Opposing Trial Consolidation in Product Litigation

Transcription

1 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 He has written over 50 amicus curiae briefs on product liability issues for PLAC. 28 For The Defense September DRI. All rights reserved.

2 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 (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 (M.D. Ga 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 multidistrict 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 (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

3 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 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 twentyseven 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 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

4 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 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]n fair 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]on siderations 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]vi dence 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 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 For The Defense September

5 PRODUCT LIABILITY Experience and precedent demonstrate that consolidated multiplaintiff trials inherently favor plaintiffs, practically guarantee jury confusion and create unnecessary appellate issues. 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 issues 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, (8th Cir. 2008); Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180, (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, For The Defense September (6th Cir. 1996); International Union of Operating Engineers Local No. 68 Welfare Fund v. Merck & Co., 929 A.2d 1076, (N.J. 2007); Howland v. Purdue Pharma L.P., 821 N.E.2d 141, (Ohio 2004); Clark v. Pfizer Inc., 990 A.2d 17, (Pa. Super. 2010), appeal denied, 13 A.3d 473 (Pa. 2010); In re Vioxx Class Cases, 103 Cal. Rptr.3d 83, (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, (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]l though 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, (W.D. Wis. 1998) ( [j]u dicial 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-

6 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 , at *3 4 (D. Minn. Dec. 14, 2009) (denying a motion by three plaintiffs to consolidate trials in a multidistrict 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 , 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 , 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 , at *2 (E.D. Pa. Oct. 24, 1996) (severing 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 , 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 (M.D. Ga 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. Under current Supreme Court precedent, consolidating plaintiffs cases for trial when plaintiffs assert punitive damages claims is quite likely a per se constitutional violation. 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 explicitly 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 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

7 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 constitutionally 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. 82 For The Defense September 2011