We’ve seen the latest affirmance of largely identical verdicts in a consolidated MDL trial in Campbell v. Boston Scientific Corp., ___ F.3d ___, 2018 WL 732371 (4th Cir. Feb. 6, 2018). We’re not discussing Campbell’s merits today. For present purposes, suffice it to say that the consolidation- and punitive damages-related rulings aren’t that
This post is from the non-Reed Smith side of the blog.
Looking back on the blog, the last time we posted about the Pelvic Mesh MDL was this summer when we lauded a remand judge for not allowing plaintiffs to expand their expert reports to include opinions already excluded by the MDL judge. At that…
Risperdal, an antipsychotic drug prescribed to treat serious mental conditions – schizophrenia, manic depression, and autism – allegedly causes some male users to develop abnormal breast tissue growth. Particularly when compared to the consequences of the conditions Risperdal is indicated to treat, that seems like a relatively minor risk. It isn’t fatal. It isn’t a…
This post is from the non-Reed Smith side of the blog.
In the latest decision from the Pelvic Mesh MDL, the court ordered a consolidated trial of no fewer than thirty-seven plaintiffs with nothing in common save claiming injury from the same product. See Mullins v. Ethicon, Inc., C.A. No. 2:12-cv-02952, slip op. (S.D.W. Va. Aug. 4, 2015). The consolidation is an attempt at a Rule 23(c)(4) single-issue class certification without the class action – since class actions are never certified anymore in personal injury prescription medical product litigation (as demonstrated here). To reach the same procedural result, Mullins limits consolidation to defect/breach of duty and “general causation”:
[T]he consolidated trial will only involve . . . issues concerning the design of the [defendant’s mesh] and whether that design was reasonably safe. Determining reasonable safeness necessarily involves consideration of the [product’s] capability to cause injury. As a result, causation will be relevant to the consolidated trial but only in the general sense. In other words, the pertinent issue will be whether the [product] can cause injury (general causation), not whether it did in fact cause injury to a particular plaintiff (specific causation).
Mullins, slip op. at 5 (citation omitted).
Yes, we’re well aware of the latest development in the Pelvic Mesh MDL. See Mullins v. Ethicon, Inc., C.A. No. 2:12-cv-02952, slip op. (S.D.W. Va. Aug. 4, 2015). However, due to Reed Smith’s Pelvic Mesh representations, we’re constrained in what we can say. We’ll just have to let prior, non-Mesh posts speak for us…
We have managed to pretty much avoid asbestos litigation. Sure, we encounter decisions from asbestos cases that sometimes impact our own cases.
They even sometimes appear in our posts, but rarely as a focus. We have been less successful in avoiding consolidation of drug and device cases for trial. Some courts that tend to favor multi-plaintiff trials are informed by experience from asbestos litigation. Plaintiff lawyers, informed by whatever past experience makes them think there is a route to bigger verdicts and bigger settlements, often favor consolidating cases for trial. To us, the plaintiff preference seems driven by the prospect of a jury being more sympathetic to several plaintiff themes when there are multiple injured plaintiffs in front of them throughout trial, especially if having a sicker plaintiff in the mix will drive up damages for the rest. Plus, notwithstanding limiting instructions, the breadth of liability evidence tends to expand with each plaintiff. Meanwhile, courts seem to mostly consider their dockets, accepting as given that trying cases together will get the number of pending cases down faster than would trying cases individually. We had a case sent our way on consolidation in asbestos litigation and, given a combination of a paucity of blogworthy cases, our interest in the subject, and an impending vacation, we decided to post on it.
From In re: New York City Asbestos Litig., No. 190411/13, 2015 N.Y. Misc. LEXIS 2634 (N.Y. Sup. Ct., N.Y. Cty., July 24, 2015), we learned that there is a pretty developed law governing whether to consolidate asbestos cases for trial. Without really digging in, we would say that it is more developed and detailed than the law on consolidating drug or device cases for trial and offers some principles that might work fairly well for our cases. NYCAL—that is what we will call it—concerned whether to put together two plaintiffs in each of two trials based on six factors identified in Malcolm v. National Gypsum Co., 995 F.2d 346, 350-53 (2d Cir. 1993). Not all the Malcolm factors will have a direct parallel to drug or device cases, but they are a good start: 1) common or similar worksite, 2) similar occupations, 3) same exposure period, 4) same disease, 5) living or dead plaintiffs, and 6) extent of overlap between defendants. Beyond the enumerated factors, though, the court should consider both judicial economy and the “paramount concern for a fair and impartial trial.” 2015 N.Y. Misc. LEXIS 2634, *9 (citation omitted). In a well-expressed quote from another asbestos case, “The systemic urge to aggregate litigation must not be allowed to trump our dedication to individual justice, and we must take care that each individual plaintiff s – and defendant’s – cause not be lost in the shadow of a towering mass litigation.” Id. (citation omitted).
We’ve blogged several times in opposition to consolidation of individual plaintiffs’ lawsuits in product liability actions. The only thing that plaintiffs seeking consolidation for trial have in common is that: (1) they were allegedly injured by the same product, and (2) they are trying to salvage weak cases by attempting to prejudice the defendants’ defense. Strong plaintiffs’ cases stand on their own, so why bother with consolidation?
One thing we know about mass torts, through years of experience, is that for lots of reasons most individual cases in any given mass tort are poor, as in weak. So consolidation requests show up frequently in mass torts. One of the busiest mass torts currently is Aredia/Zometa, so it’s no surprise to find consolidation attempts there. The only question is whether the courts will throw these plaintiffs the lifeline they’re seeking. Happily, that doesn’t seem to be happening.
The first consolidation attempt, in Guenther v. Novartis Pharmaceutical Corp., 2012 WL 5398219 (Mag. M.D. Fla. Oct. 12, 2012), adopted 2012 WL 5305995 (M.D. Fla. Oct. 29, 2012), failed because the two plaintiffs involved “filed their claims separately years apart, did not use the same [defendant’s] products, allegedly used [those] products at different times, have different medical and dental histories, were treated by different physicians, have identified different expert witnesses . . ., are pursuing different legal theories under different laws, and seek different damages.” Id. at *1. That’s pretty typical of attempted consolidations.
Sorry about not posting anything yesterday. What can we say? We got busy.
We’re still busy today, but we can’t leave our readers in the lurch twice in a row.
We’ve railed about the unfairness of consolidated trials – that is, where a court forces a defendant to trial against a motley crew of plaintiffs with nothing in common save claims that they were injured by the same product – at length before. We’re content with that post stating all the many policy and practical reasons why such consolidations are prejudicial to the defense of cases (which is why plaintiffs seek them and some courts allow them), difficult for jurors to make sense of, and otherwise a bad idea.
In that vein we applaud the decision in Johnson v. Advanced Bionics, slip op., 2011 WL 1323883 (W.D. Tenn. Apr. 4, 2011), which ordered the severance of two previously joined cases for trial. If, as in Johnson, it’s improper to try two same-device cases together, then it’s even worse to mash three, five, or even ten different plaintiffs’ cases into the same three-ringed circus of a trial.
Both the plaintiffs (a “Johnson” group and a “Purchase” (that’s the plaintiff’s last name) group) claimed to be injured by the defendant’s cochlear (that’s part of the inner ear) implants. There was a recall, and predictably enough suits were filed. Both plaintiffs had been implanted with the same implant not quite 18 months apart by different doctors in different hospitals. The failure of each implant was investigated by the defendant and blamed on the same (recalled) component, which allegedly let moisture into what was supposed to be a watertight product. 2011 WL 1323883, at *2.