This post is from the non-Reed Smith side of the blog.

Looking back on the blog, the last time we posted about the Pelvic Mesh MDL was this summer when we lauded a remand judge for not allowing plaintiffs to expand their expert reports to include opinions already excluded by the MDL judge. At that time we commented briefly on the uncertainty that accompanies remand. That decision was a positive post-remand development. Today’s decision is the flip side. Remand gone awry and unfortunately, affirmed by the Eleventh Circuit.

The decision is captioned Eghnayem v. Boston Scientific Corporation, 2017 U.S. App. LEXIS 20432 (11th Cir. Oct. 19, 2017) and is actually a consolidation of four plaintiffs’ cases. The cases all involve Florida residents and were consolidated and remanded from the MDL in the Southern District of West Virginia to the Southern District of Florida. Id. at *3. The remand court proceeded to try the 4 cases together over defendant’s objection. After almost identical multi-million dollar verdicts were entered for each plaintiff, defendant appealed.

The primary grounds on appeal were the improper consolidation of the cases for trial and the exclusion of evidence of FDA clearance. The Eleventh Circuit said both decisions by the district court were not an abuse of discretion. Interestingly while the court found limiting instructions were sufficient to overcome the prejudice of the multi-plaintiff trial, it also found that limiting instructions would not have cured the prejudice that would have resulted if the FDA clearance had been admitted into evidence. That’s a bit of plaintiffs getting to have their cake and eat it too.

We posit there is only one reason for consolidating trials of more than one plaintiff in a tort case not involving a common accident – to prejudice defendants. Plaintiffs argue consolidation saves time, but is there any proof to back that up? It certainly creates a host of appellate issues that clearly take more time. Plaintiffs in Eghnayem offered testimony from 25 witnesses at trial. Largely, testimony of individual plaintiffs and their individual physicians which have no relevance to the claims of the other plaintiffs. Id. at *7. Testimony that confuses juries with different plaintiff-specific facts and frankly invites juries to reach improper conclusions, such as all these people wouldn’t be suing unless something was wrong.

Defendant, of course, raised all these prejudicial concerns which the trial court and the appellate court believed could be swept away by “expressly instruct[ing the jury] to consider each plaintiff’s claims separately.” Id. at *12. How exactly a juror is supposed to do that is unknown and feels almost impossible. But the appellate court went even further and presumed that “even had the cases not been consolidated, the plaintiffs would likely have been able to submit evidence of other patients with similar injuries.” Id. at *15. Evidence of adverse events or clinical trial events may be admissible as to notice – but in a severely more limited way than when 4 distinct claims and injuries are litigated fully to the same jurors.

For example, one plaintiff had “graphic images” showing her removed mesh and the tissue that was removed along with it. The Eleventh Circuit concluded that sometimes graphic evidence is particularly helpful. Id. at *17-18. And it might well be – for that particular plaintiff. But to conclude that those images would have been admissible as to the other 3 plaintiffs borders on inconceivable.

What about evidence that post-dated some of the plaintiffs’ implantations. Where drug or device usage occurred at varying times, one of the many problems of consolidation 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. The Eleventh Circuit agreed with defendant that post-implant evidence couldn’t go to notice in those cases, but it may be relevant for some other reason and therefore, limiting instructions over exclusion was the proper course. Id. at *19. But it is a course that wouldn’t be necessary if the cases were tried individually.

Finally, defendants argued that the similarity in the damage awards – almost identical – is evidence that the jury was confused; unable to distinguish between and among the plaintiffs. Given plaintiffs with “different medical histories, and different treating doctors; . . . prescribed the [mesh] at different times for different conditions; and claimed to suffer different injuries, after different lengths of exposure, resulting in different treatment courses,” id. at *6-7, the uniform result isn’t a mystery, it’s juror confusion leading to a formulaic verdict. The appellate court, however, found that “similar” injuries resulting in “similar” verdicts wasn’t unreasonable. Id. at *14. But that’s just buying into the flawed premise that these claims were similar enough to try together in the first place. With that as the starting place, it is no wonder the Eleventh Circuit found no abuse of discretion.

This case highlights several of the key reasons drug and device defendants fight against consolidated trials. If you want a more in depth discussion of the topic, including cites to rulings that agree with us, check out our post here.

There was one other significant issue on appeal. The district court excluded all evidence of the device’s 510k FDA clearance. This isn’t the first mesh case to reach this conclusion. See our post on the issue here discussing a post-remand case that made a better call by allowing the evidence albeit with a strong limiting instruction. While not perfect, that decision is certainly better than the Eleventh Circuit finding that 510k clearance “has no relevance to the state law claims.” Id. at *22. Or its decision that admitting the evidence would have been unnecessarily time-consuming and led to jury confusion on core issues. Id. at *23. We would disagree with those conclusions anyway but find them particular hard to swallow where the same court concluded that a multi-plaintiff trial wasn’t unduly prejudicial or confusing. We are in fact confused as to how a jury instruction regarding what the 510k process is and is not would not be curative, but a limiting instruction that the jury “may not even consider the fact that there’s more than one case being brought” alleviates the myriad of prejudices a multi-plaintiff trial visits upon defendants.