PRODUCT LIABILITY
Little in Common
By James M. Beck
Opposing Trial
Consolidation in
Product Litigation
A look at the prejudicial
and inconsistent effects of
this broadly discretionary
court order, as well as
its constitutionality
where punitive damages
are involved.
James M. Beck is counsel with Dechert LLP in Philadelphia where he handles complex personal injury and product liability litigation. Mr. Beck has overseen the development of legal defenses, master briefs, and dispositive motions in numerous mass
torts, including Seroquel, Vioxx, diet drugs, Baycol, and orthopedic bone screws. In addition to DRI, Mr. Beck is a member of the
Product Liability Advisory Council (PLAC) and has sat on PLAC’s case selection committee since 1997. He has written over 50
amicus curiae briefs on product liability issues for PLAC.
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© 2011 DRI. All rights reserved.
Of all the discretionary rulings that a judge can make concerning the course of a trial, few are as pervasively prejudicial to a product liability defendant as deciding to
consolidate cases if they bear little similarity other than
that the same product resulted in an alleged
injury in each case. While the massive consolidations that dotted certain parts of the
legal landscape a decade ago seem to have
gone the way of the dinosaur, plaintiffs still
propose consolidations on a smaller scale.
The Discretionary Nature
of Consolidation
Because consolidation is discretionary,
there seems to be little rhyme or reason to
when a judge orders or denies it, save the
inclination of the judge. Three recent examples demonstrate this point. In Michael
v. Wyeth, LLC, 2011 WL 1527581 (S.D.W.
Va. April 20, 2011), the plaintiffs moved
to consolidate three hormone replacement
therapy cases. The court denied the consolidation request because, even though
the cases involved the same allegations
and similar drugs, they were “highly fact
specific” due to differences in the plaintiffs’ medical conditions, risk factors, prescription and use of the drug, and the times
and length of use. Id. at *2. Thus, the court
found that any beneficial efficiency was
“overborne by risks of prejudice and possible confusion.” Id. at *3.
By contrast, in In re Mentor Corp. Obtape Transobturator Sling Products Liability, 2010 WL 797273 (M.D. Ga. 2010 Mar.
3, 2010), four plaintiffs claiming differing
injuries from an implantation of the same
medical device sought and were granted
consolidation. Again, the surgeries took
place at different times over the course of
almost a year, and at different hospitals, although three of four plaintiffs shared the
same facility, different surgeons performed
the surgeries, and the plaintiffs had different medical histories and backgrounds. Id.
at *1, 3. Despite all of these differences, the
court ordered consolidation, even declaring
it a “particularly appropriate tool” for multi-­
district litigation. Id. at *3. Notably, the
court ordered consolidation even though
the four consolidated cases would be the
first cases tried in the litigation. Id. at *2.
Finally, in Johnson v. Advanced Bionics,
LLC, 2011 WL 1323883 (W.D. Tenn. April
4, 2011), the court granted the defendant’s
motion for separate trials in two cases
involving the same cochlear (ear) implant,
which failed prematurely in both cases.
Because the plaintiffs had different medical
histories, suffered different damage, and
experienced different modes of device failure, the court granted the motion and precluded consolidating the trials. Id. at *4–5.
A seventeen-­month gap between the two
surgeries affected the defendant’s stateof-the-art defense, so “the Court would be
limited in its ability to exclude such evidence and would likely be forced to admit
evidence that it would otherwise exclude.”
Id. at *5.
The facts in Michael, Mentor, and Johnson of course varied somewhat. Michael
involved more widely separated alleged
injury experiences, but the litigation itself
was the most mature. Mentor had the most
overlap between surgeons, but involved the
greatest number of plaintiffs and the least
mature litigation. Johnson involved the
fewest plaintiffs, the gap between surgeries was not as extreme as in Michael and
was larger than in Johnson, but it probably
involved the greatest discrepancy between
the plaintiffs’ outcomes and damages.
In short, consolidation is broadly discretionary. However, in product liability cases,
courts do not have valid reasons to consolidate tort trials if the cases do not involve
more than one plaintiff experiencing a common accident. In pattern litigation, consolidation offers “little advantage over a few test
trials that 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).
