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 much different from Eghnayem v. Boston Scientific Corp., 873 F.3d 1304 (11th Cir. 2017), about which we blogged, here.

More generally, both of those cases, as well as the course of the Pinnacle Hip litigation described in several of our prior posts as well as in In re Depuy Orthopaedics, Inc., 870 F.3d 345 (5th Cir. 2017) (“Pinnacle Hip”) (which we discussed, here), illustrate an adverse trend in MDLs.  That trend is to replace the traditional (if anything in MDL practice can be called traditional) bellwether trials with consolidated multi-plaintiff trials including allegations of punitive damages.  We’ve already expressed our jaundiced view towards consolidated product liability trials as inherently prejudicial against defendants, for a variety of reasons discussed in that post.  For obvious reasons, facing punitive damages is likewise not favorable to a defendant in a trial.

As our prior consolidation post discussed at some length, defendants saddled with consolidated trials in personal injury cases used to have reason to expect appellate relief.  Identical or nearly identical verdicts were considered evidence that the jury was either unable to keep multiple individual cases straight or overwhelmed by all the factual evidence, or both.  However, the recent Campbell decision, added to other recent events, makes us believe that the ability to obtain such relief has never been more questionable.

Hence, we offer an idea that has been percolating here ever since the decision in Pinnacle Hip.  We mentioned it at last December’s ACI Drug and Medical Device Litigation conference, and it was received as a good idea by most defense counsel we talked to, so here goes….

Only you can prevent multi-plaintiff consolidated punitive damages trials.

We recognize that such trials cannot always be prevented – this idea wouldn’t have worked in Campbell, for example − but MDL defendants should seriously consider limiting their so-called “Lexecon waivers,” to the extent they are willing to give them at all.

What does that mean?

Basically, Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998), held that MDL judges can’t try cases transferred to them from another judicial district under the MDL statute, 28 U.S.C. §1407.  They can try cases properly filed in the same judicial district and then transferred to them as related cases (what happened in Campbell), but all other MDL trials require a Lexecon waiver of trial in the original transferor court.

The Fifth Circuit made clear in the Pinnacle Hip decision that a Lexecon waiver, like any other waiver, must be “clear and unambiguous” to be effective. Id. at 351.  Thus, we think it would be a good idea for MDL defendants to tailor any future Lexecon waivers so that they apply only to single-plaintiff trials, and exclude punitive damages.  As for consolidation, a Lexecon waiver excluding consolidation simply preserves the manner in which cases have been tried, including MDL bellwethers, for decades or longer.  As for punitive damages, bifurcating out such allegations has been commonplace in asbestos litigation, and has been employed in other mass torts as well, such as opt out cases in the Diet Drug litigation.

Even if courts seem less inclined to recognize it, everyone on the defense side knows how prejudicial multi-plaintiff consolidations and punitive damages allegations are during trials. To the extent possible, defendants should consider self-help, in the form of limited Lexecon waivers, to prevent such prejudicial procedures.

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 time we commented briefly on the uncertainty that accompanies remand. That decision was a positive post-remand development. Today’s decision is the flip side. Remand gone awry and unfortunately, affirmed by the Eleventh Circuit.

The decision is captioned Eghnayem v. Boston Scientific Corporation, 2017 U.S. App. LEXIS 20432 (11th Cir. Oct. 19, 2017) and is actually a consolidation of four plaintiffs’ cases. The cases all involve Florida residents and were consolidated and remanded from the MDL in the Southern District of West Virginia to the Southern District of Florida. Id. at *3. The remand court proceeded to try the 4 cases together over defendant’s objection. After almost identical multi-million dollar verdicts were entered for each plaintiff, defendant appealed.

The primary grounds on appeal were the improper consolidation of the cases for trial and the exclusion of evidence of FDA clearance. The Eleventh Circuit said both decisions by the district court were not an abuse of discretion. Interestingly while the court found limiting instructions were sufficient to overcome the prejudice of the multi-plaintiff trial, it also found that limiting instructions would not have cured the prejudice that would have resulted if the FDA clearance had been admitted into evidence. That’s a bit of plaintiffs getting to have their cake and eat it too.

We posit there is only one reason for consolidating trials of more than one plaintiff in a tort case not involving a common accident – to prejudice defendants. Plaintiffs argue consolidation saves time, but is there any proof to back that up? It certainly creates a host of appellate issues that clearly take more time. Plaintiffs in Eghnayem offered testimony from 25 witnesses at trial. Largely, testimony of individual plaintiffs and their individual physicians which have no relevance to the claims of the other plaintiffs. Id. at *7. Testimony that confuses juries with different plaintiff-specific facts and frankly invites juries to reach improper conclusions, such as all these people wouldn’t be suing unless something was wrong.

