Torts Expert WitnessesIntroduction:

In the last few years, a number of torts, particularly in the product liability field, have arisen as consolidated cases with multiple plaintiffs as parties to one lawsuit  See, e.g., Andrew D. Kaplan, “Crowell & Moring’s Litigation Forecast 2019,” Crowell & Moring, Jan. 9, 2019, at https://www.crowell.com/NewsEvents/Litigation-Forecast/2019/Articles/Torts-Watching-the-Growing-Multi-Plaintiff-Challenge (last visited Feb. 6, 2019). A great deal of controversy has arisen over consolidated cases, and they are frequently challenged in court. See, e.g., Deborah R. Hensler, “No Need to Panic: The Multi-District Litigation Process Needs Improvement, Not Demolition,” George Washington University Roundtable, 2017, available at  https://www.law.gwu.edu/sites/g/files/zaxdzs2351/f/downloads/Deborah-Hensler-MDL-Paper.pdf (last visited Feb, 6, 2019). This article discusses 2019 trends pertaining to torts and product liability and the role of consolidated litigation.

Discussion:

As one attorney explains, “In the product liability arena, a growing number of multi-plaintiff trials are finding their way into consolidated litigation, including multidistrict litigation (MDL). Many see this bundling of plaintiffs as confusing to juries. But a number of courts are open to the strategy—and that is creating challenges for defendants.” Andrew D. Kaplan, supra.

A consolidated case exists when there are multiple plaintiffs in related suits. See id. Typically, a small number of plaintiffs are “selected for bellwether trials, where each plaintiff’s claims are heard separately.” Id. The handful of lawsuits serves as a sample to “provide test cases that can inform the litigation of the rest of the plaintiffs’ cases. Thus, if there were 1,000 plaintiffs with similar claims, five might be picked as being representative of the entire group and heard separately in a series of bellwether trials.” Id.

Plaintiffs in torts cases, and especially product liability lawsuits, may use bellweather trials to test the efficacy of their theories and then consolidate their litigation. See id. Of late, many plaintiffs have attempted to “lump cases together in one bellwether trial, with one jury hearing those multiple cases at the same time.” Id.

One reason for this trend is that plaintiffs attorneys may believe that it would be inefficient to try each case individually. See id. Furthermore, parties have another incentive to consolidate their lawsuits—there is the potential for tremendous damages, such as those awarded in a recent product liability case over talc in baby powder. See, e.g., id.

However, as one analyst argues, “For defendants, the multi-plaintiff approach creates significant challenges. Often, product liability lawsuits involve fairly complex information and arguments.” Id. Even in cases where the same product and type of injury is alleged, “there are real differences in each case that need to be analyzed by the jury.” Id.  To wit, “[f]or juries hearing a number of cases at once, it can be difficult to keep the separate cases and facts straight, or to clearly understand the nuanced differences across claims.” Id.

Another consideration is that cases with multiple plaintiffs can affect jurors’ perceptions. See id. For instance, despite unique circumstances for each plaintiff, juries commonly “return nearly uniform verdicts for all cases in a multi-plaintiff trial, even though the facts and claims differ among plaintiffs.” Id. There is a concern that jurors may be unable to make distinct and just assessments in cases with multiple plaintiffs. See id. This concern is supported by certain data about bellweather trials. See id. In one case against a manufacturer of hip implants, the first bellweather suit “was a single-plaintiff case…which ended with a verdict for the defense.” Id. In contrast, the second lawsuit had five plaintiffs, and a jury awarded $550 million to the plaintiffs. See id. A subsequent six-party trial resulted in a $1 billion award, and a recent consolidated action “produced a $247 million plaintiff verdict.” Id. These substantial awards have been noted by plaintiffs attorneys and have led to an increase in the number of consolidated cases, especially with pharmaceutical or medical device matters. See id.

What should be of particular interest to legal practitioners is how courts are dispensing with consolidated litigation. Although there is some disagreement, many courts seem willing to allow these cases, and two federal appellate courts have given approval to multi-plaintiff suits. See id. Litigators should pay close attention to this trend, and it is expected to continue. See id. As one commentator observes, “We will probably see more of a push for this in places where courts and jury pools tend to favor plaintiffs, such as St. Louis and certain jurisdictions in West Virginia, Illinois, Florida, and elsewhere. And if we see more courts allowing it, then plaintiffs will be encouraged to use this strategy even more.” Id.

Because of the controversy surrounding the issue, the apparent willingness of a number of judges to allow multi-party cases does not mean attorneys should take consolidation for granted. See id. One attorney mentions the possibility of a “judicial backlash against the use of multi-plaintiff trials.” Id. He argues that “there have been indications that some judges see problems with the practice.” Id. This claim is bolstered by a 2018 federal district court decision regarding product liability litigation for a medical device. See id. In that instance, the court felt the plaintiffs’ lawyers had “quickly expanded the plaintiff pool from 22 to 850 with ‘tag-along’ plaintiffs who had frivolous claims,” and the judge admonished the attorneys in the case that he might impose “sanctions if [the lawyers] brought more cases like that.” Id. The court issued a harsh reprimand and indicated a predilection to reject consolidation, urging “other judges to watch for these tactics in other consolidated trials.” Id.

 Conclusion:

It is uncertain what other courts will do and whose lead they will follow with respect to consolidation of torts. See id. Though many courts seem amenable to multi-plaintiff cases, others are not.

The best way for attorneys to resolve this matter entails using expert witnesses and researching a specific court’s bent (if any) on consolidation. Experts play an important role in this controversy. Many opponents of consolidation allege that multi-plaintiff litigation is inappropriate because it allows parties to “piggyback” on other plaintiffs, without the need to establish causation for more than one person. See, e.g., id. For plaintiffs attorneys, expert witnesses can demonstrate that causation exists for the larger group, not simply for one individual. For example, experts in product liability can provide evidence that a certain device produced a similar injury in multiple instances. The baby powder case, which was a consolidated multi-district suit, was so successful because the plaintiffs proved that the product caused a particular cancer in numerous women. See, e.g., Associated Press, “Nearly $4.7 awarded in Johnson & Johnson baby powder lawsuit,” reprinted in Chicago Tribune, Jul. 13, 2018.

For defense lawyers, experts can help persuade judges to reject consolidated cases. If expert witnesses can provide evidence for why causation does not exist with most or all of the plaintiffs in a multi-party suit, courts may deny consolidation. Experts who can show that some or many of the plaintiffs in such cases lack a basis for their claims, which are therefore frivolous, may be an invaluable asset to defense attorneys.

The second way for lawyers to stay on top of the consolidation controversy is to know and prepare for their particular judge’s opinions on the matter. Regardless of the circumstances in multi-plaintiff litigation, attorneys should be aware of whether the judge in the lawsuit has indicated a preference regarding consolidated lawsuits. After researching the court’s inclinations, lawyers can prepare to meet a judge’s terms for approving multi-party cases, or, alternatively, successfully oppose consolidation.

In every instance, litigators should consult with and utilize the testimony of experts to best ensure that arguments have a sound basis and will be as effective as possible. Many torts and product liability experts have vast experience with consolidated lawsuits and can speak to how specific cases should be dispensed with. By following judicial trends and using expert assistance, lawyers can stay ahead of the curve and increase the odds of favorable outcomes.