Prejudice from Trial Consolidation—
The Agrofollajes Example
For defendants, consolidation takes everyone down together and prejudices the de-
fendants’ abilities to defend the individual
cases. It invites juries to decide cases on
improper bases—most usually that these
different people would not sue the defendants unless something was wrong. See
Sidari v. Orleans County, 174 F.R.D.275,
282 (W.D.N.Y. 1996) (“consolidation of the
two cases would likely be overly prejudicial
to the defendants” because “lumping” the
claims together “amounts to guilt by association”). Consolidation confuses juries with
masses of individual plaintiff-­specific facts
and invites averaged verdicts. As mentioned
in Johnson, it makes proper application of
the state-of-the-art defense impossible because different plaintiffs use the products at
different times. Along the same lines, consolidation makes excluding from evidence
subsequent remedial measure taken by defendants impossible since a defendant can
take a remedial measure “subsequent” to
one plaintiff’s injury while the measure’s
timing still may precede another plaintiff’s
injury. When plaintiffs seek punitive damages, deliberately consolidating multiple
plaintiffs’ cases into one trial approaches a
per se violation of Philip Morris USA v. Williams, 549 U.S. 346 (2007).
Because courts ordinarily have such
great discretion to consolidate cases, an appellate court generally must find the facts of
a case extreme before it will reverse a consolidation order. Such a reversal occurred,
however, in Agrofollajes, S.A. v. E.I. Du Pont
de Nemours & Co., 48 So. 3d 976 (Fla. App.
2010). Agrofollajes involved a number of
Costa Rican fern growers who, attracted
by the lush South Florida litigation climate,
sued Du Pont alleging that its Benlate fungicide damaged the growers’ ferns. A court
had consolidated all the claims of 27 different businesses—some profitable, some
not, and all variations in between—into
one, big, three-ringed circus of a trial. The
result was predictable.
At the trial, all the supposed “common
issues,” the reasons why consolidation supposedly would “save time,” fell by the wayside. As the plaintiffs’ counsel presented it,
Somebody I think in jury selection said,
“One farm? Two farms? Five farms? But
27 farms?” That’s what you’re going to
hear. They don’t have anything else in
common…. What is the one thing they
have in common? The proof is going to
be Benlate. That’s the chain that links
For The Defense September 2011 29
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PRODUCT LIABILITY
every one of these people that you see in
the courtroom today.
Id. at 981 (quoting the plaintiffs’ counsel’s
opening statement). Thus, the “efficiency”
excuse evaporated, and the trial became
a tautology, with consolidation offered as
substantive evidence. The procedural consolidation became the plaintiffs’ gut-level
proof of causation before the jury. Legally,
Echoing the concerns of
the earlier panel, the court
cautioned: “consolidation
should not be ordered if it
would prejudice defendant.”
such causation “proof” is utterly improper
and unscientific, but its visceral appeal to
a jury has considerable force. It is rare to
see the issue on display as bluntly as in
Agrofollajes.
Of course the Agrofollajes trial devolved
into a miasma of individualized issues. Did
the plaintiffs actually use Benlate? How did
they apply it? In what concentrations did
they apply it? For how long did they apply
it? Did the plaintiffs use any other chemicals at the same time? How soon after using
it did problems arise? Could alternative
causes, such as poor weather or soil infertility, explain the damage to the growers’
ferns? Were the plaintiffs competent farmers generally? The answers to each of these
questions would impact liability or damages. 48 So. 3d at 982–83.
In Agrofollajes, the legal prejudice inherent in consolidation became apparent particularly in the way that the trial court
admitted the defendant’s subsequent remedial measures. The trial court admitted
label changes and recalls generally, since
it was impossible to expect jurors to compartmentalize and keep straight which of
this extremely prejudicial evidence applied
to which of the plaintiffs given that their
numbers. Id. at 983.