Defendant, of course, raised all these prejudicial concerns which the trial court and the appellate court believed could be swept away by “expressly instruct[ing the jury] to consider each plaintiff’s claims separately.” Id. at *12. How exactly a juror is supposed to do that is unknown and feels almost impossible. But the appellate court went even further and presumed that “even had the cases not been consolidated, the plaintiffs would likely have been able to submit evidence of other patients with similar injuries.” Id. at *15. Evidence of adverse events or clinical trial events may be admissible as to notice – but in a severely more limited way than when 4 distinct claims and injuries are litigated fully to the same jurors.

For example, one plaintiff had “graphic images” showing her removed mesh and the tissue that was removed along with it. The Eleventh Circuit concluded that sometimes graphic evidence is particularly helpful. Id. at *17-18. And it might well be – for that particular plaintiff. But to conclude that those images would have been admissible as to the other 3 plaintiffs borders on inconceivable.

What about evidence that post-dated some of the plaintiffs’ implantations. Where drug or device usage occurred at varying times, one of the many problems of consolidation is that defendants are deprived of the state of the art defense and exposed to improper admission of subsequent remedial measures. The result is a “perfect” plaintiff’s case being tried, with all plaintiffs able to rely on all evidence relevant to anybody, regardless of differences in time and place. The Eleventh Circuit agreed with defendant that post-implant evidence couldn’t go to notice in those cases, but it may be relevant for some other reason and therefore, limiting instructions over exclusion was the proper course. Id. at *19. But it is a course that wouldn’t be necessary if the cases were tried individually.

Finally, defendants argued that the similarity in the damage awards – almost identical – is evidence that the jury was confused; unable to distinguish between and among the plaintiffs. Given plaintiffs with “different medical histories, and different treating doctors; . . . prescribed the [mesh] at different times for different conditions; and claimed to suffer different injuries, after different lengths of exposure, resulting in different treatment courses,” id. at *6-7, the uniform result isn’t a mystery, it’s juror confusion leading to a formulaic verdict. The appellate court, however, found that “similar” injuries resulting in “similar” verdicts wasn’t unreasonable. Id. at *14. But that’s just buying into the flawed premise that these claims were similar enough to try together in the first place. With that as the starting place, it is no wonder the Eleventh Circuit found no abuse of discretion.

This case highlights several of the key reasons drug and device defendants fight against consolidated trials. If you want a more in depth discussion of the topic, including cites to rulings that agree with us, check out our post here.

There was one other significant issue on appeal. The district court excluded all evidence of the device’s 510k FDA clearance. This isn’t the first mesh case to reach this conclusion. See our post on the issue here discussing a post-remand case that made a better call by allowing the evidence albeit with a strong limiting instruction. While not perfect, that decision is certainly better than the Eleventh Circuit finding that 510k clearance “has no relevance to the state law claims.” Id. at *22. Or its decision that admitting the evidence would have been unnecessarily time-consuming and led to jury confusion on core issues. Id. at *23. We would disagree with those conclusions anyway but find them particular hard to swallow where the same court concluded that a multi-plaintiff trial wasn’t unduly prejudicial or confusing. We are in fact confused as to how a jury instruction regarding what the 510k process is and is not would not be curative, but a limiting instruction that the jury “may not even consider the fact that there’s more than one case being brought” alleviates the myriad of prejudices a multi-plaintiff trial visits upon defendants.

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 long-term disability.  It doesn’t prevent one from making a living.  Thus, Risperdal litigation is a prime example of low-value cases that only exist because of the mass-tort system that has saddled the country for so long.

Thus, it is hardly surprising that Risperdal cases are on the front lines of the battle to rein in our long national mass-tort nightmare.

Just last week we learned of these two decisions:

(1) Covington v. Janssen Pharmaceuticals, Inc., 2017 WL 3433611 (E.D. Mo. Aug. 10, 2017).  Covington was one of the ridiculously misjoined multi-plaintiff complaints that mashed together residents from all over the country.  Before Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) (“BMS”), Missouri federal courts routinely remanded these atrocities to the St. Louis litigation cesspool because there was always at least one diversity-destroying non-Missouri plaintiff, as well as one jurisdiction establishing Missouri plaintiff in the bunch.  Covington, 2017 WL 3433611, at *2 (“Historically − and especially in this district − courts generally have addressed subject matter jurisdiction first”).

