We would all go down together!!  We can’t help being reminded of the chorus of Goodnight Saigon when we think about consolidated trials in mass tort cases.  Given the availability of bellwether plaintiff procedures, like we blogged about yesterday, there’s no valid reason for consolidating trials of more than one plaintiff in a tort case not involving a common accident.  “[A] few test trials . . . may produce more settlements than would a lengthy and complicated trial of consolidated cases.”  In re Northern Dist. of California, Dalkon Shield IUD Litigation, 693 F.2d 847, 854 (9th Cir. 1982).

No reason at all – except to prejudice the defendants.

We know it – that’s why we fight any attempt to consolidate cases for trial tooth and nail.  The other side knows – that’s why they propose consolidation for trial as a “time saving” measure any chance they get, even though it’s never been shown to save any time and only creates a host of appellate issues.  The courts know it – that’s why consolidation of tort cases for trial mostly seems to happen in jurisdictions with pro-plaintiff reputations, such as West Virginia (notorious for the largest consolidations), South Florida, Atlantic County, NJ, and, yes, Philadelphia, Pennsylvania.

Consolidation takes us all down together.  It invites juries to decide cases on improper bases – that all these people wouldn’t be suing unless something was wrong.  It confuses juries with masses of plaintiff-specific facts and invites averaged verdicts (more about that to come).  It makes proper application of the state of the art defense impossible due to different plaintiffs using products at different times.  For the same reason it makes exclusion of subsequent remedial measures impossible as well, since what’s “subsequent” to one plaintiff isn’t subsequent to another.  And in cases where punitive damages are sought, consolidation of multiple plaintiffs into one trial is, in our view, a per se violation of Philip Morris USA v. Williams, 549 U.S. 346 (2007). More on that, too.

Consolidation’s been on our brain a bit, you might say.

That’s why we’re beyond pleased by the recent decision in Agrofollajes, S.A. v. E.I. Du Pont de Nemours & Co., ___ So.3d ___, 2010 WL 4870149 (Fla. App. Dec. 1, 2010), reversing a consolidation-tainted verdict from South Florida.  Agrofollajes involved a bunch of Costa Rican fern growers who, attracted by the lush South Florida litigation climate, brought claims that Du Pont’s Benlate fungicide (a once widely-used product that’s unfortunately become a Bendectin-style “tortogen”/“litigen”) damaged their ferns.  The claims of 27 different businesses – good ones, bad ones, tall ones, short ones, fat ones, skinny ones – were all consolidated into one big three-ringed circus of a trial.

The result was predictable; we’d say, intended.

At trial, all the supposed “common issues” (the pretext for consolidation supposedly “saving time”) boiled down to one – the way the plaintiffs presented it:

Somebody I think in jury selection said, “One farm? Two farms? Five farms? But 27 farms?” That’s what you’re going to hear. They don’t have anything else in common. . . . What is the one thing they have in common? The proof is going to be Benlate. That’s the chain that links every one of these people that you see in the courtroom today.

Agrofollajes, 2010 WL 4870149, at *2-3 (quoting plaintiffs’ opening statement).

That’s the paradigmatic plaintiff bait and switch in consolidated cases.  Use “efficiency” to give a pro-plaintiff judge an excuse to consolidate – then ditch all that before the jury, and present the simple fact of consolidation as some sort of gut-level proof of causation.  See Sidari v. Orleans County, 174 F.R.D.275, 282 (W.D.N.Y. 1996) (“consolidation of the two cases would likely be overly prejudicial to the defendants” because “lumping” the claims together “amounts to guilt by association”).

It’s utterly improper legally, and a logical fallacy, but that’s why plaintiffs seek consolidation.

Of course the Agrofollajes trial sunk into a miasma of individualized issues:  Did the plaintiff actually use the stuff?  How did they use it?  In what concentrations?  For how long?  What other chemicals did they use at the same time?  How soon after use did problems arise?  Did the farmers suffer adverse weather?  How fertile was their soil?  How good were they at farming generally?  All of these questions would impact liability and/or damages.  Id., 2010 WL 4870149, at *3-4.

And, of course, there was the inherent prejudice of consolidation on the admissibility of subsequent remedial measures.  The trial court let in label changes and recalls generally – one could hardly expect jurors to keep straight which plaintiffs could legally rely upon which evidence.  Id. at *4.