As everyone in the courtroom undoubtedly expected, the jury, after an eight-week
trial, was totally overwhelmed. It returned
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a classic, averaged verdict, throwing the
disparate cases of all the plaintiffs together
and awarding them essentially the same
damages:
The jury found against Du Pont on negligence and awarded each of the twenty-­
seven consolidated plaintiffs identical
awards. The jury awarded every plaintiff
the same percentage, sixty percent (60
percent), of the past damages claimed
for both lost profits and tax benefits and
denied the plaintiffs all future damages,
including the costs of remediation, as
well as their lost profits during the remediation process.
Agrofollajes, 48 So. 3d at 983 (emphasis
added).
The Florida Third District Court of
Appeals reversed and remanded, ruling
that the trial court had abused its discretion in consolidating the cases, and the
consolidation had been extremely prejudicial to the defendants. The multifactor
Florida standard for consolidation is not
greatly different from the standard of other
states since the adverse effects of consolidation in trials are essentially the same everywhere. The elements a court must consider
before consolidating cases are “(1) whether
the trial process will be accelerated due to
the consolidation; (2) whether unnecessary
costs and delays can be avoided by consolidation; (3) whether there is the possibility for inconsistent verdicts; (4) whether
consolidation would eliminate duplicative
trials that involve substantially the same
core of operative facts and questions of
law; and (5) whether consolidation would
deprive a party of a substantive right.” Id.
at 986 (quoting State Farm Florida. Insurance Co. v. Bonham, 886 So. 2d 1072, 1075
(Fla. App. 2004)).
Anytime a group of plaintiffs all claim
the same injury from the same product,
their cases will share some common issues,
but the Agrofollajes court held that the dissimilarities were more important. Id. at
987. “Symptoms of Benlate damage manifested themselves at different times” for
different plaintiffs. 48 So. 3d at 986–87.
The defense raised “alternative causes” of
damage, “each unique and distinctively
affecting individual [plaintiffs].” Id. at 987.
Factors relevant to damages also varied
widely among the plaintiffs, such as each
plaintiff’s “mitigation practices,” and the
characteristics of different farms’ climate,
soil conditions, and pest infestations. Id.
Some farms remained in business, while
others had closed. Id. And, of course, some
plaintiffs alleged that they suffered damage for many years, while others claimed a
much shorter period of injury. Id.
Given those differences, the mere fact
that all plaintiffs claimed the same general
type of injury from the same product was
insufficient to justify consolidation:
On appeal, the plaintiffs argue that
despite the numerous differences articulated and entered into evidence regarding the twenty-­seven [farmers], it is the
same core of operative facts and questions of law that predominate and,
thus, consolidation of the twenty-­seven
claims was proper. We find this argument unpersuasive.
Agrofollajes, 48 So. 3d at 987. The court
looked to federal precedent because Florida’s rule duplicated Federal Rule of Civil
Procedure 42(a) governing consolidation.
Id.
Consolidated trials, as have so many
other adverse legal developments, originated in asbestos litigation, the mother of
all mass torts. While multi-­plaintiff trial
consolidation was a bad idea in asbestos cases, it has been an even worse idea
in cases when: (1) a product actually had
warnings, making warning causation an
issue; (2) the litigation lacked a signature
disease, and the injuries had many possible
alternative medical causes; and (3) an independent actor—a learned intermediary—
initiated use of the product after evaluating
a plaintiff’s unique personal attributes only.
Agrofollajes relied primarily upon In re
Brooklyn Navy Yard Asbestos Litigation,
971 F.2d 831, 853 (2d Cir. 1992), in which
the Second Circuit grudgingly affirmed
verdicts from a consolidated asbestos trial
partly due to evidence that the jury had
discriminatingly considered the evidence
and each case individually; that jury had
returned some defense verdicts, and the
awards corresponded to differences in
injury:
[W]e are mindful of the dangers of a
streamlined trial process in which testimony must be curtailed and jurors
must assimilate vast amounts of information. 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.
48 So. 3d at 987 (quoting Brooklyn Navy
Yard). But not every jury, in fact, not most,
and certainly not juries in the worst jurisdictions, will as assiduously consider evidence in each individual case. The trial
court in Brooklyn Navy Yard had commented, as pointed out by the court of
appeals, that this had been the “best jury”
that he had “ever had.” 971 F.2d at 853.