Not anymore.

Covington is typical of the multi-plaintiff complaint genre – 54 plaintiffs from 26 different states.  2017 WL 3433611, at *1.  “Only one plaintiff” alleged injury from use of the drug “in the state of Missouri.  Id.  As for the rest:

The Non-Missouri plaintiffs, or those who do not have any connection to the state of Missouri, do not allege that they were prescribed Risperdal or any of its variants in Missouri, ingested the same in Missouri, or were injured in Missouri.


With BMS, the personal jurisdiction issues involving litigation tourism of this sort were largely resolved.  With no fixed “jurisdiction hierarchy,” it was now logical to take up this “more straightforward issue first. ” Id. at *2.

However, these [contrary] cases were decided before [BMS] and State ex rel. Norfolk S. Ry. Co. v. Dolan, 512 S.W.3d 41 (Mo. 2017) (en banc) [our post on Dolan is here].  These decisions make the personal jurisdiction issue in this case much easier to decide. . . .  Further, analyzing the challenge to personal jurisdiction first avoids any issues relating to fraudulent joinder.  Personal jurisdiction is now the more straightforward inquiry and should be addressed first as it is in the interests of judicial economy and expeditiousness.

Id. (citations and quotation marks omitted).

The personal jurisdiction question was easy.  There could be no general jurisdiction.  “[N]o defendant is incorporated in Missouri nor has its principal place of business in Missouri.”  Id. at *4.  ‘Nuff said.  Nor was there specific personal jurisdiction for all but one of the plaintiffs – thus removing the planted plaintiffs from the defendants’ home states.

[B]esides the Missouri plaintiff, no other plaintiff allege that they, or a child or incapacitated person whom they represent as next friend, were prescribed or purchased Risperdal in this state, suffered an injury from Risperdal in this state, or received treatment for an injury from Risperdal in this state.

Id.  The “mere fact that other plaintiffs were prescribed, obtained, and ingested [the drug in Missouri] − and allegedly sustained the same injuries as did the nonresidents − does not allow the State to assert specific jurisdiction over the nonresidents’ claims.”  Id. at *4 (quoting BMS).  Thus 53 of the 54 plaintiffs were dismissed (without prejudice, and with the laws of their home states determining whether an unsuccessful litigation tourism jaunt tolled their statutes of limitations).  A single plaintiff’s low-value case thus remained in Missouri federal court.  Id. at *5.  It probably won’t last long, since the March 8, 2017 filing date was more than a dozen years after 2004, when that plaintiff admits discovering the supposed injury.  Id. at *6.

Plaintiffs mounted unsuccessful rearguard actions in Covington.  They sought a stay – claiming “prejudice” from the need to sort out a supposed jurisdictional morass that they, themselves, created.  That went nowhere.  Id. at *3 (“A motion to stay should not be abused by a party to dictate which motion is first addressed by the Court.”).  They also sought “jurisdictional discovery” – a fishing expedition to search for Risperdal/Missouri contacts.  Covington likewise saw that request for what it was:

Here, the plaintiffs do not plead any specific facts that support their contention that this Court has personal jurisdiction over all of the plaintiffs’ claims. Alleging that facts might be discovered during a jurisdictional discovery expedition will not allow plaintiffs to survive a 12(b)(2) motion to dismiss.

Id. at *5.

Summing up, Covington observed:

Unfortunately for the plaintiffs, [BMS], under the facts of this case, made personal jurisdiction the more straightforward issue and therefore more proper to be analyzed first.  Further, [BMS] held that forums, like Missouri in this action, do not have specific personal jurisdiction over non-resident corporations when the plaintiffs do not allege any specific connection between the forum and the specific claims at issue.

Neither this Court nor the state court in which this action was removed can exercise personal jurisdiction − whether general or specific − over the defendants for the claims brought by the 53 non-Missouri plaintiffs.

Id. at *6.

That’s one.

(2) West v. Janssen Pharmaceuticals, Inc., 2017 U.S. Dist. Lexis 124276 (Mag. M.D. Ala. Aug. 4, 2017).  West is something of the obverse of Covington.  In Covington the plaintiffs joined together in an attempt to manufacture jurisdiction for a horde of weak cases, whereas in West, jurisdiction already existed, so the plaintiffs were trying to join their weak cases together to prejudice the defendant at trial.  Once again, the court wasn’t buying the consolidation.  West involved two plaintiffs, Harper and West, treated at one point by the same prescribing physician, both alleging the same injury from the same drug.  Id. at *2, 11.

