Litigation Tourists and Multi-Plaintiff Cases in All the Wrong Places Kelly A. Evans Evans Fears & Schuttert LLP 2300 West Sahara Avenue, Suite 1130 Las Vegas, NV 89102 kevans@efstriallaw.com
Kelly A. Evans practice is focused on product liability litigation and, in particular, defending medical device and pharmaceutical companies. Mr. Evans has successfully tried numerous cases in both federal and state courts across the United States. He earned his law degree with honors from Duke University.
Litigation Tourists and Multi-Plaintiff Cases in All the Wrong Places Table of Contents I. Introduction...5 II. Fight to Get Out of Judicial Hellholes...5 III. Vigorously Oppose Multi-Plaintiff Trials...5 IV. Structure a Consolidated Trial to Create a More Level Playing Field...6 V. Fighting in the Trenches...7 VI. Conclusion...7 Litigation Tourists and Multi-Plaintiff Cases in All the Wrong Places Evans 3
Litigation Tourists and Multi-Plaintiff Cases in All the Wrong Places I. Introduction This presentation covers practical tips for litigating multi-plaintiff cases, including (1) strategies to get out of judicial hellholes, (2) key arguments to make to avoid consolidation, (3) the merits of bifurcating certain trial issues, and (4) real-world examples of fighting in the trenches in these challenging cases. II. Fight to Get Out of Judicial Hellholes Outright dismissal of an action based on the doctrine of forum non conveniens represents the best possible outcome. The Supreme Court of the United States first recognized this doctrine in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), and applied it in the products liability context in Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). Under Gilbert, dismissal will ordinarily be appropriate where trial in the plaintiff s chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice. Piper Aircraft, 454 U.S. at 249. Further, dismissal may be warranted where a plaintiff chooses a particular forum, not because it is convenient, but solely in order to harass the defendant or take advantage of favorable law. Id. at 249 n.15. The court must weigh both the private interests and public interests that affect the convenience of the selected forum. Factors relating to the private interests of the parties include the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses;... and all other practical problems that make trial of a case easy, expeditious and inexpensive. Id. at 241 n.6 (quoting Gilbert, 330 U.S. at 508). Public factors pertaining to the question of convenience include the administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home;... the avoidance of unnecessary problems in conflict of laws,... and the unfairness of burdening citizens in an unrelated forum with jury duty. Id. at 241 n.6 (quoting Gilbert, 330 U.S. at 509). Many courts have dismissed drug cases under the doctrine of forum non conveniens after analyzing the above factors. See, e.g., Avery v. Pfizer, Inc., 68 A.D.3d 633, 634, 891 N.Y.S.2d 369 (1st Dep t 2009) (dismissal warranted where the plaintiff, prescribing physicians, and other witnesses were all located out-of-state, and plaintiff s ingestion of the drug took place in another state.); Matter of Oxycontin II, 76 A.D.3d 1019, 1020-21, 908 N.Y.S.2d 239 (2d Dep t 2010) (dismissal of 246 cases involving nonresident plaintiffs where witnesses with critical information on both proximate cause and damages [did] not reside in New York ). III. Vigorously Oppose Multi-Plaintiff Trials Rule 42 provides for consolidation of actions involving common questions of law or fact. See Fed. R. Civ. P. 42(a). Courts are vested with broad discretion to consolidate cases if doing so will promote economy of time and effort for itself, for counsel, and for litigants. Landis v. American Co., 299 U.S. 248, 254 (1936). In order to effectively oppose consolidation of multi-plaintiff cases, defense counsel should thoroughly educate the court regarding the prejudices involved and the risk of an unfair trial. Although consolidation may enhance judicial efficiency, [c]onsiderations of convenience and economy must yield to a paramount concern for a fair and impartial trial. In re Repetitive Stress Injury Litig., 11 F.3d 368, 373 (2d Cir. 1993) (quoting references omitted). Litigation Tourists and Multi-Plaintiff Cases in All the Wrong Places Evans 5
Multi-plaintiff cases often present common types of unfair prejudice that threaten to derail a fair trial. First, the mere existence of multiple plaintiffs bolsters plaintiffs causation theories, which in turn skews the importance of each case. See Dal-Briar Corp. v. Baskette, 833 S.W.2d 612, 617 (Tex. Ct. App. 1992), abrogated on other grounds by In re Schmitz, 285 S.W.3d 451 (Tex. 2009) (stating that the jury could decide that because [two] plaintiffs alleged the same wrongs, there must be some misdeeds by [the defendant] based upon sheer numbers ). Further, the presence of multiple plaintiffs often blurs the case-specific facts and inflates the causal significance of the product at issue. Therefore, consolidation should be denied when cases involve some common issues but individual issues predominate. Hasman v. G.D. Searle & Co., 106 F.R.D. 459, 460-61 (E.D. Mich. 1985) (denying motion to consolidate because each plaintiff had unique medical and social histories