Breaking Up is Easy to Do

We all know how easy it is to complain about bad decisions. Right now, sports pundits and fans are holding a gripeathon about the National Football League 's replacement referees. There has been more talk about the officiating mistakes than about the athletic performances. A sense of perspective is in order.　 The comparison baseline is not perfection. It is not as if the regular referees got all their calls right. Does anybody remember Ed Hochuli (actually a very good ref who is also a Phoenix attorney) incorrectly calling a deadball? 　And who stared at the Steelers-Seahawks Super Bowl in disbelief a couple of years ago, as every call of consequence went against Seattle? Still, there is no denying that the replacement refs have authored an amazing number of egregious errors already in only three weeks of football. The blown call at the end of the Monday night game (it benefitted the Seahawks, so some are saying Karma is at work, though it is hard to see why Karma would hose the Packers) is prompting some fans to call for a boycott. If either Obama or Romney could step up and do something about the referee lockout, he'd probably help his election campaign big time. He would certainly get Wisconsin's electoral votes.

One of the most interesting things about the replacement referee situation is the substitute teacher syndrome. Did you ever have a substitute teacher in elementary school who seemed sort of weak or clueless?　 Wouldn't the class end up becoming incredibly disruptive? Even the kids who were ordinarily well-behaved started acting like delinquents. We remember back in seventh grade one of the star students hoodwinking a substitute teacher into thinking that his name was Billy Paul. Billy Paul was an R&B singer .　 More specifically, he was a practitioner of 　TSOP -The Sound of Philadelphia. Billy Paul’s big hit was "Me and Mrs. Jones." The teacher was puzzled at how the rest of us howled in laughter when she would scream in exasperation, "Billy Paul, get back in your seat!" "Billy Paul, you leave that girl alone!"　 After NFL week one, it seemed that many players had sized up the replacement refs as being like bad substitute teachers -- tentative and insecure.　 Just like 'Billy Paul,' the players took advantage.　 By 'took advantage,' we mean that the players started perpetrating all sorts of mayhem on their opponents.　 Things got chippy.　 One especially devious Ram delivered a nasty shot to a Redskins receiver after a play was over.　 The aggrieved receiver responded by throwing the ball at the offender.　　 Bad idea.　 As so often happens, the ref saw the reaction, not the instigation.　 The receiver drew a penalty and backed his team up.　 The team's field goal attempt missed.　 Game over.　　　　

The substitute teacher syndrome is like the "broken glass" theory of policing. One of the most brilliant minds on governance and policing was James Q. Wilson, who died earlier this year. Some of us were lucky enough to take classes with Wilson, who was a dynamic speaker with an even more dynamic mind.　 Some labeled Wilson a neocon, but he was really a policy skeptic.　 He was a political scientist who liked to get his fingernails dirty with data.　 He wrote about groundbreaking analyses of poverty and bureaucracy.　 With all that, he was most famous for his writings on crime.　 Wilson was brilliant on that topic, and he managed to make a difference.　 Wilson wondered why people commit crimes.　 Crime is a disease in the body politic.　 It is an odd disease, because it is a product of human choice.　 Most people do not choose crime.　 Some do, they do so repeatedly, and they betray the social contract.　 Wilson found that people are far more likely to make that destructive choice if they are in an environment that welcomes destruction.　 If a window was broken in a neighborhood, and was not repaired, that appearance of disorder sent a message that disorder was okay. Crime rates would be higher in such areas. Wilson recommended that cops arrest people for quality-of-life crimes (disorderly conduct, etc.) and help create an appearance of order in the community. That approach, plus a relentless use of statistics (CrimeStat), seemed to play a significant role in reducing crime rates in American cities.　 (Yes, we know there are other theories about that as well, including the controversial Freakonomics argument that increasing abortions led to decreasing crime.　 We are not touching that one.)　