As everyone in the courtroom undoubtedly expected, the jury – after an eight-week trial was totally overwhelmed.  It brought back your classic averaged verdict, glomming all the plaintiffs together and awarding them essentially the same thing:

The jury found against Du Pont on negligence and awarded each of the twenty-seven consolidated plaintiffs identical awards. The jury awarded every plaintiff the same percentage, sixty percent (60%), of the past damages claimed for both lost profits and tax benefits and denied the plaintiffs all future damages, including the costs of remediation, as well as their lost profits during the remediation process.

Agrofollajes, 2010 WL 4870149, at *4 (emphasis added).

The court of appeals (Third DCA for you sticklers) threw the whole thing out, ruling that the consolidation was an abuse of discretion and extremely prejudicial to the defendants.  Florida uses a multi-factorial standard for consolidation that’s not that much different from anywhere else, since the effects of consolidation on trial are essentially the same everywhere:

(1) whether the trial process will be accelerated due to the consolidation

(2) whether unnecessary costs and delays can be avoided by consolidation

(3) whether there is the possibility for inconsistent verdicts

(4) whether consolidation would eliminate duplicative trials that involve substantially the same core of operative facts and questions of law

(5) whether consolidation would deprive a party of a substantive right.

Id., 2010 WL 4870149, at *7 (quoting State Farm Florida Insurance Co. v. Bonham, 886 So.2d 1072, 1075 (Fla. App. 2004)).

Anytime that a bunch of plaintiffs all claiming the same injury from the same product are considered, there will be some issues that are common, but the Agrofollajes court correctly held that the dissimilarities were more important, in the context of what went on at the trial.  “Symptoms” of injury “manifested themselves at different times” for different plaintiffs.  2010 WL 4870149, at *8.  There were “alternative causes” “each unique and distinctively affecting individual [plaintiffs].”  Id.  Damages issues varied widely as well – a plaintiff’s “mitigation practices”; the inherent characteristics of different farms, climate, soil conditions, pest infestations, etc.; some of the farms were still in business, others weren’t.  Id.  And, of course some plaintiffs alleged damages for many years, while others for a much shorter period of time.  Id.

Given those differences, that all plaintiffs claimed the same general sort of injury from the same defendant’s product couldn’t justify consolidation:

On appeal, the plaintiffs argue that despite the numerous differences articulated and entered into evidence regarding the twenty-seven [farmers], it is the same core of operative facts and questions of law that predominate and, thus, consolidation of the twenty-seven claims was proper. We find this argument unpersuasive.

Agrofollajes, 2010 WL 4870149, at *9.  The court looked to federal precedent because Florida’s rule “duplicated” the federal rule governing consolidation (Rule 42(a)).  Id.

Now, one of the things we always hear from plaintiffs is that “well, courts did it in asbestos cases.”  That calls to mind the remark attributed, possibly even accurately, to Adolf Hitler: “who remembers the Armenians?”  Multi-plaintiff trial consolidation was a bad idea in asbestos cases.  It’s an even worse idea in cases where: (1) there actually were warnings, so warning causation is always an issue, (2) there’s no signature disease, and the injury claimed has many possible alternative medical causes; and (3) there’s a learned intermediary – who chose the product after evaluating a plaintiff’s unique medical history and may or may not have relied upon a defendant’s warnings.

Agrofollajes relied significantly upon In re Brooklyn Navy Yard Asbestos Litigation, 971 F.2d 831, 853 (2d Cir. 1992), an asbestos case (duh) in which the Second Circuit grudgingly affirmed the results of a consolidated asbestos trial, where there was considerable evidence of a discriminating jury (there were some defense verdicts and the awards weren’t even close to being in lockstep).  Even so:

[W]e are mindful of the dangers of a streamlined trial process in which testimony must be curtailed and jurors must assimilate vast amounts of information.  The systemic urge to aggregate litigation must not be allowed to trump our dedication to individual justice, and we must take care that each individual plaintiff’s – and defendant’s – cause not be lost in the shadow of a towering mass litigation.

Agrofollajes, 2010 WL 4870149, at *9 (quoting Brooklyn Navy Yard).  Not every jury – not most – is as assiduous as the one in Brooklyn Navy Yard (the Second Circuit noted the trial court’s comment that it was the “best jury” he “ever had”).

