Regular blog readers may recall that, every year, we eagerly await a Monday and Tuesday right around February 14th.  This has nothing to do with Valentine’s Day (though we like a dozen roses and a box of chocolates as much as the next person.)  No, at this time every year (for the past eighteen or so) we cross our fingers that there is no blizzard, beg everyone in our work life to cover any emergencies, and head to New York for the Westminster Kennel Club Dog Show.  This year was the 141st annual show, and, as always, it was a mecca for all things dog.  As we ate breakfast in our hotel, we were visited by Mobius, a red Doberman so tall he had to lean down to attempt to taste our complimentary make-it-ourselves waffle.  To board the shuttle from the Hotel Pennsylvania (worthy of its own post) to Piers 92 and 94 for the daytime breed judging, we had to step over “Sky,” a 140-pound Greater Swiss Mountain Dog sprawled in the aisle of the bus, calmly oblivious to accidental bumps and kicks and happily kissing anyone who asked.  We live for this stuff, even if our chosen favorite almost never wins.

For the atmosphere is rarified. A few years ago, the show stopped being “champions only” and admitted “class dogs” – dogs still working their way through point-earning breed classes to achieve their championships – for the first time.  But, save for the infrequent upset, the group competition (the televised portion, in which the single winner of each breed competes against the winners from the other breeds in its “group” – sporting, herding, toy, etc.) is dominated by the very top-winning show dogs in the country.  Last year, we fell in love with a gorgeous German Shepherd Dog named Rumor.  She was a heavy favorite to win it all (“Best in Show”), but was upset by C.J. the German Shorthaired Pointer and settled for Reserve Best – second place.  And she retired, to raise beautiful puppies and live the life of a cherished house pet.

But, alas, said puppies did not get made on the first attempt. And, come January, Rumor’s owner/handler decided to give her one more shot at the big one.  So she “came back out,” showed at ten shows in January, and took one more run at the Garden.  And, this time, after upsetting the favorite, Preston the Puli, to take the Herding Group, she won it all.  It was very, very cool to witness.  And we already can’t wait ‘til next year.

And there was a blog-worthy lesson to be gleaned from it all (at least if you stretch a little): if you haven’t achieved everything you want, think about taking another shot.  And H.R. 985, a bill that passed the House Judiciary Committee this week, would pick up where CAFA left off (and then some) to correct still-rampant abuse of the system by class action and MDL plaintiff lawyers, to the detriment of our clients, the judicial system as a whole, and all too often, to the plaintiffs the lawyers ostensibly represent.

Under “Purposes,” the bill states: “The purposes of this act are to – (1) assure fair and prompt recoveries for class members and multidistrict litigation plaintiffs with legitimate claims; (2) diminish abuses in class action and mass tort litigation that are undermining the integrity of the U.S. legal system; and (3) restore the intent of the framers of the United States Constitution by ensuring Federal court consideration of interstate controversies of national importance consistent with diversity jurisdiction principles.”  Worthy goals all, if a trifle ambitious. The bill’s key points read like a set of nesting boxes – just when you think you’ve opened the last, there is another present inside.  Here are some highlights:

Class Actions

  • Injury allegations: this provision requires a court to deny certification unless “the party seeking to maintain such a class action affirmatively demonstrates that each proposed class member suffered the same type and scope of injury as the named class representative.” This is ascertainability something for which we’ve advocated, and also something that our side tried unsuccessfully to get fixed through the Federal Rules Committee. Thus, the judiciary had its chance to fix this. Nothing happened, so now Congress is poised to step in. About time.
  • Conflicts of interest: this provision requires class counsel to state, in the body of the complaint, “whether any proposed class representative or named plaintiff in the complaint is a relative of, is a present or former employee of, is a present or former client of (other than with respect to the class action) or has any contractual relationship with . . . class counsel” and shall “describe the circumstances under which each class representative or named plaintiff agreed to be included in the complaint and shall identify any other class action in which any proposed class representative or named plaintiff has a similar role.”
  • Attorneys’ fees: “[N]o attorneys’ fees may be . . . paid . . . until the distribution of any monetary recovery to class members has been completed,” and “[u]nless otherwise specified by Federal statute, . . . the portion of any attorneys’ fee award to class counsel . . . shall be limited to a reasonable percentage of any payments directly distributed to and received by class members [and in] no event shall the attorneys’ fee award exceed the total amount of money distributed to and received by all class members.” We particularly like this because it would effectively put an end to cy pres, against which we’ve railed for years. By limiting the denominator for fee awards to “payments directly distributed to and received by class members” it prevents cy pres sums from being used to inflate fee awards.