But that was as far as the similarities went.

The two plaintiffs were of much different ages; one a minor, the other not. One involved off-label use; the other not.  One involved innovator liability (being filed during the few Weeks window when that theory was allowed in Alabama); the other not.  There were various other differences as well, such as duration of use, and when the drug was prescribed (affecting the relevant warnings), and the age at which the risk allegedly manifested.  Id. at *13-15.

The dissimilarities in the Plaintiffs’ claims have be-come more apparent as discovery and expert testimony have developed.  Harper began taking Risperdal as a five or six-year old and was always a minor while taking the medication.  In contrast, West did not begin taking the medication until he was almost eighteen years old and was physiologically an adult.  The significance of this difference is highlighted by the expert causation testimony. . . .  Further, the consequence of Risperdal not being approved for pediatric use takes on a much different meaning in the two cases.

Id. at *12-13.

These differences precluded a joint trial under Fed. R. Civ. P. 20.  “The critical differences between the claims asserted by Plaintiffs outweigh the similarities between the cases, and the court finds trying the cases together would thus be inefficient and confusing for both the Court and the jury.”  Id. at *14.  The presence of an innovator liability claim in one of the cases demonstrated their legal as well as factual disparity.  Id. at *15-16.  Further, “West and Harper were prescribed multiple prescriptions, written at different times by different physicians and in different doses at different physiological stages of their lives.”  Id. at *16.

Thus, two disparate plaintiffs could not claim injury “from the same series of transactions” as required by Rule 20. Id. at *17.  No consolidation synergies for these two weak cases.

*          *          *          *

Two Risperdal cases; two different jurisdictions; two attempts by plaintiffs to manipulate joinder to the disadvantage of defendants defeated.  We look forward to similar rulings in the future.



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).

Continue Reading Further Deconstruction of the Law in Pelvic Mesh

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 on Mullins.  We’ve already blogged on consolidation.  We’ve already blogged about Restatement (Second) of Torts §402A, comment k (1965).  We’ve also blogged about the appropriate application of Erie principlesMullins implicates all of these issues.  We’d like to say more, but our obligations to our clients must take precedence.

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).

Continue Reading Considering Consolidating Cases for Trial

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.

Continue Reading Consolidation Fails In Aredia/Zometa

We all know how easy it is to complain about bad decisions. Right now, sports pundits and fans are holding a gripeathon about the National Football League ‘s replacement referees. There has been more talk about the officiating mistakes than about the athletic performances. A sense of perspective is in order.  The comparison baseline is not perfection. It is not as if the regular referees got all their calls right. Does anybody remember Ed Hochuli (actually a very good ref who is also a Phoenix attorney) incorrectly calling a deadball?  And who stared at the Steelers-Seahawks Super Bowl in disbelief a couple of years ago, as every call of consequence went against Seattle? Still, there is no denying that the replacement refs have authored an amazing number of egregious errors already in only three weeks of football. The blown call at the end of the Monday night game (it benefitted the Seahawks, so some are saying Karma is at work, though it is hard to see why Karma would hose the Packers) is prompting some fans to call for a boycott. If either Obama or Romney could step up and do something about the referee lockout, he’d probably help his election campaign big time. He would certainly get Wisconsin’s electoral votes.

One of the most interesting things about the replacement referee situation is the substitute teacher syndrome. Did you ever have a substitute teacher in elementary school who seemed sort of weak or clueless?  Wouldn’t the class end up becoming incredibly disruptive? Even the kids who were ordinarily well-behaved started acting like delinquents. We remember back in seventh grade one of the star students hoodwinking a substitute teacher into thinking that his name was Billy Paul. Billy Paul was an R&B singer .  More specifically, he was a practitioner of  TSOP -The Sound of Philadelphia. Billy Paul’s big hit was “Me and Mrs. Jones.” The teacher was puzzled at how the rest of us howled in laughter when she would scream in exasperation, “Billy Paul, get back in your seat!” “Billy Paul, you leave that girl alone!”  After NFL week one, it seemed that many players had sized up the replacement refs as being like bad substitute teachers — tentative and insecure.  Just like ‘Billy Paul,’ the players took advantage.  By ‘took advantage,’ we mean that the players started perpetrating all sorts of mayhem on their opponents.  Things got chippy.  One especially devious Ram delivered a nasty shot to a Redskins receiver after a play was over.  The aggrieved receiver responded by throwing the ball at the offender.   Bad idea.  As so often happens, the ref saw the reaction, not the instigation.  The receiver drew a penalty and backed his team up.  The team’s field goal attempt missed.  Game over.    