Thus when the Second Circuit got a second crack at a multi-plaintiff (48 of them) consolidated (and reverse-bifurcated) asbestos trial in Malcolm v. National Gypsum Co., 995 F.2d 346 (2d Cir. 1993), it stepped in and called a halt.  With so many plaintiffs “the jury was presented with a dizzying amount of evidence.”  Id. at 349.

The Malcolm trial took months.

But it was an asbestos trial.

At the end, only two cases were left – all the others had settled.

Even as to those two, however, the court held the consolidation to be an abuse of discretion.  Echoing the concerns of the earlier panel, the court cautioned that administrative convenience in mass torts is not an excuse to expose defendants to the prejudice of a consolidated trial.  “[C]onsolidation should not be ordered if it would prejudice defendant.”  Malcolm, 995 F.2d at 350 (quoting Flintkote Co. v. Allis-Chalmers Corp., 73 F.R.D. 463, 464 (S.D.N.Y. 1977)).

In the exercise of discretion, courts have taken the view that considerations of judicial economy favor consolidation.  However, the discretion to consolidate is not unfettered. Considerations of convenience and economy must yield to a paramount concern for a fair and impartial trial.

Id.  Even in asbestos cases, it’s an abuse of discretion to consolidate different workplaces, different occupations, different exposure times, different disease types, and living with dead plaintiffs.  Id. at 351-52.  Consolidations based solely upon exposure to the same product produce a “maelstrom of facts, figures, and witnesses” that a jury cannot be expected to keep straight.  Id. at 352.  Notwithstanding Brooklyn Navy Yard, this other consolidation – with nothing in common save exposure to the same product (the earlier case at least had the same workplace) – was an abuse of discretion:

[I]t is possible to go too far in the interests of expediency and to sacrifice basic fairness in the process.  In ordering consolidation we repeat the counsel of Talleyrand, “Pas trop de zèle” – not too much zeal.

995 F.2d at 354.  See also Cain v. Armstrong World Industries, 785 F. Supp. 1448, 1455 (S.D. Ala. 1992) (another overwhelmed asbestos jury awarded uniform damages in a consolidated case; “confusion and prejudice is manifest in the identical damages awarded”).

There was too much zeal in Agrofollajes.  The jury simply threw up its hands after five days of deliberation and awarded formulaic damages:

[Defendant] was subjected to juror confusion and prejudice.  Despite the diverse experiences of the twenty-seven plaintiffs, all were awarded the same exact percentage of their claimed damages.  The common awards by the jury, in conjunction with the vast amount of disparate evidence presented at trial, demonstrate that the consolidation of the twenty-seven claims resulted in a hopelessly confused jury.  Thus, the consolidation was thus inappropriate.

2010 WL 4870149, at *10.

Given the disparate facts – and the uniform result – unfair prejudice was all too evident in Agrofollajes.  “Unfair prejudice as a result of consolidation is a broadly recognized principle.”  Id. at *9.  In Florida, as elsewhere, “even if consolidation is the ‘most practical and efficient method of processing’ a case, practicality and efficiency should not outweigh a defendant’s right to a fair trial.”  Id. (quoting State v. Williams, 453 So.2d 824, 825 (Fla. 1984)).  Accord Johnson v. Celotex Corp., 899 F.2d 1281, 1285 (2d Cir. 1990) (“[c]onsiderations of convenience and economy must yield to a paramount concern for a fair and impartial trial”); Arnold v. Eastern Air Lines, Inc., 712 F.2d 899, 906 (4th Cir. 1983) (en banc) (“convenience may not prevail where the inevitable consequence to another party is harmful and serious prejudice”).

There was more than just jury confusion afoot in the Agrofollajes consolidation.  There was flat out legal error, too.  As we’ve already mentioned, one of the many vices of consolidation in mass tort cases is that defendants are deprived of the state of the art defense and exposed to improper admission of subsequent remedial measures.  The result is a “perfect” plaintiff’s case being tried, with all plaintiffs able to rely on all evidence relevant to anybody, regardless of differences in time and place.  Agrofollajes called an error an error:

By consolidating the claims, the plaintiffs introduced evidence to the jury that would not have been admissible had the cases been tried separately.  Jurors who considered the claims of plaintiffs who had never used Benlate or did not use it after 1991, were allowed to hear evidence of [defendant’s] subsequent remedial measures, even though the measures were inadmissible as to those plaintiffs.

