William M. Janssen
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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
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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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