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]