There are other provisions, requiring stringent accounting provisions for settlement funds forbidding certification of issue classes unless all relevant Rule 23 prerequisites are satisfied (another thing our side tried first to fix through a change to Rule 23), and most significantly providing for severance of misjoined plaintiffs for purposes of jurisdictional determinations. This legislative elimination of fraudulent misjoinder is a key point, since it addresses the multi-plaintiff complaints we love to hate.

We note that since the “effective date” of this act provides for its application to all “pending” civil actions, cases currently in state court can be removed (or removed again) under the provision negating misjoinder as a means of preventing diversity-based removal to federal court.

Finally, in an issue close to our hearts as we daily encounter plaintiffs unwittingly victimized by so-called “litigation funders,” the bill provides, “In any class action, class counsel shall promptly disclose in writing to the court and all other parties the identity of any person or entity, other than a class member or class counsel of record, who has a contingent right to receive compensation from any settlement, judgment, or other relief obtained in the action.” A sunshine law for third-party funding is something else for which we’ve advocated.

Multidistrict Litigation:

  • Proof of exposure and injury: We were thrilled to see a “Lone Pine”-esque provision build into the MDL portion of the bill. It provides, in pertinent part, “In any coordinated or consolidated pretrial proceedings . . . , counsel for a plaintiff asserting” a claim seeking redress for personal injury [in the MDL] shall make a submission sufficient to demonstrate that there is evidentiary support (including but not limited to medical records) for the factual contentions in the plaintiff’s complaint regarding the alleged injury, the exposure to the risk that allegedly caused the injury, and the alleged cause of the injury . . . within 45 days after the civil action is transferred to or directly filed in the proceedings. That deadline shall not be extended. Within 30 days after the submission deadline, the judge . . . shall [determine] whether the submission is sufficient and shall dismiss the action without prejudice if the submission is found to be insufficient.” Thirty days later, in the continued absence of a satisfactory submission, the action is to be dismissed with prejudice. Not long ago, we advocated for amending the MDL statute to require early factual disclosure, with dismissal as the sanction for not disclosing enough to satisfy Rule 8. This is the functional equivalent.
  • Trial Prohibition (“waiving Lexecon”): MDL judges “may not conduct any trial in any civil action transferred to or directly filed in the proceedings unless all parties to the civil action consent to trail of the specific case sought to be tried.” This provision would remove the threat of MDL trials as a tool to force defendants to settle. It is something else for which we have advocated.
  • Ensuring Proper Recovery for Plaintiffs: MDL plaintiffs “shall receive not less than 80 percent of any monetary recovery obtained in that action by settlement, judgment or otherwise.”

While most of the press coverage seems to focus on class actions, to us the removal and MDL provisions are at least as important. The vast bulk of our professional life is spent in the mass tort space – mostly MDLs these days, with the occasional class action thrown in. We have become accustomed (but never inured) to plaintiffs without injuries herded by counsel who are their friends or bosses into mass actions in which they don’t belong. On the other end of the spectrum, we encounter severely injured plaintiffs who will recover next to nothing because lawyers and litigation funders own most or all of the plaintiffs’ stakes in the inevitable settlements. And, at every turn, we sit across the table from tanned and affluent plaintiff attorneys who are the only ones apparently immune to the vagaries of the system and who are the sole beneficiaries of its inequities. H.R. 985, as drafted, attempts to address many of these issues. We do have questions. Who defines “the same type and scope of injury,” for example? And we have doubts: can a bill possibly survive the powerful plaintiff attorney lobby when it attempts to resurrect the integrity of mass litigation by hitting those attorneys squarely in their pocketbooks? But we heartily and excitedly support this bill, and we know that some of its provisions are way, way better than none. We will keep you posted.

