PBCBA BAR BULLETINS pbcba_bulletin_feb 2018 | Page 13

MASS TORTS C o r n e r The District Court Did Not Abuse Its Discretion in Consolidating Four Actions for Trial Because Common Issues of Fact and Law Far Outweighed Any Factual Differences “the similarities in these cases, particularly as to the claim of design defect,” outweighed the differences and warranted On October 19, 2017, Eghnayem v. Boston consolidation. Scientific Corporation, 2017 U.S. App. LEXIS 20432 (11th Cir. Oct. 19, 2017) post-remand The consolidated case was transferred consolidated transvaginal mesh trial was to the United States District Court for upheld on appeal after review and oral the Southern District of Florida. The argument, there was no error in the district consolidated plaintiffs all brought the court’s rulings. same four claims under Florida law, JOSEPH OSBORNE Though cases can be consolidated at both the federal and state level, many large-scale lawsuits are brought at the federal level. Rule 42 directly addresses consolidation, providing the parameters for when consolidation may be appropriate. Just because cases can be consolidated does not always mean that they will be consolidated. This, like much of litigation, is left up to the court’s discretion. Florida state court procedure also allows for consolidation of related cases for discovery and other purposes. Florida Rule of Civil Procedure 1.270 provides that: “When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Fla. R. Civ. P. 1.270(a). Amal Eghnayem and three other plaintiffs filed separate lawsuits against Boston Scientific Corporation in MDL 2326 -- In re: Boston Scientific Corporation Pelvic Repair System Products Liability Litigation -- in the United States District Court for the Southern District of West Virginia. They each sought compensatory and punitive damages based on claims for negligent design defect, negligent failure to warn, stri ct-liability design defect, and strict-liability failure to warn. These four cases were among several thousand product liability actions against Boston Scientific Corporation arising out of injuries from the Pinnacle Pelvic Floor Repair Kit (“the Pinnacle device”) The district court sua sponte consolidated the suits for all purposes, including trial. The court observed that, although “there will be separate evidence relating to failure to warn and individual damages,” arguing that Boston Scientific Corporation was both negligent and strictly liable for the Pinnacle’s defective design, and both negligent and strictly liable for failing to warn them of the resultant danger from the Pinnacle. After eight days of trial, the jury found for each plaintiff on all four claims, awarding more than six million dollars to each plaintiff. The Eleventh Circuit held, the district court did not abuse its discretion in concluding that the considerations surrounding consolidation supported joining these suits for trial. The plaintiffs all brought the same claims based largely on the same facts: Boston Scientific’s Pinnacle device was unreasonably dangerous by design, and Boston Scientific failed to include sufficient warnings with the device to alert physicians to that danger. Although each plaintiff’s proof of causation was necessarily different, generally differences in causation are not enough, standing alone, to bar consolidation of products liability claims. And any danger of prejudice arising from the consolidation was reduced, because the district court explained the consolidated nature of the trial to the jury and expressly instructed it to consider each plaintiff’s claims separately. Notably, this is not the first time we have affirmed the consolidation of products liability claims that require individual evidence of causation. Under Federal Rule of Civil Procedure 42(a), a district court may consolidate multiple actions that “involve a common question of law or fact.” A district court’s decision whether to consolidate is “purely discretionary.” Hendrix, 776 F.2d at 1495. In exercising its considerable discretion, the trial court must consider: Whether the specific risks of prejudice and possible confusion are overborne by the risk of inconsistent adjudications of common PALMBEACHBAR.ORG 13 factual and legal issues, the burden on parties, witnesses and available judicial resources posed by multiple lawsuits, the length of time required to conclude multiple suits as against a single one, and the relative expense to all concerned of the single-trial, multiple-trial alternatives. Id. (quotation omitted and alterations adopted). Moreover, “[t]he court must also bear in mind the extent to which the risks of prejudice and confusion that might attend a consolidated trial can be alleviated by utilizing cautionary instructions to the jury during the trial and controlling the manner in which the plaintiffs’ claims (including the defenses thereto) are submitted to the jury for deliberation.” Id. “A joint trial is appropriate where there is clearly substantial overlap in the issues, facts, evidence, and witnesses required for claims against multiple defendants.” Allstate Ins. Co. v. Vizcay, 826 F.3d 1326, 1333 (11th Cir. 2016) (quotation omitted and alteration adopted). But “[w]here prejudice to rights of the parties obviously results from the order of consolidation, the action of the trial judge has been held reversible error.” Dupont v. S. Pac. Co., 366 F.2d 193, 196 (5th Cir. 1966). “District court judges in this circuit have been urged to make good use of Rule 42(a) in order to expedite the trial and eliminate unnecessary repetition and confusion.” Young v. City of Augusta, 59 F.3d 1160, 1169 (11th Cir. 1995) (quotation omitted and alterations adopted). Mr. Osborne practices with the Boca Raton firm of Osborne & Associates in the area of complex civil litigation, including mass torts. He can be reached at [email protected]