Sorry about not posting anything yesterday.  What can we say?  We got busy.

We’re still busy today, but we can’t leave our readers in the lurch twice in a row.

We’ve railed about the unfairness of consolidated trials – that is, where a court forces a defendant to trial against a motley crew of plaintiffs with nothing in common save claims that they were injured by the same product – at length before.  We’re content with that post stating all the many policy and practical reasons why such consolidations are prejudicial to the defense of cases (which is why plaintiffs seek them and some courts allow them), difficult for jurors to make sense of, and otherwise a bad idea.

In that vein we applaud the decision in Johnson v. Advanced Bionics, slip op., 2011 WL 1323883 (W.D. Tenn. Apr. 4, 2011), which ordered the severance of two previously joined cases for trial.  If, as in Johnson, it’s improper to try two same-device cases together, then it’s even worse to mash three, five, or even ten different plaintiffs’ cases into the same three-ringed circus of a trial.

Both the plaintiffs (a “Johnson” group and a “Purchase” (that’s the plaintiff’s last name) group) claimed to be injured by the defendant’s cochlear (that’s part of the inner ear) implants.  There was a recall, and predictably enough suits were filed.  Both plaintiffs had been implanted with the same implant not quite 18 months apart by different doctors in different hospitals.  The failure of each implant was investigated by the defendant and blamed on the same (recalled) component, which allegedly let moisture into what was supposed to be a watertight product.  2011 WL 1323883, at *2.

Why exactly these two plaintiffs’ cases were originally consolidated isn’t clear.  Since they both have the identical docket number, our guess is that their lawyer tried to save on filing fees by lumping them together.

The first issue that contributed to the severance order was the defendant’s position that the type of leak in each case was different – one involving a “traditional” (that is, the general problem that caused the recall), and the other a different, unusual and harder to detect type of leak.  2011 WL 1323883, at *4.  Plaintiffs blustered that the leaks were the “same,” but there was a disputed issue of fact.  That “dispute alone” justified separate trials, since to consolidate on this bases amounted to deciding the dispute about failure type in the plaintiffs’ favor.  Id.  One leak is apparently a conceded defect, while the other is not, thus:

A joint trial would conflate this evidence, risk confusion of the liability issue, and invite the jury to conclude that [defendant’s] admission as to [one] device applies equally to [the other] device.  Given this disputed evidence over a key issue, there is a significant risk that [defendant] would be prejudiced by a joint trial,

Id.

The almost 18 month time difference between the two plaintiffs’ implantation dates was also a factor weighing in favor of severance.  Thus, a lot of evidence admissible in the later case wouldn’t be permissible with respect to a jury’s evaluation of the earlier case, either logically (because events that hadn’t happened yet simply aren’t relevant), or legally (where the later events would be subsequent remedial measures).  The court held that it would not be realistic to instruct a jury to unring a bell and not pay attention to evidence that, in a separate trial, would never have been admissible in the first place.  2011 WL 1323883, at *5 n.6.  Moreover, the primary defense to the “traditional” leak case appears to be state of the art, the entire issue would be irrelevant to a case where the leak had a different cause.  Id. at *5.

The two plaintiffs also had dramatically different damages, one having suffered virtually no developmental delay (these were infant implants), but the other claimed significant delay.  2011 WL 1323883, at *6.  While that might not have been enough, standing alone, these differences only heightened the need for separate trials.  Id.

The prejudice inherent in a consolidated trial was not outweighed by “judicial economy.”  The factual differences not only introduced a strong potential for prejudice, but also reduced any degree of time saving.   2011 WL 1323883, at *6.

In this age, where plaintiffs seek to flood courts with filings and then seek to use sheer numbers to induce courts to take procedural shortcuts that prejudice defendants and impinge on their right to a fair trial, it’s refreshing to find an opinion reconfirming a fundamental premise of our judicial system – that each case is different and justice is best dispensed individually.