When the Second Circuit took a second
look at a 48-­plaintiff, consolidated, and
reverse-­bifurcated asbestos trial in Malcolm v. National Gypsum Co., 995 F.2d 346
(2d Cir. 1993), the court stepped in and
called a halt. With so many plaintiffs “the
jury was presented with a dizzying amount
of evidence.” Id. at 349.
The Malcolm trial took months. But it
was an asbestos trial, meaning that at the
end, only two cases were left: all the others had settled. But Second Circuit held
that the trial court had abused its discretion even in consolidating those two cases.
Echoing the concerns of the earlier panel,
the court cautioned that administrative
convenience in mass torts does not give
courts an excuse to expose defendants to
the prejudice of consolidated trials: “consolidation should not be ordered if it would
prejudice defendant.” 995 F.2d at 350 (quoting Flintkote Co. v. Allis-­Chalmers Corp., 73
F.R.D. 463, 464 (S.D.N.Y. 1977)). Elaborating, the court wrote,
In the exercise of discretion, courts have
taken the view that considerations of
judicial economy favor consolidation.
However, the discretion to consolidate
is not unfettered. Considerations of convenience and economy must yield to a
paramount concern for a fair and impartial trial.
Id.
Even in asbestos cases, a court abuses its
discretion if it consolidates cases involving
different workplaces among plaintiffs, different occupations among plaintiffs, different exposure times among plaintiffs,
different disease types among plaintiffs,
and living and dead plaintiffs. Id. at 351–52.
Consolidating cases based solely because
they involve the same product produces a
“maelstrom of facts, figures, and witnesses”
that a jury cannot keep straight. Id. at 352.
In Malcolm, the Second Circuit wrote that
“it is possible to go too far in the interests
of expediency and to sacrifice basic fairness in the process. In ordering consolidation we repeat the counsel of Talleyrand,
“Pas trop de zèle”—not too much zeal.”
995 F.2d at 354. See also Cain v. Armstrong
World Industries, 785 F. Supp. 1448, 1455
(S.D. Ala. 1992) (involving another asbestos consolodating overwhelming that jury,
which uniform damages and noting “confusion and prejudice is manifest in the
identical damages awarded”).
In Agrofollajes, the jury simply threw up
its hands after five days of deliberation and
awarded formulaic damages:
[Defendant] was subjected to juror confusion and prejudice. Despite the diverse
experiences of the twenty-­seven plaintiffs, all were awarded the same exact
percentage of their claimed damages.
The common awards by the jury, in
conjunction with the vast amount of
disparate evidence presented at trial,
demonstrate that the consolidation of
the twenty-­seven claims resulted in a
hopelessly confused jury. Thus, the consolidation was inappropriate.
48 So. 3d at 988.
Unfair prejudice became quite evident in
Agrofollajes: the disparate facts in the cases
led to uniform results. The Agrofollajes
court took the opportunity to point out that
“[u]n­fair prejudice as a result of consolidation is a broadly recognized principle.” Id.
In Florida, as elsewhere, “even if consolidation is the ‘most practical and efficient
method of processing’ a case, practicality
and efficiency should not outweigh a defendant’s right to a fair trial.” Id. (quoting State
v. Williams, 453 So. 2d 824, 825 (Fla. 1984)).
Accord Johnson v. Celotex Corp., 899 F.2d
1281, 1285 (2d Cir. 1990) (“[c]on­siderations
of convenience and economy must yield to
a paramount concern for a fair and impartial trial”); Arnold v. Eastern Air Lines, Inc.,
712 F.2d 899, 906 (4th Cir. 1983) (en banc)
(“convenience may not prevail where the
inevitable consequence to another party is
harmful and serious prejudice”).