making consolidation confusing, unmanageable and perhaps inequitable. ); Graziose v. Am. Home Prods. Corp., 202 F.R.D. 638, 641 (D. Nev. 2001) (ordering severance of six pharmaceutical product liability cases that involve[d] separate discovery, separate claims, separate damages, separate defendants, separate medicine, separate physical conditions and history, and, except for the expert witness on the effects [of the alleged injury], separate witnesses ). Many courts recognize that it may simply be too difficult and confusing for a jury to separately analyze multiple-plaintiff cases. See, e.g., Bailey v. N. Trust Co., 196 F.R.D. 513, 518 (N.D. Ill. 2000) (expressing fear that in a consolidated trial the jury may simply resolve the confusion by considering all of the evidence pertaining to all the plaintiffs claims ); Cain v. Armstrong World Indus., 785 F. Supp. 1448, 1455 (S.D. Ala. 1992) ( It is evident (unfortunately, in hindsight) that despite all the precautionary measures taken by the Court (e.g., juror notebooks, cautionary instructions before, during and after the presentation of evidence, special interrogatory forms), the joint trial... of differing cases both confused and prejudiced the jury ). In practice, defense counsel should be mindful of the prejudices involved in multiple-plaintiff trials and seek to develop facts during discovery with an eye towards vigorously opposing consolidation and/or bringing a motion to sever. IV. Structure a Consolidated Trial to Create a More Level Playing Field If the Court nevertheless consolidates multiple plaintiffs for trial, counsel may consider filing a motion to bifurcate trial issues to create a more level playing field for the defense. Courts have found it both appropriate and judicially efficient to bifurcate products liability trials into phases. See, e.g., Angelo v. Armstrong World Indus., Inc., 11 F.3d 957, 964-65 (10th Cir. 1993); In re Bendectin Litig., 857 F.2d 290, 309 (6th Cir. 1988); Buttram v. Owens-Corning Fiberglas Corp., 16 Cal. 4th 520, 526, 941 P.2d 71, 74 (Cal. 1997); In re N.Y. Cty. DES Litig., 211 A.D.2d 500, 500, 621 N.Y.S.2d 332, 333 (1st Dep t 1995). Reverse bifurcation is one example of a phased trial that may be appropriate for drug and medical devices cases. This form of phased trial entails the jury considering medical causation and compensatory damages in the first phase. Then, during the second phase, the jury would analyze the company s liability for compensatory and punitive damages. There are several benefits to reverse bifurcation. First, it promotes judicial economy, because it could potentially shorten trial if one or more plaintiffs do not continue past the first phase. Second, it minimizes jury confusion, as it may be easier for the jury to evaluate evidence on separate portions of case. Third, it minimizes risk of unfair prejudice, because it restricts plaintiffs ability to inflame jury with bad company evidence during first phase, where only medical causation is decided. In addition to bifurcation, the defense has other potential motions and strategies to consider in its effort to level the playing field in multi-plaintiff trials. For example, counsel may consider filing a motion 6 Drug and Medical Device May 2017
for time limits at trial. The Court s inherent power to control trials includes the ability to set reasonable time limits for the presentation of witnesses and evidence. See, e.g., Navellier v. Sletten, 262 F.3d 923, 941 (9th Cir. 2001) ( Trial courts have broad authority to impose reasonable time limits to prevent undue delay, waste of time, or needless presentation of cumulative evidence ); see also United States v. Colomb, 419 F.3d 292, 299 (5th Cir. 2005) ( We have also recognized that a district court may impose reasonable time limits on the presentation of evidence and the examination of witnesses ). In general, time limits favor organized and disciplined defense counsel. More importantly, time limits keep plaintiffs from dominating trial time and curtail the presentation of bad company evidence. Finally, if there are multiple defendants, they may consider employing separate trial counsel to mitigate the appearance of being double-teamed by plaintiffs counsel during opening and closing statements, and throughout trial. V. Fighting in the Trenches This presentation will offer multiple real-world experiences regarding multi-plaintiff trials held in all the wrong places. In particular, recent trials in Clark County, Nevada demonstrate how savvy plaintiffs counsel can use an inventory of pharmaceutical cases to consolidate multi-plaintiff cases before plaintiff-friendly judges. Appropriately handling the voir dire process, including selecting a diverse jury, and employing the strategies discussed herein were instrumental to the defense team s success. VI. Conclusion Multi-plaintiff cases present many challenges at trial, particularly in plaintiff-friendly venues. In order to maximize the chances of success, counsel and the client should develop and employ a game plan from the start to finish of the case. The strategies and practical advice offered in this presentation will hopefully assist future defense teams in developing their game plans for tackling these daunting cases. Litigation Tourists and Multi-Plaintiff Cases in All the Wrong Places Evans 7