Even after having read it through twice, we find the result in Barron v. Abbott Laboratories, Inc., ___ S.W.3d ___, 2016 WL 6596091 (Mo. App. Nov. 8, 2016), hard to fathom, and even harder to stomach.  For several years after starting the blog, one of our aphorisms was “nothing good ever comes out of Missouri.”  Then legal developments caused us to retire that slogan.  Now we may have to bring it back – maybe.

Barron affirmed a $48 million verdict – concerning birth defects – against the maker of a drug that had a black box warning – about birth defects

[THE DRUG] CAN PRODUCE TERATOGENIC EFFECTS SUCH AS NEURAL TUBE DEFECTS (E.G., SPINA BIFIDA). ACCORDINGLY, THE USE OF [THE DRUG] IN WOMEN OF CHILDBEARING POTENTIAL REQUIRES THAT THE BENEFITS OF ITS USE BE WEIGHED AGAINST THE RISK OF INJURY TO THE FETUS.

Barron, 2016 WL 6596091, at *1.

Astonishingly, this boxed warning, which only the FDA can mandate, was a sufficiently inadequate advisory that the drug could cause birth defects that a St. Louis (City) jury awarded $23 million in punitive damages to the plaintiff, who was from Minnesota.

And those two places – St. Louis City and Minnesota – are as much the problem as the “Show-Me-The-Money State” verdict itself. Barron is a poster child for venue and joinder run amok.  First, the underlying action was filed by 24 plaintiffs from all over the country (13 different states), with nothing in common save claiming somewhat similar injuries to different persons from the same drug.  Id. at *4.  Of course, a couple of plaintiffs were from Missouri (and another presumably from the home state of a defendant), in order to defeat diversity.  Id. at *2.

Continue Reading Awful Missouri Venue/Joinder Ruling Offers Way Out – Take It!

In this post we happily bring to your attention three more favorable resolutions where pharmaceutical defendants faced with multi-plaintiff misjoined complaints utilized the limits on general personal jurisdiction imposed by Daimler AG v. Bauman, 134 S. Ct. 746 (2014).  The misjoined complaints were sliced, diced, and ultimately dismissed in federal court.  We’ve discussed this technique before, here, here, and here, but it bears repeating – this is a way for defendants to defeat CAFA-skirting plaintiff misjoinders while avoiding the morass of “fraudulent joinder.”

We haven’t rated Oklahoma particularly highly as one of the other sides’ favored jurisdictions, but apparently parts of it are – at least in propoxyphene-related litigation. The three substantively  identical decisions, Guillette v. PD-RX Pharmaceuticals. Inc., 2016 WL 3094073 (W.D. Okla. June 1, 2016); Manning v. PD-RX Pharmaceuticals Inc., 2016 WL 3094075 (W.D. Okla. June 1, 2016); and Nauman v. PD-RX Pharmaceuticals Inc., 2016 WL 3094081 (W.D. Okla. June 1, 2016), all involved complaints filed by multiple plaintiffs with nothing in common except allegations of injury due to products containing this drug.  Multiple defendants that made multiple products were also involved.

Usually, complaints of this nature are structured so that at least one plaintiff is a resident of the forum state, but not here. “Admittedly, no Plaintiff is an Oklahoma resident.”  E.g., Guillette, 2016 WL 3094073, at *1 (since the three opinions are substantively identical, we’ll cite only this one).  That fact makes things a little easier for defendants (no need to sever and possibly remand the in-state plaintiff), but, as we’ve discussed in our prior posts, is in no way dispositive.

