There’s an awful lot of consolidated treatment of product liability cases these days. So when the plaintiffs in Jones v. Wright Medical Technology, No. 11-14432 (E.D. MI. June 19, 2012), argued that their case should be consolidated (under FRCP 42(a) and a local rule) with another that involved a “similar defect in the identically defective medical device, installed by the same surgeon at the same hospital, within a very short time of each other,” we half-expected the court to go along.
But, lo and behold, it didn’t. While the plaintiffs focused on a few similarities, the defendant pointed out the important differences:
Two different Plaintiffs, with different lifestyles, different ages, different heights and weights, implanted with two different products, with alleged injuries occurring nearly 1.5 years apart, in different states, treated by different doctors, in different hospitals. The evidence at trial will be vastly different.
Slip op. at 4-5. Also, the Jones case had a loss of consortium plaintiff, while the other case did not. The Court was swayed by these differences:
Here, the allegations are that two different devices, manufactured in different lots, broke in different ways. . . . Proving these claims will not require substantially similar evidence. It will require different evidence. (Likewise, proving the loss of consortium claims of Mrs. Jones will require establishing a set of facts wholly distinct from those relevant to the [plaintiff in the other case]).
Slip op. at 6 (quotation marks omitted).
These evidentiary differences are important in litigations and trials. They are often the difference between defeat and victory. As we all know, it matters that the product is different, that the plaintiffs are vastly different, that their injuries and circumstances are different.
Sure, plaintiffs want to consolidate the cases nonetheless. It will cut their costs and create an atmosphere that blurs the differences and hides the detail. For discovery, it usually means more. For trial, it means that evidence that isn’t admissible against one plaintiff comes in anyway because it’s admissible against the other. Juries may reach a verdict for one plaintiff based on evidence relevant only to the other. And juries are more likely to feel something must have been wrong because more than one person is complaining. And so the risk of undue prejudice to the defendant rises along with the chances of a plaintiff victory. We’ve posted about these problems before.
Possibly most important, the very existence of a consolidated proceeding encourages more cases. “People will come, Ray. People will most definitely come.” And so the point at which there are just a few cases and consolidation is requested can be critical. It can mean the difference between a few generally unrelated cases and a consolidated docket-full of cases. If you build it, they will come. And suddenly something that never really was, and never should have been, is created.
Or instead, like here, the court spots the differences and nips it in the bud.