2010 WL 4870149, at *10 (error to admit a recall, a label change, and the ultimate withdrawal of the product from the market where those were subsequent remedial measures as to some of the plaintiffs).  See Malcolm, 995 F.2d at 351 (consolidation improper where different exposure times “increas[e] the likelihood of prejudice, particularly concerning ‘state-of-the-art’ evidence”); Cain, 785 F. Supp. at 1457 (where “[e]vidence that would not have been admissible in [a] single plaintiff’s case had these cases been tried separately” is admitted, consolidation held an abuse of discretion); see Arnold, 712 F.2d at 907 (improperly introduced evidence, caused by consolidation of plane crash plaintiffs, “implanted in the minds of the jury resulted in prejudice, almost surely prejudice from the outset and certainly prejudice after the trial had wended its way to conclusion”).

Because “the operative facts of the individual plaintiffs were disparate” and “predominated over the common issues” the consolidation in Agrofollajes was an abuse of discretion.  Agrofollajes, 2010 WL 4870149, at *10.  Improper application of a supposed time-saving device flushed the entire trial down the drain. The court remanded the case, pointedly instructing the trial court not to try cutting corners again:

[W]e hold that the trial court abused its discretion in consolidating the claims brought by the twenty-seven plaintiffs against [defendant].  We thus reverse and remand these cases, with instructions that the claims be severed as individual plaintiffs in separate trials.

Id. at *10.

Needless to say, we like the result in Agrofollajes.  One of us had the same thing happen in a reverse bifurcated asbestos trial in the Philadelphia Court of Common Pleas well over a decade ago, now.  It was an eight-plaintiff group, and the jury, like the jury in Agrofollajes, couldn’t handle all the information and brought back eight identical $100,000 verdicts for plaintiffs whose ages and exposures were very different.  We were all set to make these same arguments on appeal in that case but….

It was an asbestos case. It settled.

We particularly commend the court’s emphasis on the “predominance” of common issues.  See Id. at *8 (“the record likewise demonstrates that these common issues did not predominate at trial”); at *10 (“where questions affecting only certain individual plaintiffs predominate over common questions” consolidation is prejudicial), at *10 (“operative facts of the individual plaintiffs . . . predominated over the common issues presented at trial. . . .  Consequently, we hold that the trial court abused its discretion”).  Predominance of common issues is a test that’s been highly developed in the context of class actions.  Application of that body of law to the related question of trial consolidation strikes us as a good idea.  As we’ve pointed out many times on other posts, in product liability mass torts, individual issues almost always “predominate” over common ones.

That’s the rule we’d like to see, because we think consolidation in product liability mass torts is inevitably a bad idea.  That (like the poor Armenians) asbestos defendants had it done to them, and some courts let the plaintiffs get away with it, does not make it right.  Most of the time, the asbestos defendants didn’t even preserve the consolidation issue for appeal or failed under much tougher mandamus standards.  Other defendants who made other types of products have done better.  Consolidation of mass tort plaintiffs who are injured in different places, at different times, and in different ways “render[s] the label mass tort into a self-fulfilling prophecy.”  In re Repetitive Stress Injury Litigation, 11 F.3d 368, 373-74 (2d Cir. 1993) (granting mandamus to reverse consolidation).  In granting mandamus, the Repetitive Stress court made some useful observations about consolidation:  “A party moving for consolidation must bear the burden of showing the commonality of factual and legal issues in different actions.”  11 F.3d at 373.  A trial court “must examine the special underlying facts with close attention before ordering a consolidation.”  Id.  “Although consolidation may enhance judicial efficiency, consideration of convenience and economy must yield to a paramount concern for a fair and impartial trial.”  Id.  “[I]t is possible to go too far in the interests of expediency and to sacrifice basis fairness in the process.”  Id. at 374.

In In re Van Waters & Rogers, Inc., 145 S.W.3d 203 (Tex. 2004), the Texas Supreme Court receded from its previous allowance of some rather questionable consolidations.  It granted mandamus to stop the consolidation of twenty otherwise disparate plaintiffs claiming “toxic soup” injuries from the same industrial facility:

[T]he most critical factors weigh against consolidation. . . . [B]ecause the plaintiffs . . . were exposed to entirely different chemical mixtures, the other dissimilarities involving disease and occupations are magnified. Establishing a defendant’s liability based on one plaintiff’s exposure to a certain chemical combination will not aid in establishing a different defendant’s liability for another plaintiff’s exposure to an entirely different mixture of chemicals. Rather, it would only serve to prejudice and confuse a jury. . . . Because analysis of the evidence . . . demonstrates that significant juror confusion and undue prejudice would result from a trial of this particular group of twenty plaintiffs, we hold that the trial court abused its discretion in consolidating this group for trial.