We wonder whether the substitute teacher or broken glass theory applies to litigation. If courts permit sloppy, absurd practices, they ineluctably invite more. Our home turf, the Philadelphia Court of Common Please, has been taking a beating for its pro-plaintiff, anti-business court system. We do not agree with all of the criticisms, but it is undeniable that when a judge explicitly invites plaintiffs to engage in litigation tourism, when the court as a matter of course makes nutty venue/forum non conveniens rulings, and when it allows plaintiff lawyers to cobble together multi-plaintiff cases that maximize prejudice against corporate defendants -- well, as Wilson showed, chaos begets chaos.　 Pretty soon, Philadelphia's City Hall (which houses the Court of Common Pleas civil cases) rang out a clickety-clack of cowboy boots, and if you yelled 　"Roll Tide!" in the hallways, you'd probably get at least a couple of high-fives.　 Nevertheless, as an article in Monday's Wall Street Journal showed, there's a new sheriff in town.　 Judge Herron has implemented many changes in the Philly courts, including a rule against consolidating plaintiffs in tort cases.　 That is a welcome reform and it is a big deal.　 We get how plaintiffs are supposed to be the master of the complaint, but the plaintiff lawyer is not supposed to be the master of the court docket.　 When plaintiff lawyers self-consolidate multiple plaintiffs into a tort action, they create an artificial case with a perfect plaintiff who gets in every piece of corporate conduct and other evidence -- an array of awfulness that would not come in with a single plaintiff.　 It stacks the deck and is unfair to defendants.　 It is also unfair to the courts.　 The consolidated cases are not only a method of beating defendants into settlements, they are also a method of beating the court out of the extra filing fees for separately filing plaintiff.　 Courts are noticing all this.

So today's post is not a complaint at all.　 Instead, we celebrate how courts are starting to get things right on joinder and severance issues.　 Philly has taken a step in the right direction.　 Other courts are taking similar steps.　 We offer a tip of the cyber cap to Mike Imbroscio for sending us a recent severance victory in the Accutane MDL.　 The particular case is called Aranda v. Hoffman-Laroche, Inc., No. 8:12-cv-1426-T-30TBM (M.D. Fla. Sept. 20, 2012), and we have written about it before.　 It has, to say the least, a peculiar history.　 The case was originally filed on behalf of 69 plaintiffs alleging injuries from Accutane.　 It was filed in a state court with a hellholish reputation as bad as Philly.　 But after a little fact-checking made clear that the plaintiffs’ effort to stymie diversity was phony, the case ended up in federal court.　 Post MDL, the defendant moved to sever the plaintiffs.　 In a refreshing and straightforward opinion, the court granted the motion and severed the cases.

First, the plaintiffs’ joinder was flat-out inappropriate under Fed. R. Civ. P. 20(a).　 The plaintiffs resided in different states, allegedly ingested Accutane at different times, and were allegedly diagnosed with different adverse reactions to Accutane.　 (Note the word "allegedly."　 Based on the discovery provided by the plaintiffs, their Accutane use and adverse reactions was by no means established.)　　　 Thus, the plaintiffs' claims did not arise "out of the same transaction, occurrence, or series of transactions or occurrences."　 Fed. R. Civ. P. 20(a).　 There were different Accutane warnings at different times, which would necessarily have a profound effect on liability issues, and could potentially confuse juries confronted with multiple plaintiffs.　 Second, the Aranda court emphasized that "[m]any federal courts hold that product liability cases are generally inappropriate for multi-plaintiff joinder because such cases involve highly individualized facts and '[l]iability, causation, and damages will ... be different with each individual plaintiff.'" Aranda, slip op. at 1, quoting In re Prempro Prods. Liab. Litig., 417 F. Supp. 2d 1048, 1059-60 (E.D. Ark. 2006).　 The Aranda court also cites supporting precedent from the Silica, Diet Drug, Baycol, and Rezulin litigations.　　 Third, the cobbling together of different plaintiffs with different claims and, no matter how much the plaintiff lawyers pretend otherwise, different legal theories, would "likely hamper the orderly, efficient, and expeditious handling of the plaintiffs' claims as the litigation progresses."　 Tesfaye Abebe v. Takeda Pharmaceuticals (In re Actos Prod. Liab. Litig.), No. 6:11-md-02299 (W.D. La. May 3, 2012　 The motion to sever in Aranda was brought under Rule 21, which relates to misjoinder of parties.　 That rule makes clear that severance can be granted "[o]n motion or on its own, the court may at any time, on just terms add or drop a party."　 Fed. R. Civ. P. 21.　 The Aranda court cited both Rule 21 "and the Court's inherent authority to control its own docket."　 Aranda, slip op. at 2.　　 Fourth, the court ordered that each "severed plaintiff shall also pay a filing fee to the Clerk of the Court." 　Id. At 3.　 For some plaintiff lawyers, that last bit hurts the most.　 　　

