Little in Common: Opposing Trial Consolidation in Product ... - Dechert

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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 defendants’ 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
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 30 ■ For The Defense ■ September 2011 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
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Little in Common: Opposing Trial Consolidation in Product ... - Dechert

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