defense counsel is forced to (1) focus more than he naturally would on defending the company, and (2) infuse into the opening statement common threads among the plaintiffs that will ultimately be used during trial to undercut the claims of many plaintiffs at once.
We’re not saying that approach never works; defendants occasionally win consolidated product liability trials, too. But we are saying that consolidation is not a routine procedural decision that can be made lightly with little regard for the result.
The court’s decision to aggregate the claims of multiple product liability plaintiffs in a single trial will dramatically change every aspect of the trial — from the nature of the jury, to the arguments available to the plaintiffs, to the structure and theme of the defense opening statement, witness examinations, and closing arguments.
Courts and counsel should be keenly aware of those implications when they argue and decide motions to consolidate.