Group Justice? - Pharmaceutical Executive

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Group Justice?
Legal moves that lump pharma cases together are bad for justice and bad for the industry.


Pharmaceutical Executive



William M. Janssen
The mantra that "everyone is entitled to his or her day in court" has become a harder promise to keep—particularly in the context of pharmaceutical and medical device litigation where dockets are large, new filings are up, and trials can be long. In search of innovative ways to manage this growing inventory of pharma and device lawsuits, courts have experimented with two new methods for pruning their case loads: plaintiff joinders and case consolidation. Although courts are not uniform in their evaluations of these methods, two recent and well-reasoned decisions have rejected such trial "grouping" procedures because they risk juror confusion and mischief, and thus present serious prejudice for pharma and medical device defendants. The courts' recent recognition of these dangers is a welcome development.

How They Work Both plaintiff joinders and case consolidations allow for the combined trial of the claims of various plaintiffs at one time, in the same court, before the same jury, hearing all the same evidence.

Plaintiff Joinders. This procedure is initiated by plaintiffs and their attorneys. Rather than file many separate lawsuits, a group of litigants can try to join together in the same case and file one large, multiparty lawsuit. To qualify for this joinder, the participating plaintiffs must assert a right that: (1) arises out of "the same transaction, occurrence, or series of transactions or occurrences," and (2) includes at least one "question of law or fact common to all." Even when these two criteria are present, the courts still retain the discretion to deny the joinder if it "will result in prejudice, expense or delay."


Why Pharma Cases Are Unique
Case Consolidation. This process may be initiated either by the litigants or the court itself. In a consolidation, the various lawsuits have already been filed but the court determines that the cases shall proceed together to trial. Before cases may be consolidated, they must involve "a common question of law or fact." Consolidation is permitted "as a matter of convenience and economy in judicial administration." Judges may properly deny a consolidation "if the common issue is not a central one" or if consolidation "will lead to confusion or prejudice in the management or trial of the case."

Reasons for Rejection Fortunately for pharma, many courts have expressed their reservations with the grouping of medical product cases. (See "Why Pharma Cases Are Unique.") In the Rezulin (troglitazone) litigation, one court denied joinder after noting that the combining plaintiffs may have experienced different reactions (and different injuries) depending on a wide variety of variables, including their own personal exposures to the drug, their physical conditions while taking the drug, "and a host of other known and unknown factors that must be considered at trial with respect to each individual plaintiff."

Another court expressed its concern that given the amount of separate, patient-specific medical and product information that the jury would have to carefully compartmentalize, a trial that grouped multiple cases together "would compress critical evidence of specific causation and marketing to a level which would deprive [the defendant] of a fair opportunity to defend itself." Still another court wrote of its reservations: "It is possible jurors considering a particular plaintiff might be prejudiced by the evidence presented on behalf of the other plaintiffs, since they would be permitted to hear allegations of defects and adverse reactions not relevant to the particular plaintiff's case."

A research study into juror reactions to grouped plaintiffs corroborates these fears. The study concluded that the consolidation of plaintiffs for trial purposes "yields outcomes that differ from those obtained when each individual received a separate trial." The study determined that jurors have great difficulty understanding complex trial evidence and compartmentalizing the evidence they hear. "The net effect," wrote the researchers, "is that evidence for one trial issue contaminates the judgment of the other trial issues." For example, the study found that the presence of a claimant with particularly severe injuries tended to inflate the awards of all other claimants because jurors surmised that this claimant foretold the fate that awaited the others. It would seem then that trial groupings of unique claimants in drug and device cases ought to be atypical and regularly rejected by the courts. While that is often the case, it is not universally so.


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