Id. at 210.  Accord Insolia v. Philip Morris Inc., 186 F.R.D. 547, 550-51 (W.D. Wis. 1998) (“[j]udicial resources are wasted, not conserved, when a jury is subjected to a welter of evidence relevant to some parties but not others”; “prejudice [occurs] when there are inadequate assurances that evidence will be weighed against the appropriate party and in the proper context”); Grayson v. K-Mart Corp., 849 F. Supp. 785, 790 (N.D. Ga. 1994) (“any possible benefits to be derived from a common trial are more than offset by the confusion to the jury and prejudice to the defendant from proceeding with these cases jointly;” “[t]here is a tremendous danger that one or two plaintiffs’ unique circumstances could bias the jury against defendant generally, thus, prejudicing defendant with respect to the other plaintiffs’ claims”).

Consolidation is even a bigger error in prescription medical product mass torts.  “Physicians were responsible for implanting the devices at issue, and the warnings and information given to them by the manufacturers and in turn, the warnings and information given to each plaintiff by her physician presumably will vary from patient to patient and from product to product.”  In re Bristol-Myers Squibb Co., 975 S.W.2d 601, 604 (Tex. 1998) (suggesting that consolidation was probably error, but record did not meet tougher mandamus standard).  The Mississippi Supreme Court reached the same conclusion repeatedly.  See Wyeth-Ayerst Laboratories v. Caldwell, 905 So. 2d 1205, 1209 n.10 (Miss. 2005) (a “trial of the seven plaintiffs’ claims against the four doctors and [defendant] will inevitably result in . . . confusing presentation of evidence”); Janssen Pharmaceutical, Inc. v. Bailey, 878 So.2d 31, 48 (2004) (“little doubt” that consolidated trial “created unfair prejudice for the defendant by overwhelming the jury with this testimony, thus creating confusion of the issues”); Janssen Pharmaceutica, Inc. v. Armond, 866 So.2d 1092, 1101 (Miss. 2004) (“the transaction or occurrence for each underlying claim is each doctor’s prescribing [the drug] to each plaintiff”).  See also In re Levaquin Products Liability Litigation, 2009 WL 5030772, at *3-4 (D. Minn. Dec. 14, 2009) (three-plaintiff consolidation improper due to different prescribing physicians notwithstanding plaintiff’s threat to call “nearly twenty generic witnesses”); In re Baycol Products Liability Litigation, 2002 WL 32155269, at *2 (D. Minn. July 5, 2002) (the “same basic set of facts” is absent where plaintiffs “went to different doctors or teams of doctors and medical facilities and providers”); Graziose v. American Home Products Corp., 202 F.R.D. 638, 640 (D. Nev. 2001) ( “separate cases” cannot be joined where they involve “separate physical conditions and history, and, except for the expert witness on the effects of [the drug], separate witnesses”); In re Consolidated Parlodel Litigation, 182 F.R.D. 441, 447 (D.N.J. 1998) (“predominance of individual . . .causation and marketing evidence” precludes consolidation); In re Diet Drugs, 1999 WL 554584, at * 4 (E.D. Pa. July 16, 1999) (joinder of plaintiffs improper where “plaintiffs [had] not purchased or received diet drugs from an identical source, such as a physician, hospital or diet center”); Simmons v. Wyeth Laboratories, 1996 WL 617492, at *2 (E.D. Pa. Oct. 24, 1996) (no “same basic set of facts” where only similarity was alleged injury from the same drug); In re Bone Screws Products Litigation, 1995 WL 428683, at *2 (E.D. Pa. July 15, 1995) (“same occurrence or transaction” requirement not “satisfied by the fact that claimants have the same or similar device of a defendant manufacturer implanted”); Hasman v. G.D. Searle & Co., 106 F.R.D. 459, 461 (E.D. Mich. 1985) (denying consolidation in “cases involv[ing] different warnings, different warranties and perhaps defects, and different inserting physicians”).