　

The Aranda severance adds to a growing list of courts that are putting a stop to improper mass tort self-consolidations.　 As we said earlier, it is easy to complain about bad decisions.　 It turns out that it is even easier to praise good ones.　　　　　　　

Nipping It in the Bud (or Don't Build It and They Won't Come)

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.

Splitting Up Isn't Hard To Do

Sorry about not posting anything yesterday.  What can we say?  We got busy.

We're still busy today, but we can't leave our readers in the lurch twice in a row.

We've railed about the unfairness of consolidated trials - that is, where a court forces a defendant to trial against a motley crew of plaintiffs with nothing in common save claims that they were injured by the same product - at length before.  We're content with that post stating all the many policy and practical reasons why such consolidations are prejudicial to the defense of cases (which is why plaintiffs seek them and some courts allow them), difficult for jurors to make sense of, and otherwise a bad idea.

In that vein we applaud the decision in Johnson v. Advanced Bionics, slip op., 2011 WL 1323883 (W.D. Tenn. Apr. 4, 2011), which ordered the severence of two previously joined cases for trial.  If, as in Johnson, it's improper to try two same-device cases together, then it's even worse to mash three, five, or even ten different plaintiffs' cases into the same three-ringed circus of a trial.

Both the plaintiffs (a "Johnson" group and a "Purchase" (that's the plaintiff's last name) group) claimed to be injured by the defendant's cochlear (that's part of the inner ear) implants.  There was a recall, and predictably enough suits were filed.  Both plaintiffs had been implanted with the same implant not quite 18 months apart by different doctors in different hospitals.  The failure of each implant was investigated by the defendant and blamed on the same (recalled) component, which allegedly let moisture into what was supposed to be a watertight product.  2011 WL 1323883, at *2.

Why exactly these two plaintiffs' cases were originally consolidated isn't clear.  Since they both have the identical docket number, our guess is that their lawyer tried to save on filing fees by lumping them together.

The first issue that contributed to the severence order was the defendant's position that the type of leak in each case was different - one involving a "traditional" (that is, the general problem that caused the recall), and the other a different, unusual and harder to detect type of leak.  2011 WL 1323883, at *4.  Plaintiffs blustered that the leaks were the "same," but there was a disputed issue of fact.  That "dispute alone" justified separate trials, since to consolidate on this bases amounted to deciding the dispute about failure type in the plaintiffs' favor.  Id.  One leak is apparently a conceded defect, while the other is not, thus:

A joint trial would conflate this evidence, risk confusion of the liability issue, and invite the jury to conclude that [defendant's] admission as to [one] device applies equally to [the other] device.  Given this disputed evidence over a key issue, there is a significant risk that [defendant] would be prejudiced by a joint trial,

Id.

The almost 18 month time difference between the two plaintiffs' implantation dates was also a factor weighing in favor of severence.  Thus, a lot of evidence admissible in the later case wouldn't be permissible with respect to a jury's evaluation of the earlier case, either logically (because events that hadn't happened yet simply aren't relevant), or legally (where the later events would be subsequent remedial measures).  The court held that it would not be realistic to instruct a jury to unring a bell and not pay attention to evidence that, in a separate trial, would never have been admissible in the first place.  2011 WL 1323883, at *5 n.6.  Moreover, the primary defense to the "traditional" leak case appears to be state of the art, the entire issue would be irrelevant to a case where the leak had a different cause.  Id. at *5.

The two plaintiffs also had dramatically different damages, one having suffered virtually no developmental delay (these were infant implants), but the other claimed significant delay.  2011 WL 1323883, at *6.  While that might not have been enough, standing alone, these differences only heightened the need for separate trials.  Id.

The prejudice inherernt in a consolidated trial was not outweighed by "judicial economy."  The factual differences not only introduced a strong potential for prejudice, but also reduced any degree of time saving.   2011 WL 1323883, at *6.

In this age, where plaintiffs seek to flood courts with filings and then seek to use sheer numbers to induce courts to take procedural shortcuts that prejudice defendants and impinge on their right to a fair trial, it's refreshing to find an opinion reconfirming a fundamental premise of our judicial system - that each case is different and justice is best dispensed individually.