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.
We would all go down together!! We can’t help being reminded of the chorus of Goodnight Saigon when we think about consolidated trials in mass tort cases. Given the availability of bellwether plaintiff procedures, like we blogged about yesterday, there’s no valid reason for consolidating trials of more than one plaintiff in a tort case not involving a common accident. “[A] few test trials . . . may produce more settlements than would a lengthy and complicated trial of consolidated cases.” In re Northern Dist. of California, Dalkon Shield IUD Litigation, 693 F.2d 847, 854 (9th Cir. 1982).
No reason at all – except to prejudice the defendants.
We know it – that’s why we fight any attempt to consolidate cases for trial tooth and nail. The other side knows – that’s why they propose consolidation for trial as a “time saving” measure any chance they get, even though it’s never been shown to save any time and only creates a host of appellate issues. The courts know it – that’s why consolidation of tort cases for trial mostly seems to happen in jurisdictions with pro-plaintiff reputations, such as West Virginia (notorious for the largest consolidations), South Florida, Atlantic County, NJ, and, yes, Philadelphia, Pennsylvania.
Consolidation takes us all down together. It invites juries to decide cases on improper bases – that all these people wouldn’t be suing unless something was wrong. It confuses juries with masses of plaintiff-specific facts and invites averaged verdicts (more about that to come). It makes proper application of the state of the art defense impossible due to different plaintiffs using products at different times. For the same reason it makes exclusion of subsequent remedial measures impossible as well, since what’s “subsequent” to one plaintiff isn’t subsequent to another. And in cases where punitive damages are sought, consolidation of multiple plaintiffs into one trial is, in our view, a per se violation of Philip Morris USA v. Williams, 549 U.S. 346 (2007). More on that, too.
Consolidation’s been on our brain a bit, you might say.
That’s why we’re beyond pleased by the recent decision in Agrofollajes, S.A. v. E.I. Du Pont de Nemours & Co., ___ So.3d ___, 2010 WL 4870149 (Fla. App. Dec. 1, 2010), reversing a consolidation-tainted verdict from South Florida. Agrofollajes involved a bunch of Costa Rican fern growers who, attracted by the lush South Florida litigation climate, brought claims that Du Pont’s Benlate fungicide (a once widely-used product that’s unfortunately become a Bendectin-style “tortogen”/“litigen”) damaged their ferns. The claims of 27 different businesses – good ones, bad ones, tall ones, short ones, fat ones, skinny ones – were all consolidated into one big three-ringed circus of a trial.