Beyond the jury’s confusion, the Agrofollajes consolidation also spawned blatant legal error. As discussed above, among
consolidation’s many vices in mass tort
cases is that it eliminates the critical element of timing, depriving defendants of
the state-of-the art defense on the one hand
and exposing them to improperly admitted subsequent remedial measures on the
other, creating “perfect” plaintiffs’ cases
permitting all plaintiffs to rely on all evidence relevant to anybody, regardless of
differences in time and place. The Agrofollajes court called an error an error:
By consolidating the claims, the plaintiffs introduced evidence to the jury that
would not have been admissible had the
cases been tried separately. Jurors who
considered the claims of plaintiffs who
had never used [the product] or did not
use it after 1991, were allowed to hear
evidence of [the defendant’s] subsequent
remedial measures, even though the
measures were inadmissible as to those
plaintiffs.
48 So. 3d at 988 (emphasis added). The trial
court erred in admitting as evidence a recall, a label change, and the defendant’s ultimate withdrawal of the product from the
market because the defendant’s remedial
measures weren’t relevevant to some of the
plaintiffs’ use. See Malcolm, 995 F.2d at 351
(consolidation improper where different exposure times “increas[e] the likelihood of
prejudice, particularly concerning ‘stateof-the-art’ evidence”); Cain, 785 F. Supp.
at 1457 (where “[e]vi­dence that would not
have been admissible in [a] single plaintiff’s
case had these cases been tried separately”
is admitted, consolidation held an abuse
of discretion); Arnold, 712 F.2d at 907 (improperly introduced evidence, caused by
consolidation of plane crash plaintiffs, “implanted in the minds of the jury resulted in
prejudice, almost surely prejudice from the
outset and certainly prejudice after the trial
had wended its way to conclusion”).
Because “the operative facts of the individual plaintiffs were disparate” and “predominated over the common issues,” the
trial court abused its discretion by consolidating the cases in Agrofollajes. Id.
at 988–89. Improperly applying a supposed time-­saving device resulted in a
waste of an eight-week trial. The Agrofollajes court remanded the case and pointedly instructed the trial court not to try
cutting corners again:
[W]e hold that the trial court abused its
discretion in consolidating the claims
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PRODUCT LIABILITY
brought by the twenty-­seven plaintiffs
against [defendant]. We thus reverse and
remand these cases, with instructions
that the claims be severed as individual
plaintiffs in separate trials.
Id. at 989.
Agrofollajes is particularly interesting
because the court emphasized that “the record… demonstrated that [ ] common is-
Experience and
precedent demonstrate
that consolidated multi-­
plaintiff trials inherently
favor plaintiffs, practically
guarantee jury confusion…
and create unnecessary
appellate issues.
sues did not predominate at trial.” See 48
S.3d at 986; id. at 988 (“where questions
affecting only certain individual plaintiffs
predominate over common questions” consolidation is prejudicial); id. at 988 (“operative facts of the individual plaintiffs…
predominated over the common issues presented at trial…. Consequently, we hold
that the trial court abused its discretion”).
Courts have developed predominance of
common issues as a test in class actions.
Applying that body of law to trial consolidation, which in some ways bears some similarity to a class action, seems to be a good
idea as courts have strictly applied predominance in class actions as of late. Particularly
in product liability mass torts, individual
issues almost always “predominate” over
common ones. E.g., St. Jude Medical, Inc.,
Silzone Heart Valve Products Liability Litigation, 522 F.3d 836, 839–41 (8th Cir. 2008);
Zinser v. Accufix Research Institute, Inc.,
253 F.3d 1180, 1189–1900 (9th Cir. 2001),
amended by, 273 F.3d 1266 (9th Cir. 2001);
Valentino v. Carter-­Wallace, Inc., 97 F.3d
1227, 1234 (9th Cir. 1996); In re American
Medical Systems, Inc., 75 F.3d 1069, 1084–
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86 (6th Cir. 1996); International Union of
Operating Engineers Local No. 68 Welfare
Fund v. Merck & Co., 929 A.2d 1076, 1086–
87 (N.J. 2007); Howland v. Purdue Pharma
L.P., 821 N.E.2d 141, 145–46 (Ohio 2004);
Clark v. Pfizer Inc., 990 A.2d 17, 27–28 (Pa.
