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Plaintiffs like to file complaints that join multiple plaintiffs in a single action. They think that doing so gives them added leverage in settlement discussions. They think that because they know that if they get to a jury, a jury is—no matter the evidence—more likely to find in favor of the plaintiffs and against the defendant if multiple people claim to have suffered similar injuries as a result of using the defendant’s product.

In Bergman v. Johnson & Johnson, 2021 WL 5028417 (D. Minn. 2021), two plaintiffs claiming injury from pelvic mesh implants sued the manufacturer for failure to warn of the risks allegedly associated with its devices. The two plaintiffs received different devices in separate procedures performed by different doctors in different hospitals five years apart. Each plaintiff claimed to have suffered a variety of injuries, but there was only partial overlap between their alleged injuries.

The defendant moved to sever the plaintiffs’ respective claims, arguing that the claims did not meet the standard for joinder. The court granted the motion and severed the plaintiffs’ claims.

Federal Rule of Civil Procedure 20 allows plaintiffs to join in one action “if (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action.”

Although both plaintiffs claimed to have been injured by pelvic mesh products manufactured by the defendant, the Bergman court held that the plaintiffs’ claims did not “aris[e] out of the same transaction, occurrence, or series of transactions or occurrences.”

The court found that plaintiffs’ claims were “similar but not the same” given that they involved different injuries allegedly caused by different pelvic mesh products implanted in different procedures by different doctors in different hospitals at different times. The court concluded that given those differences the plaintiffs’ respective claims did “not arise from a single transaction or occurrence.” 2021 WL 5028417, at *2–3.

The court rejected the plaintiffs’ contention that “the common transaction or occurrence was the Defendants’ marketing campaign for their pelvic mesh products” because, said the court, “the marketing of medical devices is a personal, doctor-by-doctor undertaking” and the plaintiffs did not even attempt to show that the “interactions between” the defendant’s “marketing personnel” and the plaintiffs’ respective doctors “were the same.” 2021 WL 5028417, at *3.

The court might well have added that doctors evaluate warnings and select particular medical devices and drugs based on each patient’s medical history and current condition, which will never be the same in different patients. Given such necessarily individualized decision-making—which is the very basis for the learned-intermediary doctrine—it is hard to imagine any product-liability case involving prescription medical products in which the joinder of two plaintiffs’ claims is appropriate.