The Eight Circuit issued an opinion last week that highlighted again how product liability complaints with multiple plaintiffs can be susceptible to removal to federal court under CAFA (the Class Action Fairness Act of 2005), particularly if the total number of plaintiffs across the grouped complaints is at least 100. See Atwell v. Boston Scientific Corp., Slip Op. (8th Cir. Nov. 18,2013).
As a reminder, CAFA permits removal to federal court of “mass actions,” which include “any civil action . . . in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs ’ claims involve common questions of law or fact. ” 28 U.S.C. §1332(d)(11)(B)(i). In other words, there needs to be more than 100 plaintiffs and a proposal to jointly try their claims because they share fact or legal issues. On the other hand, joint pretrial proceeding don’t trigger removal under CAFA. 28 U.S.C. §1332(d)(11)(B)(ii)(IV). As a result, we more and more see plaintiffs’ lawyers at case management conferences renouncing that they are seeking joint trials or consolidation of cases for trial. They know that, if they do, they’ll receive a notice of removal the very next day.
The Atwell case is part of the transvaginal mesh litigation, and there were three separate groups of plaintiffs – the Atwell group, the Evans group and the Taylor group. Atwell, slip op. at 2-3. Each set of plaintiffs did their best to avoid removal, but couldn’t.