We have managed to pretty much avoid asbestos litigation.  Sure, we encounter decisions from asbestos cases that sometimes impact our own cases.  They even sometimes appear in our posts, but rarely as a focus.  We have been less successful in avoiding consolidation of drug and device cases for trial.  Some courts that tend to favor multi-plaintiff trials are informed by experience from asbestos litigation.  Plaintiff lawyers, informed by whatever past experience makes them think there is a route to bigger verdicts and bigger settlements, often favor consolidating cases for trial.  To us, the plaintiff preference seems driven by the prospect of a jury being more sympathetic to several plaintiff themes when there are multiple injured plaintiffs in front of them throughout trial, especially if having a sicker plaintiff in the mix will drive up damages for the rest.  Plus, notwithstanding limiting instructions, the breadth of liability evidence tends to expand with each plaintiff.  Meanwhile, courts seem to mostly consider their dockets, accepting as given that trying cases together will get the number of pending cases down faster than would trying cases individually.  We had a case sent our way on consolidation in asbestos litigation and, given a combination of a paucity of blogworthy cases, our interest in the subject, and an impending vacation, we decided to post on it.  

From In re: New York City Asbestos Litig., No. 190411/13, 2015 N.Y. Misc. LEXIS 2634 (N.Y. Sup. Ct., N.Y. Cty., July 24, 2015), we learned that there is a pretty developed law governing whether to consolidate asbestos cases for trial. Without really digging in, we would say that it is more developed and detailed than the law on consolidating drug or device cases for trial and offers some principles that might work fairly well for our cases.  NYCAL­—that is what we will call it—concerned whether to put together two plaintiffs in each of two trials based on six factors identified in Malcolm v. National Gypsum Co., 995 F.2d 346, 350-53 (2d Cir. 1993).  Not all the Malcolm factors will have a direct parallel to drug or device cases, but they are a good start:  1) common or similar worksite, 2) similar occupations, 3) same exposure period, 4) same disease, 5) living or dead plaintiffs, and 6) extent of overlap between defendants.  Beyond the enumerated factors, though, the court should consider both judicial economy and the “paramount concern for a fair and impartial trial.”  2015 N.Y. Misc. LEXIS 2634, *9 (citation omitted).  In a well-expressed quote from another asbestos case, “The systemic urge to aggregate litigation must not be allowed to trump our dedication to individual justice, and we must take care that each individual plaintiff s - and defendant's - cause not be lost in the shadow of a towering mass litigation.”  Id. (citation omitted). 

Rather than simply accepting the idea that consolidation saves judicial resources, the defendants had statistics from nineteen recent consolidated and non-consolidated asbestos trials in the same jurisdiction, which showed that consolidated trials lasted much longer.  In the drug and device context, there are rarely enough trials with the same (or similar products) to make an exact comparison, but evidence tending to show that the efficiency claimed with consolidation does not show up in actual trials would be nice to have.  (We have had somewhat similar evidence in the context of reverse bifurcated trials, another procedure adopted from asbestos cases, to show that the bifurcation the defendant preferred actually does tend to shorten trials.)  The results from those nineteen recent asbestos trials also provided some evidence that consolidation is not so fair to the defendants.  In the individual trials, the defense won two-thirds of the trials and had about $4.4 million per plaintiff verdicts in the rest.  In the consolidated trials, the defense won one-tenth of the trials and had about $9 million per plaintiff verdicts in the rest. While a record of more defense-friendly results without consolidation is not necessarily the same as proof that consolidation does not result in a “fair and impartial trial,” having statistics like this to fend off consolidation in the drug and device context would be nice.  The court “duly considered judicial economy and efficiency,” but did not say how the statistics were weighed.  

As you would expect from the post so far, the consolidations were denied based on insufficient commonalities within each pair of proposed trial plaintiffs.  In the first pair, the claims of a living plaintiff were likely controlled by Michigan law and those of a dead plaintiff were controlled by New York law.  Both claimed the same disease, mesothelioma.  Each alleged exposure while in the Navy, but while working different jobs during different time periods.  Twenty of the twenty-four defendants do not overlap between the cases.  In the second pair, the same disease, lung cancer, was alleged by a living plaintiff and a dead plaintiff, both subject to New York law.  There was no commonality of their occupations, worksites, or exposure period, though.   What does this all mean for consolidation in drug and device cases?  On a Friday afternoon at the end of July, we are not sure.  We have certainly seen consolidation urged for larger groups of plaintiffs based on less commonality than these cases had—like all the plaintiffs from a certain state who sued at roughly the same time. And we do know that consolidation does tend to favor plaintiffs for all the wrong reasons.  So, maybe an order denying a request to consolidate two plaintiffs per trial in the litigation that helped spawn multi-plaintiff trials will maybe help a drug or device defendant defeat consolidation in its own case.  Maybe.