From the defense perspective, the worst thing about a mass tort is that it is so … massive.  The more the merrier?  No way. The presence of multiple plaintiffs signals to the jury that something must be wrong with the product.  Don’t believe us?  We think there is research to support our dislike of consolidation but, even beyond that, our eyes and ears don’t lie.  We’ve watched mock jurors discuss the significance of multiple plaintiffs or wonder aloud why there’s only one.

Consolidating cases involving plaintiffs who used a product at different times, under different circumstances, with different medical facts does not serve efficiency or fairness.  That’s the way we see it and that’s the way the court saw it in Rosewolf v. Merck & Co., 2022 U.S. Dist. LEXIS 142710 (N.D. Cal. Aug. 9, 2022).  Four plaintiffs brought lawsuits claiming that Singulair or its generic versions caused them to suffer neuropsychiatric injuries and that the drug labels were insufficiently informative.  The legal theories were strict liability, negligent failure to warn, negligent misrepresentation, and breach of express and implied warranties. The cases were filed as two actions, each with two plaintiffs.  The plaintiffs wanted to consolidate all four plaintiffs together in one case, while the defendant wanted to sever the cases into four separate ones.  

Federal Rule of Civil Procedure 20(a) permits joinder of plaintiffs if they assert a right to relief arising from the same transaction and occurrence and if there is a common question of fact or law.  The four plaintiffs in Rosewolf raised similar legal issues, but they took different products (only one took the branded version) at different times with different durations, different doctors, different medical histories, and varying labels.  The plaintiffs did not and could not point to any substantial right that would have been prejudiced by severance.  Accordingly, the Rosewolf court granted the defendant’s motion to sever.

Federal Rule of Civil Procedure 42(a) permits a court to consolidate actions with common questions of fact or law.  But it is a matter of discretion, and the party seeking consolidation bears the burden of demonstrating that convenience and judicial economy would be served by consolidation.  For the same reasons that severance was apprised, the Rosewolf held that consolidation was inappropriate.  Rather, the court concluded that procedures short of consolidation could be used effectively to manage the cases, such as coordinating discovery or applying legal rulings across the different cases.  It is a singularly sensible decision.  

Mindful as we have been the past few days of the sad departure of the dignified, graceful ruler of the “sceptered isle,” a quote from one of our favorite British poets, Wordsworth, captures our feeling about the outcome in Rosewolf: “how gracious, how benign is solitude.”