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We have a case going on where the plaintiff wants to preclude the use of a term found in his medical records to describe something that happened to him in the past that is highly relevant to the claims and injuries in the case.  Instead of using the actual term, which was also used in treater depositions that will be played at trial—appropriately, because the term was in the records generated by those treaters—the plaintiff wants to use a substitute term that he finds less inflammatory.  Using a different term may have at least two consequences:  1) the jury may have a misimpression about what happened to plaintiff or 2) the jury may end up hearing a substitute term that sounds even worse.  Part of plaintiff’s argument is that, by hearing the correct term from the records, the jury may infer that the injuries he sustained well before the device at issue was implanted were because he was engaged in criminal activity, which is also excludable.  We are being vague here on purpose, but you cannot always avoid using the right term just because someone listening may misinterpret it or find it too strong.

This brings us to Fed. R. Civ. P. 21, the last two sentences of which provide:  “On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.”  “Dropping” a party from a case is a surprisingly casual way for the Rules to describe “nonjoinder,” the term in the title for Rule 21.  That pales in comparison, however, to the use of “sever” to describe breaking up one case into more than one case.  Arteries, spleens, and limbs get severed.  A medical intervention that requires an incision into an organ to achieve a life-saving outcome would not be described as “severing,” which sounds far more violent and involuntary.  Federal district courts wield this authority to sever a case without any party requesting it.  Presumably, this is consistent with the exhortation in Fed. R. Civ. P. 1 that the Rules should be “construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”  That sometimes means taking a case with fourteen plaintiffs and chopping it up into fourteen cases with one plaintiff each.

That is what happened in Ellis v. Evonik Corp., No. 21-1089, 2022 U.S. Dist. LEXIS 95318 (E.D. La. May 27, 2022).  This was a single action with fourteen plaintiffs, including representatives of decedents, suing two petrochemical companies over cancer allegedly caused by the airborne release of ethylene oxide from their facility.  The decision involves more than severance, but that is that part that drew our attention.  We can dispense with the rest fairly quickly.  One of the defendants stopped operating the plant in 1999, so the two plaintiffs whose claimed exposure started after 1999 had no viable claims against the earlier defendant.  Id. at *5.  (No Conte-esque liability theory was offered up, which further supports how cockamamie an innovator liability theory is for a drug.)  The plaintiffs all filed more than a year—Louisiana’s “prescription” period, which is what the Pelican State calls statutes of limitation—after their respective diagnoses.  That meant the court analyzed the contra non valentem (“the discovery rule” in Cajun-accented Latin) and continuing tort exceptions according to the pleadings.  The results depended on the defendant and whether the case involved a living plaintiff, but the dismissals came with leave to amend.  Id. at **7-26.  Defendants also succeeded in dismissing negligence claims without prejudice and battery claims with prejudice, but failed to dismiss nuisance claims.  Id. at **26-40.

That brings us to severance, which the court raised sua sponte while the motions to dismiss were pending.  The plaintiff opposed severance, the earlier defendant took no position, and the later defendant favored severance.  Severance is decided based on the factors for joinder under Rule 20—the same transaction(s) or occurrence(s) and common questions of law or fact—plus “whether settlement or judicial economy would be promoted, whether prejudice would be averted by severance, and whether different witnesses and documentary proof are required for separate claims.”  Id. at *41.  Without deciding whether joinder was appropriate under Rule 20, the court found that each factor favored severing the case into fourteen separate cases with one plaintiff each.

First, differences in “the timing and length of each plaintiff’s alleged exposure to EtO” meant different questions about emissions from the plant, which defendant was responsible, and what they knew when.  “The distinct periods of exposure will also bear on each plaintiff’s showing of fault and causation, thereby affecting the legal viability of each plaintiff’s case.”  Id. at *43.  Second, the plaintiffs lived different distances from the plant and had different work and life patterns.  This meant questions of their exposure to EtO from the plant and exposures to “other toxins and risk factors” would differ.  Id.  Third, the analysis of whether claims were time-barred varied by plaintiff and would need to be resolved later.  Id. at **43-44.  Fourth, the evidence on causation and damages would vary significantly from case to case, especially because multiple different cancers were at issue.  Id. at **45-46.  “The highly individualized nature of these medical inquiries further persuades this Court that severance is proper.”  Id. at *46.

Last, and perhaps most important from our perspective, is this prescient statement:

[T]hese cases are clearly destined for separate trials.  Trying all fourteen cases to the same jury would be unduly prejudicial to defendants, and would pose an unacceptable risk of confusing the jury.  For instance, as one court has explained, “by trying . . . two [plaintiffs’] claims together, one plaintiff, despite a weaker case of causation, could benefit merely through association with the stronger plaintiff’s case.”  And because separate trials are inevitable, the Court finds [it is] appropriate to sever the cases at this stage, before the start of discovery.

Id. at **46-47 (internal citation omitted).  Our perspective, of course, is shaped by representing drug and device companies in serial product liability litigation.  It should be apparent how the first four factors above will typically favor severing cases with multiple plaintiffs bringing product liability claims against the makers of prescription medical products, especially if “exposure” is translated to “dose and duration” of use in a drug case.  While severance is important, particularly in the context of addressing misjoinder of parties to defeat diversity, multi-plaintiff trials are probably more of a problem these days.  With the explosion of MDLs and other coordinated proceedings, the plaintiffs and some judges often suggest that such trials are necessary to work through the case, provide information for settlement evaluation, etc.  Even non-MDL federal district courts receiving a number of cases transferred from an MDL may feel compelled to go this route.  The Ellis court was right to spot that the inevitable confusion and likely bootstrapping that go on with multi-plaintiff trials tend to be prejudicial to the defendants.  The more plaintiffs and greater differences there are between their claims, the greater the risk of prejudice to the defendants.  Absent very unusual circumstances, considerations of efficiency for the court or deference to how the plaintiffs chose to proceed as a pack should not be convincing reasons for multi-plaintiff trials.