Continue Reading Bauman Jurisdictional Limits Dismember Three More Misjoined Multi-Plaintiff Complaints

Twice this month we’ve reported on “the saga of Cymbalta plaintiff lawyers who keep pushing the litigation up a hill in an effort to create a class action, mass action, MDL, or whatever will allow them to park as many meritless cases in one place, only to have that litigation roll back down the hill, resulting in crushed toes, directed verdicts, and jury findings of no liability.”  Let’s make it a trifecta.  Both with our third post and with three more decisions severing the claims of misjoined plaintiffs who have nothing in common except that they each used Cymbalta and they each allege injury.  The cases are Jones v. Eli Lilly, 2015 U.S. Dist. LEXIS 141925 (S.D. Ind. Oct. 19, 2015) (15 plaintiffs from 11 states); DeCrane v. Eli Lilly, 2015 U.S. Dist. LEXIS 141924 (S.D. Ind. Oct. 19, 2015) (2 plaintiffs); Boles v. Eli Lilly, 2015 U.S. Dist. LEXIS 141922 (S.D. Ind. Oct. 19, 2015) (19 plaintiffs from 11 states).

We set out the background of plaintiffs’ counsel’s numerous attempts to create a mass tort in our prior posts here and here.  Based on theses earlier decisions, the result in these three cases is really no surprise. But, it does make for more great precedent on misjoinder and severance.  So, today we’ll throw you some sound bites.  For instance, it is hard to argue claims are properly joined when they are described as:

the claims of fifteen Plaintiffs from eleven different states whose allegations rest on distinct, unrelated factual scenarios: Cymbalta treatment over fifteen different time periods, presumably in eleven different states, for several different conditions….; use of the medicine under the care of multiple healthcare professionals from a range of medical subspecialties, affiliated with different practices and, potentially, varying degrees of exposure to the relevant product labeling; a host of potential co-medications and comorbidities; and, finally, Plaintiffs’ particular discontinuation methods (whether abrupt or tapered over varying lengths of time) which allegedly resulted in a range of symptoms of varying type, severity, and duration.

Jones, 2015 U.S. Dist. LEXIS 141925 at *16-17 (all three decisions are virtually identical, so we cite to Jones throughout).

Continue Reading Another Smack Down for Cymbalta Plaintiffs’ Lawyers

This post is from the non-Reed Smith side of the blog.

Yesterday we brought you the latest InFuse federal appellate court win.  Today we tee up the latest state appellate court win – David v. Medtronic, Inc., 2015 WL 3645254 (Cal. Ct. App. Jun. 12, 2015).

In this InFuse case, 37 plaintiffs filed a single complaint in California state court against Medtronic (manufacturer of the InFuse device); Wyeth (developer of the protein used with the device); and Dr. Gary K. Michaelson whom plaintiffs alleged “invented, in part” the cage component of the device.  Id. at *1-2.  Neither Medtronic nor Wyeth is a California corporation.  Dr. Michaelson, however, is a resident of Los Angeles.  Id.  Only one of the plaintiffs is a California resident.

Medtronic filed motions both to sever each plaintiff’s case and to dismiss all but the California plaintiff on the grounds of forum non conveniens.  The trial court granted both motions and the appellate court upheld those decisions.

As to severance, both courts found that plaintiffs had not satisfied the standards for permissive joinder – a right to relief “arising out of the same transaction, occurrence, or series of transactions or occurrences.”  Id. at *3.  After providing examples of how this standard is properly met, the court distinguished

Here, the only common factor is that plaintiffs each had Infuse, or the Infuse protein, implanted in them. Plaintiffs do not allege, for example, that they each had the same class of spinal surgery, based at least in part on the same representation, and that the Infuse failed in each of them in the same way. On the contrary, they had different surgeries, performed by different surgeons, with different knowledge and exposure to different representations by Medtronic. This is not sufficient.

Once severed, the trial court then ruled that for the non-California plaintiffs, alternative forums existed (their home states) and that public and private factors weighed in favor of the litigation proceeding in those alternative forums.  Id. at *4.  On appeal, plaintiffs only challenged the first finding – whether alternative forums existed.  Their argument was that “all defendants, including nominal ones, must be subject to jurisdiction in an alternative forum in order for it to be available.”  And, that since Dr. Michaelson was not subject to jurisdiction in plaintiffs’ home states, viable alternative forums did not exist.  No one disputed that Dr. Michaelson was at best a nominal defendant (most certainly named to defeat diversity jurisdiction) – so the question was whether there is a nominal defendant exception to the “all defendants” alternative forum rule.  As a question of first impression in California, the court looked to federal precedent holding that a plaintiff cannot be allowed to avoid transfer “merely by including as a defendant a party who cannot be sued in the transferee court, but is of no real importance to the outcome of the case.”  Id. at *5.

