Photo of John Sullivan

The Eight Circuit issued an opinion last week that highlighted again how product liability complaints with multiple plaintiffs can be susceptible to removal to federal court under CAFA (the Class Action Fairness Act of 2005), particularly if the total number of plaintiffs across the grouped complaints is at least 100.  See Atwell v. Boston Scientific Corp., Slip Op. (8th Cir. Nov. 18,2013).

As a reminder, CAFA permits removal to federal court of “mass actions,” which include “any civil action . . . in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs ’ claims involve common questions of law or fact.  ” 28 U.S.C. §1332(d)(11)(B)(i).  In other words, there needs to be more than 100 plaintiffs and a proposal to jointly try their claims because they share fact or legal issues.  On the other hand, joint pretrial proceeding don’t trigger removal under CAFA.  28 U.S.C. §1332(d)(11)(B)(ii)(IV).  As a result, we more and more see plaintiffs’ lawyers at case management conferences renouncing that they are seeking joint trials or consolidation of cases for trial.  They know that, if they do, they’ll receive a notice of removal the very next day.

The Atwell case is part of the transvaginal mesh litigation, and there were three separate groups of plaintiffs – the Atwell group, the Evans group and the Taylor group.  Atwell, slip op. at 2-3.  Each set of plaintiffs did their best to avoid removal, but couldn’t.

Their first mistake was filing multiple-plaintiff complaints, which suggests a joint trial.  That’s not to say that their lawyers were not being careful to try to avoid CAFA removal.  They were.  They included fewer than 100 plaintiffs in each of the complaints.  But when the complaints were taken together, they exceeded 100 plaintiffs.

That number left them open to removal, particularly once they sought to have the cases assigned to a single judge.  Now, they were still trying to avoid removal.  The attorneys for the Taylor and Evans groups, for instance, emphasized that they were not seeking to consolidate the three cases.  Id. at 7.  But their request for assignment to a single judge was not just for pretrial proceedings.  It was also for trial proceedings.  Id. at 6.  The court found this, and the reasons the plaintiffs gave to coordinate cases, to be enough to allow CAFA removal:

Here, at the motion hearing, counsel for the Evans and Taylor plaintiffs, while disavowing a desire to consolidate cases for trial, nonetheless urged the state court to assign the claims of more than 100 plaintiffs to a single judge who could “handle these cases for consistency of rulings, judicial economy, [and] administration of justice.”  Counsel for the Atwell plaintiffs was even more explicit, explaining that the motion was intended “to have it assigned to the judge that’s going to try the case because of the complexity that’s going to occur all the way through . . . . There’s going to be a process in which to select the bellwether case to try.”

. . . Here, counsel’s statements revealed the purpose of their motions – a joint assignment in which the “inevitable result” will be that their cases are “tried jointly.” . . .  We conclude that, at the time the cases were removed, the motions for assignment to a single judge filed by the three plaintiff groups to the same state circuit court, combined with plaintiffs’ candid explanation of their objectives, required denial of the motions to remand.

Id. at 9-10.  In reaching its conclusion, the court also noted that it wasn’t necessary that there be one trial for all 100 or more plaintiffs.  Rather, plaintiffs merely had to propose, even implicitly, that their claims be tried jointly, be it by one plaintiff or a few plaintiffs, so long as the trial of one or more exemplary plaintiffs (i.e., bellwethers) allowed for the application of issue preclusion to the other plaintiffs’ claims.  Id. at 5.

It’s frankly not that surprising that these cases were removable.  There were multiple-plaintiff complaints, and the plaintiffs wanted one judge to coordinate pretrial and trial matters for consistency of rulings and bellwether trials.  In the Eight Circuit (and possibly anywhere else), that now lands you in federal court.