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This is actually Rachel Weil’s post, but she is having password problems, so Bexis is doing the actual posting


We spent last weekend in a shore house with extended family members (all vaccinated, of course) gathered to celebrate a cousin’s milestone birthday.  Since we had last gathered, babies had been born, the family matriarch had aged perceptibly (and poignantly), a new puppy (smuggled into the “no pets allowed” rental) had joined the fold, and one cousin had completed a gender transition.  It was a wonderful weekend of togetherness (notwithstanding the relative whose snoring kept the whole house awake all night), sweetened by fresh memories of isolation.

Togetherness—specifically, consolidation for trial—is also the theme of today’s case.  For those of us who spend our professional lives in the mass tort space, this is a ubiquitous issue, with plaintiffs seeking to capitalize on the cumulative effects of consolidated trials and defendants typically resisting.  In In re Injactafer Prods. Liab. Litig., (Crockett v. Luitpold Pharma, Inc., Krueger v. Luitpold Pharma., Inc.) 2021 WL 3145729 (E.D. Pa. July 26, 2021), the plaintiffs alleged that they were injured by the defendant’s injectable iron replacement medication.  The litigation included eighty cases consolidated for pretrial purposes by agreement of the parties.  The two plaintiffs in today’s case – the first two plaintiffs scheduled for trial – moved for a consolidated trial of their cases.

The court explained that Fed. R. Civ. P. 42(a) permitted it to consolidate cases for trial if they “involve[d] a common question of law or fact.”  Injectafer, 2021 WL.3145729 at *1.   Once a movant satisfies this threshold requirement, “the decision to consolidate rests in the sound discretion of the district court,” which “should weigh the benefits of judicial economy against the potential for new delays, expense, confusion or prejudice.”  Id. (internal punctuation and citations omitted).

The court held that the plaintiffs had “met their threshold burden, as their claims involve[d] many common factual and legal issues.”  Id.  The “operative question” then involved the balancing test weighing any additional judicial economy against the risks of prejudice and confusion.  The plaintiffs argued that consolidation would produce “modest” gains in judicial economy—five weeks to try the cases together versus a total of eight weeks to try them separately.  The court commented,

Such time is precious, to be sure, given the current COVID-19 trial backlog.  But it is doubtful the second trial will be as lengthy as Plaintiffs suppose given that decisions made on evidentiary issues in the first trial are likely to have a salutary reduction on the time needed to try subsequent cases.  Further, consolidation would require its own time investment to ensure the risks of juror confusion and prejudice are minimized.

Id.   Moreover, the court continued, “These will be the first cases tried of many in this series:  separate trials will help define the exact factual and legal contours of the claims and defenses.”  Id. (internal punctuation and citation omitted).

In addition, as the court explained, “case-specific issues [raised] the spectre of prejudice should [the] actions be tried together.”  Id. at *2.   The two plaintiffs were prescribed the defendant’s product a year apart, and the drug’s label was revised in the intervening year.  The defendants argued that F.R.E. 407 barred the introduction of the new label warning as a subsequent remedial measure in the case of the plaintiff who received the earlier prescription, but not in the other plaintiff’s case, to support the plaintiffs’ claims that the defendant fraudulently concealed and intentionally omitted material information from the product’s labeling.  The plaintiffs also had disparate evidence on warnings causation:  one plaintiff’s doctor testified that he would prescribe the drug again knowing the risks he knows today, while the other doctor testified differently.  The defendant argued that consolidation “would allow Plaintiffs’ counsel to minimize or obscure this issue, as well as potentially conflate the facts from one claim to the other.”  Id.

In the end, the court denied the motion, holding that, while the defendant’s concerns would be less compelling if the potential efficiency gains were greater, “discretion as the better part of valor counsel[ed] that the matters should be tried separately” since the cases were the first to be tried and only “minimal” time savings would result from consolidation.  Id. 

The court emphasized that consolidated trials might be more appropriate down the road, after the initial cases were tried.  We’ll keep you posted on that.  In the meantime, stay safe out there.