The substitute teacher syndrome is like the “broken glass” theory of policing. One of the most brilliant minds on governance and policing was James Q. Wilson, who died earlier this year. Some of us were lucky enough to take classes with Wilson, who was a dynamic speaker with an even more dynamic mind.  Some labeled Wilson a neocon, but he was really a policy skeptic.  He was a political scientist who liked to get his fingernails dirty with data.  He wrote about groundbreaking analyses of poverty and bureaucracy.  With all that, he was most famous for his writings on crime.  Wilson was brilliant on that topic, and he managed to make a difference.  Wilson wondered why people commit crimes.  Crime is a disease in the body politic.  It is an odd disease, because it is a product of human choice.  Most people do not choose crime.  Some do, they do so repeatedly, and they betray the social contract.  Wilson found that people are far more likely to make that destructive choice if they are in an environment that welcomes destruction.  If a window was broken in a neighborhood, and was not repaired, that appearance of disorder sent a message that disorder was okay. Crime rates would be higher in such areas. Wilson recommended that cops arrest people for quality-of-life crimes (disorderly conduct, etc.) and help create an appearance of order in the community. That approach, plus a relentless use of statistics (CrimeStat), seemed to play a significant role in reducing crime rates in American cities.  (Yes, we know there are other theories about that as well, including the controversial Freakonomics argument that increasing abortions led to decreasing crime.  We are not touching that one.) 

We wonder whether the substitute teacher or broken glass theory applies to litigation. If courts permit sloppy, absurd practices, they ineluctably invite more. Our home turf, the Philadelphia Court of Common Please, has been taking a beating for its pro-plaintiff, anti-business court system. We do not agree with all of the criticisms, but it is undeniable that when a judge explicitly invites plaintiffs to engage in litigation tourism, when the court as a matter of course makes nutty venue/forum non conveniens rulings, and when it allows plaintiff lawyers to cobble together multi-plaintiff cases that maximize prejudice against corporate defendants — well, as Wilson showed, chaos begets chaos.  Pretty soon, Philadelphia’s City Hall (which houses the Court of Common Pleas civil cases) rang out a clickety-clack of cowboy boots, and if you yelled  ”Roll Tide!” in the hallways, you’d probably get at least a couple of high-fives.  Nevertheless, as an article in Monday’s Wall Street Journal showed, there’s a new sheriff in town.  Judge Herron has implemented many changes in the Philly courts, including a rule against consolidating plaintiffs in tort cases.  That is a welcome reform and it is a big deal.  We get how plaintiffs are supposed to be the master of the complaint, but the plaintiff lawyer is not supposed to be the master of the court docket.  When plaintiff lawyers self-consolidate multiple plaintiffs into a tort action, they create an artificial case with a perfect plaintiff who gets in every piece of corporate conduct and other evidence — an array of awfulness that would not come in with a single plaintiff.  It stacks the deck and is unfair to defendants.  It is also unfair to the courts.  The consolidated cases are not only a method of beating defendants into settlements, they are also a method of beating the court out of the extra filing fees for separately filing plaintiff.  Courts are noticing all this.

So today’s post is not a complaint at all.  Instead, we celebrate how courts are starting to get things right on joinder and severance issues.  Philly has taken a step in the right direction.  Other courts are taking similar steps.  We offer a tip of the cyber cap to Mike Imbroscio for sending us a recent severance victory in the Accutane MDL.  The particular case is called Aranda v. Hoffman-Laroche, Inc., No. 8:12-cv-1426-T-30TBM (M.D. Fla. Sept. 20, 2012), and we have written about it before.  It has, to say the least, a peculiar history.  The case was originally filed on behalf of 69 plaintiffs alleging injuries from Accutane.  It was filed in a state court with a hellholish reputation as bad as Philly.  But after a little fact-checking made clear that the plaintiffs’ effort to stymie diversity was phony, the case ended up in federal court.  Post MDL, the defendant moved to sever the plaintiffs.  In a refreshing and straightforward opinion, the court granted the motion and severed the cases.