Finding the federal rulings persuasive, the court had to decide what to do with plaintiffs’ claims against Dr. Michaelson – which although tenuous, did not warrant dismissal based on the current motions.  Rather than allow the “peripherally liable” party either to dictate litigation in an inconvenient forum or to escape liability completely, the court decided a second severance was in order.  Plaintiffs’ claims against Medtronic were severed and dismissed on forum non conveniens grounds and the claims against Dr. Michaelson were allowed to proceed in California.  When plaintiffs cried duplication – the court reminded them they were free to dismiss their claims against Dr. Michaelson if they so chose.

This is a significant decision for defendants faced with a complaint that tries to use both misjoinder and fraudulent joinder to keep cases in plaintiff-friendly jurisdictions.  We like to see that courts are onto the ruse.

This post relates to the Vioxx litigation, in which Beck’s firm is involved. You therefore can’t blame Beck for this post; it’s being written entirely by Herrmann.

We’ve previously posted about the headaches caused when unrelated plaintiffs join their claims in a single complaint.

In the Vioxx litigation, Judge Fallon had originally permitted unrelated plaintiffs to join their claims in a single complaint. He has now learned from hard experience that this simply doesn’t work. Joinder poses “administrative complications” and “certain inefficiencies” that are avoided by requiring unrelated plaintiffs to file separate complaints. Here’s a link to Pre-Trial Order No. 26 in MDL No. 1657, in which Judge Fallon requires the filing of separate complaints.

It’s a shame that Judge Fallon didn’t provide a little detail about the administrative headaches caused by misjoinder; later litigants and judges could probably benefit from learning about his experience. But folks who have waded through massive misjoinders trying, for example, to select individual bellwether cases for trial can certainly empathize with His Honor. Misjoinder can make life hard.

On the other hand, misjoinder can also make life easy. Plaintiffs’ counsel of course prefer to file a single complaint that names hundreds of plaintiffs instead of hundreds of complaints that name single plaintiffs — think of the filing fees you save!

And defendants are sometimes willing to permit that misjoinder.

Orders authorizing misjoinder in MDLs save plaintiffs money on filing fees if they choose to file in the MDL. That incentive can attract plaintiffs into an MDL, rather than creating competing state court litigation, and can enhance the efficiencies that MDL proceedings sometimes enable. Defendants who prefer defending coordinated federal proceedings to multiple state court proceedings occasionally stipulate to allowing misjoinder at the pleading stage (although those defendants almost always oppose joinder of unrelated plaintiffs for trial purposes).

This issue is still a work in progress. As MDL judges experiment with allowing pretrial misjoinder, the judiciary will probably decide when, if ever, that approach permits the litigation to be managed more efficiently.

We’ve previously posted on the ridiculous misjoinders frequently seen in mass tort cases. To avoid paying filing fees, plaintiffs’ lawyers join the claims of scores — or hundreds, or thousands — of unrelated plaintiffs in a single complaint. As we noted in our earlier post, courts usually see through those shenanigans and order severance and re-filing of the complaints as separate lawsuits on behalf of individual plaintiffs.

But now there’s a new wrinkle: plaintiffs’ counsel sometimes insist that they shouldn’t have to pay separate filing fees for each of the new complaints. It’s no surprise that plaintiffs make that argument. After all, the filing fee is $350 per complaint. Multiply $350 times a few thousand complaints, and pretty soon you’re talking real money.

But should plaintiffs nonetheless be required to pay those fees? Of course they should.

First, the statute requiring the payment of filing fees is unambiguous:

The clerk of each district court shall require the parties instituting any civil action, suit or proceeding in such court, whether by original process, removal or otherwise, to pay a filing fee of $350, except that on application for a writ of habeas corpus the filing fee shall be $5.

28 U.S.C. Sec. 1914(a). That language should be dispositive. When claims are severed for misjoinder and new complaints are filed, a civil action has surely been instituted “by original process, removal or otherwise.”