Super. 2010), appeal denied, 13 A.3d 473
(Pa. 2010); In re Vioxx Class Cases, 103 Cal.
Rptr.3d 83, 98–101 (Cal. App. 2009), review
denied (Cal. March 30, 2010).
Consolidation in Product Liability
Advocating for a predominance test when
facing trial consolidation would reinforce
the position that consolidation in product
liability mass torts is virtually always a bad
idea. That courts have permitted consolidation in certain asbestos cases does not
make it right. Frequently, asbestos defendants did not preserve the consolidation issue for appeal, or their arguments failed
under restrictive mandamus standards.
Other defendants in other types of product liability litigation have a better track
record. Consolidating individual torts into
a mass tort when individual plaintiffs allegedly suffered injuries that occurred in
different places, at different times, and in
different ways “render[s] the label mass
tort into a self-­fulfilling prophecy.” In re
Repetitive Stress Injury Litigation, 11 F.3d
368, 373–74 (2d Cir. 1993) (granting mandamus to reverse consolidation). In finding
the mandamus standard met, the court in
Repetitive Stress made several perceptive assessments of consolidation: “A party moving for consolidation must bear the burden
of showing the commonality of factual and
legal issues in different actions,” and a trial
court “must examine the ‘special underlying facts’ with ‘close attention’ before ordering a consolidation.” 11 F.3d at 373 (internal
citations omitted). And “[a]l­though consolidation may enhance judicial efficiency,
‘consideration of convenience and economy
must yield to a paramount concern for a fair
and impartial trial.” Id. (quoting Johnson v.
Celotex Corp., 899 F.2d 1281, 1285 (2d Cir.
1990), cert. denied, 111 S. Ct. 297 (1990)).
The Second Circuit in Repetitive Stress also
commented that “it is possible to go too far
in the interests of expediency and to sacrifice basis fairness in the process.” Id. at 374
(quoting Malcolm 995 F.2d at 353).
In In re Van Waters & Rogers, Inc., 145
S.W.3d 203 (Tex. 2004), the Texas Supreme
Court receded from previously allowing
a number of rather questionable consolidations. It granted mandamus to reverse
the consolidation of 20 otherwise disparate plaintiffs’ cases claiming “toxic soup”
injuries from the same industrial facility:
[T]he most critical factors weigh against
consolidation…. [B]ecause the plaintiffs… were exposed to entirely different
chemical mixtures, the other dissimilarities involving disease and occupations
are magnified. Establishing a defendant’s
liability based on one plaintiff’s exposure
to a certain chemical combination will
not aid in establishing a different defendant’s liability for another plaintiff’s exposure to an entirely different mixture of
chemicals. Rather, it would only serve to
prejudice and confuse a jury…. Because
analysis of the evidence… demonstrates
that significant juror confusion and undue prejudice would result from a trial
of this particular group of twenty plaintiffs, we hold that the trial court abused
its discretion in consolidating this group
for trial.
Id. at 210. Accord Insolia v. Philip Morris Inc., 186 F.R.D. 547, 550–51 (W.D. Wis.
1998) (“[j]u­dicial resources are wasted, not
conserved, when a jury is subjected to a
welter of evidence relevant to some parties
but not others”; “prejudice [occurs] when
there are inadequate assurances that evidence will be weighed against the appropriate party and in the proper context”);
Grayson v. K-Mart Corp., 849 F. Supp. 785,
790 (N.D. Ga. 1994) (“any possible benefits
to be derived from a common trial are more
than offset by the confusion to the jury and
prejudice to the defendant from proceeding
with these cases jointly;” and “[t]here is a
tremendous danger that one or two plaintiffs unique circumstances could bias the
jury against defendant generally, thus, prejudicing defendant with respect to the other
plaintiffs’ claims”).