Experience and precedent demonstrate that consolidated multi-plaintiff trials inherently favor plaintiffs, practically guarantee jury confusion, make trials longer and more complicated, and create lots of additional appellate issues.  Compared to bellwether trials, they provide no additional useful case valuation information, and indeed consolidation garbles whatever value information a trial might otherwise produce.  No two pharmaceutical mass tort plaintiffs are alike.  Even if they suffer a similar injury, they will have a different dosage, frequency, and total duration of product use.  They always have different medical histories and pre-existing risk factors.  They may or may not be compliant with physician’s orders.  Each plaintiff will have a different doctor who prescribed whatever drug for a different reason specific to that plaintiff’s unique medical condition.  Each prescriber also has a different degree of experience with and knowledge about the drug, and obtained that knowledge from different sources that may or may not include the defendant’s warnings and sales representatives.

The different prescriber’s backgrounds put warning causation – whether the doctor relied on the defendant’s allegedly inadequate information – squarely at issue.  That’s way different from your typical no-warning-at-all/lay plaintiff asbestos case.  Not only that, but the substance of the warnings about a particular drug almost certainly changed and got more extensive over time.  Asbestosis and mesothelioma are “signature diseases”; practically nothing but asbestos causes them.  Most prescription drug litigation involves injuries with lots of alternative causes – heart attacks, strokes, diabetes, suicide, broken medical devices, and the like.  Thus, unlike the asbestos fiasco, adequacy of warnings, medical causation, and warning causation are all hotly contested issues.

Finally, we also think that, under current Supreme Court precedent, consolidation of plaintiffs for trial in a case involving punitive damages is a per se constitutional violation.  In Philip Morris v. Williams, the Court held that Due Process prohibits punitive damages not specifically tied to the defendant’s conduct towards that particular plaintiff.  “[A] jury may not . . . use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited on nonparties.”  549 U.S. at 355.

We did not previously hold explicitly that a jury may not punish for the harm caused others. But we do so hold now. . . . [W]e believe the Due Process Clause prohibits a State’s inflicting punishment for harm caused strangers to the litigation.

Id. at 356-57.  All plaintiffs in mass tort litigation are “strangers” to one another’s cases in the sense that word is used in Williams.

So what are states supposed to do to protect defendants’ Due Process rights in punitive damages cases?  “[T]he Due Process Clause requires States to provide assurance that juries are not asking the wrong question, i.e., seeking, not simply to determine reprehensibility, but also to punish for harm caused strangers.”  Id. at 355.  The Court hesitated to put the states in a strait-jacket, put required them to follow procedures protective of Due Process.  “Although the States have some flexibility to determine what kind of procedures they will implement, federal constitutional law obligates them to provide some form of protection in appropriate cases.”  Id. at 357 (emphasis original).

Whatever more Williams might require, we think that, at a bare minimum, states aren’t permitted to adopt procedures that make the Due Process violation at issue in Williams – a verdict awarding punitive damages on the basis of harm to “strangers” – more likely to occur.  And that’s exactly what consolidation does.  It deliberately makes things worse, by ensuring that juries hear, in each of the consolidated claims they consider, evidence concerning harm to the consolidated “strangers.”  As “it is constitutionally important for a court to provide assurance that the jury will ask the right question, not the wrong one,” id., consolidation of multiple punitive damages plaintiffs is constitutionally infirm.  “[S]tate courts cannot authorize procedures that create an unreasonable and unnecessary risk of any such confusion occurring.”  Id. at 357.  Consolidation is simply the antithesis of the procedural protections required by the Court in Williams.  Instead of minimizing the likelihood of an improperly based punitive damages award, consolidation gratuitously creates that very potential.  “Judicial discretion is a legal discretion and not a personal discretion; a legal discretion to be exercised in conformity to the Constitution.”  Smith v. Hooey, 393 U.S. 374, 377 n.5 (1969).

With respect to multi-plaintiff trial consolidations in mass torts we’re unabashedly conservative  – standing athwart the clanking machinery of mass torts yelling “stop in the name of Due Process.”  So-called “traditional” modes of litigation “reflect far more than habit.”  In re Fibreboard, 893 F.2d 706, 710 (5th Cir. 1990).  They “reflect the very culture of the jury trial.”  Id. at 712.  Whatever efficiencies might arise in the “ongoing struggle with the problems presented by the phenomenon of mass torts,” complex, mass consolidations make a mockery of the very word “trial.”  “It is called a trial, but it is not.”  Id.

We’d like to thank Dan Rogers, one of the Shook Hardy attorneys who won Agrofollajes, for providing us with his principal brief in the case, which we hope that others faced with similar situations will find useful.