Happily, courts regularly so hold. For example, in In re Diet Drugs, 325 F. Supp. 2d 540, 542 (E.D. Pa. 2004), app. dism’d, 418 F.3d 372 (3d Cir. 2005), 62 plaintiffs filed a single product liability complaint in Mississippi state court. After removal and transfer to the pending MDL proceeding, the federal court severed the plaintiffs’ claims for misjoinder and ordered the filing of separate complaints. The court properly interpreted the broad language of Section 1914(a) to require the payment of filing fees for each of the new complaints:

While it is true that the plaintiffs started out with one civil action, this court has now compelled the filing of separate complaints for each of the plaintiffs. The filing of a separate complaint constitutes the institution of a civil action or proceeding — if not by original process or removal, then otherwise.

Id. at 542 (emphasis in original). Similarly, in In re Seroquel Products Liability Litigation, No. 6:06-md-1769-Orl-22DAB, 2007 WL 737589 (M.D. Fla. Mar. 7, 2007), the court severed the claims of misjoined plaintiffs and ordered each plaintiff to pay a filing fee. Plaintiffs sought to reduce the fee because, if the fee were not reduced, plaintiffs’ counsel would immediately be forced to pay more than $2 million in filing fees. The court denied plaintiffs’ motion both because filing fees are a “gatekeeping feature” and because the court was entitled to be paid a fee that defrays from the cost of managing plaintiffs’ individual cases. Id. at *3.

Those decisions are not alone. See also, e.g., Baumgardner v. Wyeth Pharmaceuticals, No. 05-05720-JF, slip op. at 3 (E.D. Pa. May 11, 2006) (“There really are 10 separate cases. If plaintiffs wish to proceed in this court, each set of plaintiffs must pay the appropriate filing fee.”); DIRECTV v. Loussaert, 218 F.R.D. 639, 644 (S.D. Iowa 2003) (each plaintiff must pay filing fee for new action after claims severed for misjoinder); DIRECTV v. Beecher, 296 F. Supp. 2d 937, 945 (S.D. Ind. 2003) (severing misjoined claims and granting plaintiff option “to file separate actions, if it chooses to do so, with new complaints and filing fees”): Aaberg v. ACandS, 152 F.R.D. 498, 501 (D. Md. 1994) (if new complaints filed after severance for misjoinder, “any such filing must be accompanied by the appropriate filing fee”).

We don’t like spilling ink (or, in this cyber-world, is it “wasting electrons”?) over routine administrative matters such as the obligation to pay filing fees. But if plaintiffs are going to try to short-change the courts, we feel obliged to speak up for the system.

We’ve done it, and we feel much better now.

We posted last week (on January 11) about the overwhelming trend in the courts to sever the unrelated claims of multiple plaintiffs that are misjoined in product liability complaints.

Magistrate Judge David A. Baker of the Middle District of Florida recently recommended sua sponte that the court sever the claims of more than 6,500 Seroquel plaintiffs and require those claims to be filed separately. Although we can’t provide a link, the cite is In re Seroquel Prods. Liab. Litig., MDL No. 1769, No. 06-md-1769 (M.D. Fla. Dec. 22, 2006).

It now happens at the outset of almost every major mass tort. Plaintiffs’ counsel, having through various forms of solicitation amassed a “great unwashed” of nominal clients about whom they know next to nothing, chooses to dump them all on one unfortunate court in a single complaint. Of course, by filing a single complaint, counsel pays only one filing fee.

So now, as defense counsel, we’ve got a mess on your hands. One complaint – hundreds, maybe thousands, of plaintiffs – and no information about any of them. It amounts to an instant mass tort. Often it’s worse, in that otherwise diverse plaintiffs are fraudulently misjoined with non-diverse plaintiffs (or non-diverse defendants against which only very few plaintiffs have a claim) in an attempt to defeat removal of the action to federal court under diversity jurisdiction.

