More plaintiffs, more money. And we don’t mean a mere linear increase. If, as Hegel said, quantitative differences ultimately become qualitative differences, in litigation that happens when going from one plaintiff to two, and certainly to several or many. When a jury sees multiple people bringing claims against a defendant, they think something’s up, where there’s smoke there’s fire, and the defendant must have done something wrong. We’ve seen mock juries deliberating the case of a single plaintiff wonder aloud why there was only one person suing (so it must not be a big deal) or speculate about the many other cases that are out there (so this defendant needs thumping). We humans look for patterns and confirmation.
But we defense hacks look for fair, case-by-case assessments. The federal rules balance these concerns in several ways. Think of how powerful evidence of other similar acts can be. It’s too easy for jurors to think that if defendants did something before, they likely did it again. Federal Rule of Evidence 404(b) strikes a balance as to when other acts evidence is admissible. Similarly, and back to our issue of multiple plaintiffs, Federal Rules of Civil Procedure 19, 20, and 21 set forth when multiple plaintiffs can be joined or should be severed.
Today’s case, Vance v. Safety-Kleen Sys., 2022 U.S. Dist. LEXIS 183125 (N.D. Texas October 6, 2022), is about severance. Twenty workers in a factory claimed that they suffered from various diseases as a result of exposure to various chemicals. The claims sounded in product liability (including failure to warn) and negligence (including failure to use safer solvents in the factory). The defendant said that that such chemicals were not present in the factory. But the threshold issue in Vance was whether the multiple plaintiffs could proceed together in one action or whether they should be severed into several cases. The defendant wanted severance, and the court agreed that such severance was appropriate under Federal Rule of Procedure 21.
First, the Vance court held that the plaintiffs’ claims did not arise out of the same series of transactions or occurrences because they alleged exposure to different products, for different exposure periods, and while the plaintiffs had different job descriptions. Some of the workers worked on the assembly line, while others were employed as electricians, drivers, repairmen, crew leaders, press operators, etc. What the defendant allegedly knew or should have known about the safety of its products varied among the twenty plaintiffs. For these reasons alone, the plaintiffs’ claims were misjoined.
Second, the Vance court held that the plaintiffs’ claims shared few common questions of fact or law because the plaintiffs worked at the factory for different lengths of time and had different levels of exposure to the products at issue. The one common fact alleged was exposure via the degreasing process, which allegedly volatilized various solvents in the air that were then breathed in by the plaintiffs But no exposure period was common to all plaintiffs. Nor were the injuries all common. Some claimed they came down with lymphoma, while others listed carcinoma, myeloma, kidney cancer, leukemia, and other diseases. The plaintiffs’ claims also required different witnesses (including experts) and different documentary proof. These differences all supported severance.
Third, the Vance court concluded that severance would not materially affect the prospect of settlement of the claims or adversely affect judicial economy. The defendant contended that severance would facilitate focused, claim-specific negotiations and mediations. Yes, there are some courts under the misimpression that settlement is easier when plaintiffs’ counsel carries the big hammer of representing multiple plaintiffs. It is as if such courts smile upon settlement via distortion. Thankfully, the Vance court was not one of those courts.
Perhaps most important was the Vance court’s recognition that severance would avoid prejudice to the defendant. The Vance court cited several other cases recognizing the danger of jury confusion arising from multiple plaintiffs alleging different periods of exposure or different proximities to exposure.
Accordingly, the Vance court severed the case into twenty distinct civil actions. Each one of those actions could undergo discovery and motion practice, and perhaps trial, that would do justice to the case’s own merits.