In prescription medical product mass
torts, consolidation is even more prejudicial to defendants because of the role played
by intermediary prescribing physicians:
“Physicians were responsible for implanting the devices at issue, and the warnings
and information given to them by the manufacturers and in turn, the warnings and
information given to each plaintiff by her
physician presumably will vary from pa-
tient to patient and from product to product.” In re Bristol-­Myers Squibb Co., 975
S.W.2d 601, 604 (Tex. 1998) (allowing that
consolidation was probably error but finding that the record did not support mandamus). The Mississippi Supreme Court has
reached the same conclusion repeatedly.
See Wyeth-­Ayerst Laboratories v. Caldwell,
905 So. 2d 1205, 1209 n.10 (Miss. 2005) (a
“trial of the seven plaintiffs’ claims against
the four doctors and [defendant] will inevitably result in… confusing presentation of
evidence”); Janssen Pharmaceutical, Inc. v.
Bailey, 878 So. 2d 31, 48 (Miss. 2004) (finding “little doubt” that in consolidating trials the trial court “created unfair prejudice
for the defendant by overwhelming the jury
with this testimony, thus creating confusion of the issues”); Janssen Pharmaceutica,
Inc. v. Armond, 866 So. 2d 1092, 1101 (Miss.
2004) (“the transaction or occurrence for
each underlying claim is each doctor’s prescribing [the drug] to each plaintiff”). See
also In re Levaquin Products Liability Litigation, 2009 WL 5030772, at *3–4 (D. Minn.
Dec. 14, 2009) (denying a motion by three
plaintiffs to consolidate trials in a multi-­
district litigation pending discovery as
improper due to different prescribing physicians notwithstanding plaintiffs’ threat
to call “nearly twenty generic witnesses”);
In re Baycol Products Liability Litigation,
2002 WL 32155269, at *2 (D. Minn. July 5,
2002) (finding the “same basic set of facts”
was absent as the plaintiffs “went to different doctors or teams of doctors and medical
facilities and providers”); Graziose v. American Home Products Corp., 202 F.R.D. 638,
640 (D. Nev. 2001) (severing plaintiffs because a court cannot join “separate cases”
they involved “separate physical conditions
and history, and, except for the expert witness on the effects of [the drug], separate
witnesses”); In re Consolidated Parlodel Litigation, 182 F.R.D. 441, 447 (D.N.J. 1998) (denying the plaintiffs’ motion to consolidate
cases because “predominance of individual… causation and marketing evidence”
precluded consolidation); In re Diet Drugs,
1999 WL 554584, at * 4 (E.D. Pa. July 16,
1999) (joinder of plaintiffs improper where
“plaintiffs [had] not purchased or received
diet drugs from an identical source, such
as a physician, hospital or diet center”);
Simmons v. Wyeth Laboratories, 1996 WL
617492, at *2 (E.D. Pa. Oct. 24, 1996) (sev-
ering claims because the pleadings did not
demonstrate that the claims arose from the
“same basic set of facts” and the only similarity among them was alleged injury from
the same drug); In re Bone Screws Products
Litigation, 1995 WL 428683, at *2 (E.D. Pa.
July 15, 1995) (finding that Fed. R. Civ. P.
20(a) “same occurrence or transaction” requirement was not “satisfied by the fact that
claimants have the same or similar device
of a defendant manufacturer implanted”);
Hasman v. G.D. Searle & Co., 106 F.R.D.
459, 461 (E.D. Mich. 1985) (denying consolidation in “cases involv[ing] different
warnings, different warranties and perhaps defects, and different inserting physicians”). These cases demonstrate how much
of an outlier the contrary decision in Obtape, discussed above, truly is. Obtape, 2010
WL 797273 (M.D. Ga. 2010 Mar. 3, 2010).
Experience and precedent demonstrate that consolidated multi-­plaintiff
trials inherently favor plaintiffs, practically guarantee jury confusion, make trials
longer and more complicated, and create
unnecessary appellate issues. Compared to
bellwether trials, they do not provide additional useful case valuation information,
and indeed consolidation garbles whatever
predictive information that the trial might
otherwise produce. No two mass tort plaintiffs are alike. Even if they suffer similar
injuries, they will have exposures that differ in intensity and duration. They will have
different medical histories and preexisting
risk factors. Pharmaceutical plaintiffs may
or may not have complied with physicians’
orders. Each will have different doctors
who prescribed a product for different reasons specific to that plaintiff’s unique medical condition. Each prescriber will have
a different degree of experience with and
knowledge about a drug, and he or she will
have obtained that knowledge from different sources that may or may not include a
defendant’s warnings, and he or she may
not have discussed a drug’s characteristics
with a drug’s sales representative.