Obviously, the first thing that runs through our heads is to move to sever on grounds of misjoinder. The law’s pretty clear nowadays that these gigantic complaints are completely improper under Fed. R. Civ. P. 20(a) and most state joinder rules. A great deal of case law in federal and state courts holds 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.” Janssen Phameceutica, Inc. v. Armond, 866 So. 2d 1092, 1096 (Miss. 2004); see In re Prempro Products Liability Litigation, 417 F. Supp.2d 1058, 1059-60 (E.D. Ark. 2006); In re Silica Products Liability Litigation, 398 F. Supp.2d 563, 651-54 (S.D. Tex. 2005); Jones v. Nastech Pharmaceutical, 319 F.Supp.2d 720, 728 (S.D. Miss. 2004); In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Products Liability Litigation, 294 F. Supp. 2d 667, 679 (E.D. Pa. 2003); In re Baycol Products Litigation, 2003 WL 22341303, at *3 (D. Minn. 2003); In re Baycol Products Litigation, 2002 WL 32155269, at *2 (D. Minn. July 5, 2002); In re Rezulin Products Liability Litigation, 168 F. Supp.2d 136, 145-47 (S.D.N.Y. 2001); In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Products Liability Litigation, 1999 WL 554584, at *4 (E.D. Pa. July 16, 1999); Simmons v. Wyeth Laboratories, Inc., 1996 WL 617492, at *4 (E.D. Pa. Oct. 24, 1996); Purdue Pharma, L.P. v. Estate of Heffner, 904 So. 2d 100, 103 (Miss. 2004); Adams v. Baxter Healthcare Corp., 998 S.W.2d 349, 358 (Tex. App. 1999); Blalock Prescription Center, Inc. v. Lopez-Guerra, 986 S.W.2d 658, 663-64 (Tex. App. 1998).

Other precedent holds the same thing in the context of consolidation. In re Repetitive Stress Injury Litigation, 11 F.3d 368, 373 (2d Cir. 1993) (granting mandamus and vacating order consolidating repetitive stress injury claims); Graziose v. American Home Products Corp., 202 F.R.D. 638, 641 (D. Nev. 2001); (“This case should be six separate cases. They will each involve separate discovery, separate claims, separate damages, separate defendants, separate [products], separate physical conditions and history, and. . .separate witnesses. The Court will sever the claims”); Janssen Pharmaceutica, Inc. v. Grant, 873 So. 2d 100 (Miss. 2004) (rejecting the aggregation for trial of four drug cases because the “litigable events” underlying each plaintiff’s claims were different); Sapiro v. Sunstone Hotel Investors, L.L.C., 2006 WL 898155, at *2 (D. Ariz. Apr. 4, 2006) (rejecting attempt to consolidate two Legionnaires’ Disease cases); In re Consolidated Parlodel Litigation, 182 F.R.D. 441, 447 (D.N.J. 1998); (same; fourteen prescription drugs cases); Glussi v. Fortune Brands Inc., 714 N.Y.S.2d 516, 518 (App. Div. 2000) (same; eight cigarette cases).

This wasn’t always the case. Back when we first met one another, laboring in the Orthopedic Bone Screw vineyards, it was still an open question whether plaintiffs were going to get away with this kind of thing. One of the earlier opinions prohibiting joinder simply because all the plaintiffs used the same product and claimed the same injuries was ours. In re Orthopedic Bone Screw Products Liability Litigation, 1995 WL 428683 (E.D. Pa. July 17, 1995). Even there, the court allowed what we consider misjoinder if unrelated plaintiffs all had the same prescriber. Getting these mega-complaints split up is still dicey in some locales, as Kemp v. Metabolife International, Inc., 2003 WL 22272186 (E.D. La. Oct. 1, 2003), illustrates.

So one thing we’ve learned in these situations is that we have an ally in an unexpected place – the court clerk. Almost all clerk’s offices are not organized to handle complaints of this nature. It is difficult or impossible for them to set up individualized, plaintiff-specific files where there is only one docket number. Also, many clerk’s offices make a significant portion of their revenues from collection of filing fees and they know when they’re being gypped. Well, it just so happens that judge’s chambers and clerk’s offices deal with one another constantly. So when we’re wondering how to get the judge to listen to us out-of-state (usually) defense counsel as against a “home-court” (again, usually) plaintiff’s counsel, consider getting a letter or other support from the court clerk complaining about the misjoinder. It’s helped a lot, particularly in state court.