First, the plaintiffs’ joinder was flat-out inappropriate under Fed. R. Civ. P. 20(a).  The plaintiffs resided in different states, allegedly ingested Accutane at different times, and were allegedly diagnosed with different adverse reactions to Accutane.  (Note the word “allegedly.”  Based on the discovery provided by the plaintiffs, their Accutane use and adverse reactions was by no means established.)    Thus, the plaintiffs’ claims did not arise “out of the same transaction, occurrence, or series of transactions or occurrences.”  Fed. R. Civ. P. 20(a).  There were different Accutane warnings at different times, which would necessarily have a profound effect on liability issues, and could potentially confuse juries confronted with multiple plaintiffs.  Second, the Aranda court emphasized that “[m]any federal courts hold that product liability cases are generally inappropriate for multi-plaintiff joinder because such cases involve highly individualized facts and ‘[l]iability, causation, and damages will … be different with each individual plaintiff.'” Aranda, slip op. at 1, quoting In re Prempro Prods. Liab. Litig., 417 F. Supp. 2d 1048, 1059-60 (E.D. Ark. 2006).  The Aranda court also cites supporting precedent from the Silica, Diet Drug, Baycol, and Rezulin litigations.   Third, the cobbling together of different plaintiffs with different claims and, no matter how much the plaintiff lawyers pretend otherwise, different legal theories, would “likely hamper the orderly, efficient, and expeditious handling of the plaintiffs’ claims as the litigation progresses.”  Tesfaye Abebe v. Takeda Pharmaceuticals (In re Actos Prod. Liab. Litig.), No. 6:11-md-02299 (W.D. La. May 3, 2012  The motion to sever in Aranda was brought under Rule 21, which relates to misjoinder of parties.  That rule makes clear that severance can be granted “[o]n motion or on its own, the court may at any time, on just terms add or drop a party.”  Fed. R. Civ. P. 21.  The Aranda court cited both Rule 21 “and the Court’s inherent authority to control its own docket.”  Aranda, slip op. at 2.   Fourth, the court ordered that each “severed plaintiff shall also pay a filing fee to the Clerk of the Court.”  Id. At 3.  For some plaintiff lawyers, that last bit hurts the most.    


The Aranda severance adds to a growing list of courts that are putting a stop to improper mass tort self-consolidations.  As we said earlier, it is easy to complain about bad decisions.  It turns out that it is even easier to praise good ones.       

There’s an awful lot of consolidated treatment of product liability cases these days.  So when the plaintiffs in Jones v. Wright Medical Technology, No. 11-14432 (E.D. MI. June 19, 2012), argued that their case should be consolidated (under FRCP 42(a) and a local rule) with another that involved a “similar defect in the identically defective medical device, installed by the same surgeon at the same hospital, within a very short time of each other,” we half-expected the court to go along.
But, lo and behold, it didn’t.  While the plaintiffs focused on a few similarities, the defendant pointed out the important differences:
Two different Plaintiffs, with different lifestyles, different ages, different heights and weights, implanted with two different products, with alleged injuries occurring nearly 1.5 years apart, in different states, treated by different doctors, in different hospitals.  The evidence at trial will be vastly different.
Slip op. at 4-5.  Also, the Jones case had a loss of consortium plaintiff, while the other case did not.  The Court was swayed by these differences:
Here, the allegations are that two different devices, manufactured in different lots, broke in different ways. . . . Proving these claims will not require substantially similar evidence.  It will require different evidence.  (Likewise, proving the loss of consortium claims of Mrs. Jones will require establishing a set of facts wholly distinct from those relevant to the [plaintiff in the other case]).
Slip op. at 6 (quotation marks omitted). 
These evidentiary differences are important in litigations and trials.  They are often the difference between defeat and victory.  As we all know, it matters that the product is different, that the plaintiffs are vastly different, that their injuries and circumstances are different. 
Sure, plaintiffs want to consolidate the cases nonetheless.  It will cut their costs and create an atmosphere that blurs the differences and hides the detail.  For discovery, it usually means more.  For trial, it means that evidence that isn’t admissible against one plaintiff comes in anyway because it’s admissible against the other.  Juries may reach a verdict for one plaintiff based on evidence relevant only to the other.  And juries are more likely to feel something must have been wrong because more than one person is complaining.  And so the risk of undue prejudice to the defendant rises along with the chances of a plaintiff victory.  We’ve posted about these problems before.  
Possibly most important, the very existence of a consolidated proceeding encourages more cases.  “People will come, Ray.  People will most definitely come.”  And so the point at which there are just a few cases and consolidation is requested can be critical.  It can mean the difference between a few generally unrelated cases and a consolidated docket-full of cases.  If you build it, they will come.  And suddenly something that never really was, and never should have been, is created. 

Or instead, like here, the court spots the differences and nips it in the bud.

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.

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