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


Trial Grouping Allowed Among the decisions that have allowed trial groupings of drug and device cases, two arguments predominate. First, certain courts have reasoned that the mere presence of a common medical product alone supplies the necessary commonality to warrant joinder or consolidation. Second, courts have written that prejudice to a defendant, while possible, had not been adequately proven to the court's satisfaction. Under both arguments, groupings were permitted.

The argument that the common drug justifies grouping is often simply stated. The courts that follow that reasoning generally note the common product, perhaps cite the broadly applicable and liberally granted joinder or consolidation principles, and then approve the grouping. Little more is offered.

As for the argument regarding possible prejudice, the courts tend to acknowledge that the presence of litigation prejudice could prevent grouping, but they fault the defendant for failing to establish the prejudice more authoritatively. Sometimes the candor of the court is remarkable. For example, in one breast implant case, the Supreme Court of Texas noted the wide array of individualized factors that a jury would have to hear and keep organized on a plaintiff-by-plaintiff basis, including the varying warnings received from different physicians, the various characteristics of the differing manufacturers' products, and the variety of claimed injuries. The court explained that had the defendants "demonstrated that the disparities among the claims would actually affect the trial of the case and the evidence that the jury would consider, we would be inclined to agree with the manufacturers that a jury would be confused and that the parties would be prejudiced by a single trial of these nine claims." Yet, because defendants had failed to make such a demonstration, the challenge to consolidation was denied.

New Decisions Those advocating trial groupings in drug and device cases were delivered a setback this year by two rulings by the Supreme Court of Mississippi. Both findings were decided in the context of the drug Propulsid (cisapride), and both rejected the use of the joinder device for trial groupings. Notably, the court spoke broadly about perceived unfairness with grouping drug cases; therefore, its reasoning could well be extended to any grouping method and any prescription product.

In February, the Mississippi Supreme Court rejected the joinder of 56 plaintiffs in one lawsuit. The court held that the decisions by 42 physicians to prescribe Propulsid for these 56 claimants did not arise out of the same transaction or occurrence. Furthermore, it ruled that the joinder of the 56 claimants in the same case unfairly prejudiced the defendant. The court explained that each claimant constituted his or her own separate transaction, "each composed of individual facts and circumstances surrounding each patient's medical condition and history and each doctor's decision to prescribe Propulsid to the patient. Liability, causation, and damages inquiries will also be different with each individual patient."

On that record, the court was satisfied that the joinder trial grouping was entirely improper. The decisive language chosen by the court left little room for ambiguity. "Instead of fostering efficiency, such a trial would unavoidably confuse the jury and irretrievably prejudice the defendants," the court wrote. It particularly noted the evidentiary compartmentalization concerns and concluded that the "mass joinder of these claims will make it impossible for the jury to limit the evidence to the appropriate plaintiff and doctor relationship." The court then ordered that the grouping be undone and each case severed from the other, with all to proceed separately.

Three months later, at the close of a 10-plaintiff joinder case, the Mississippi Supreme Court overturned the first Propulsid verdict rendered in the United States. The original verdict had returned equal awards for each of the 10 joined plaintiffs, notwithstanding that each alleged different injuries, incurred different medical bills, and had different medical histories. The court observed that these identical awards, which were reached after just two hours of deliberations, constituted corroborating evidence of the improper joinder in the case.

These two decisions constitute current, well-written, and compelling indictments of trial groupings in drug and device cases. It is hoped that other courts that come upon this issue will now find a sturdy legal and analytical foundation for denying joinder and trial consolidation, and the age of trial groupings should now draw to a close. Swift justice is not good justice if it is unfair. Whatever merit a groupings approach may have in other types of litigation, it is fundamentally unfair in drug and device cases.

William M. Janssen is chair of the Life Sciences practice at Saul Ewing LLP. He can be reached at (215) 972-1967 or


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