Consolidation and Punitive Damages,
Unconstitutional Together
Finally, under current Supreme Court precedent, consolidating plaintiffs’ cases for
trial when plaintiffs assert punitive damages claims is quite likely a per se constitutional violation. In Philip Morris v.
Williams, the Court held that due process
prohibits imposing punitive damages that
are not specifically tied to the defendant’s
conduct towards a particular plaintiff: “a
jury may not… use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited
on nonparties.” 549 U.S. at 355. The Court
was clear: “We did not previously hold ex-
Under current Supreme
Court precedent,
consolidating plaintiffs’
cases for trial when plaintiffs
assert punitive damages
claims is quite likely a per
se constitutional violation.
plicitly that a jury may not punish for the
harm caused others. But we do so hold
now…. [W]e believe the Due Process Clause
prohibits a State’s inflicting punishment for
harm caused strangers to the litigation.” Id.
at 356–57. All plaintiffs in mass tort litigation are “strangers” to one another’s cases in
the sense that the word is used in Williams.
Under Williams, courts are supposed
to protect defendants’ due process rights
in cases involving punitive damages, not
deliberately put them at risk: “the Due
Process Clause requires States to provide
assurance that juries are not asking the
wrong question, i.e., seeking, not simply
to determine reprehensibility, but also to
punish for harm caused strangers.” Id. at
355. The Court hesitated to put courts in
a strait-­jacket by requiring them to follow
specific due process protective procedures:
“Although the States have some flexibility
to determine what kind of procedures they
will implement, federal constitutional law
obligates them to provide some form of
protection in appropriate cases.” Id. at 357
(emphasis original).
Whatever more Williams might require,
at the bare minimum, it seems to state that
Consolidation, continued on page 82
For The Defense September 2011 33
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Consolidation, from page 33
courts are not permitted to adopt procedures that make the due process violation
at issue in Williams—a verdict awarding
punitive damages on the basis of harm to
“strangers”—more likely to occur. Consolidation creates potential due process violations that could not otherwise exist. A
consolidation order deliberately makes
things worse, from a due process perspective, by ensuring that juries hear, in each of
the consolidated claims that they consider,
evidence concerning harm to “strangers.”
As “it is constitutionally important for a
court to provide assurance that the jury
will ask the right question, not the wrong
one,” consolidating the punitive damages
claims of multiple plaintiffs is constitution-
82 For The Defense September 2011
■
■
ally infirm. Id. And “state courts cannot
authorize procedures that create an unreasonable and unnecessary risk of any such
confusion occurring.” Id. at 357.
Consolidation is the antithesis of the
procedural protections required by the
Court in Williams. Instead of minimizing the likelihood that a trial will lead
to improperly based punitive damages
award, consolidation instead creates that
very potential. “Judicial discretion is a legal
discretion and not a personal discretion; a
legal discretion to be exercised in conformity to the Constitution.” Smith v. Hooey,
393 U.S. 374, 377 n.5 (1969).
Conclusion
In opposing multi-­plaintiff trial consolida-
tions, defendants must take an unabashedly conservative position: stand athwart
the clanking judicial machinery of mass
torts and yell, “Stop in the name of due
process.” So-called “traditional” modes of
litigation “reflect far more than habit.” In
re Fibreboard, 893 F.2d 706, 710 (5th Cir.
1990). They “reflect the very culture of the
jury trial.” Id. at 712. Whatever efficiencies
might arise in the “ongoing struggle with
the problems presented by the phenomenon of mass torts,” complex, mass consolidations make a mockery of the word “trial.”
“It is called a trial, but it is not.” Id. It is up
to us to preserve the institution of the jury
trial as the founding fathers meant it to be.