We’ve blogged several times in opposition to consolidation of individual plaintiffs’ lawsuits in product liability actions. The only thing that plaintiffs seeking consolidation for trial have in common is that: (1) they were allegedly injured by the same product, and (2) they are trying to salvage weak cases by attempting to prejudice the defendants’ defense. Strong plaintiffs’ cases stand on their own, so why bother with consolidation?

One thing we know about mass torts, through years of experience, is that for lots of reasons most individual cases in any given mass tort are poor, as in weak. So consolidation requests show up frequently in mass torts. One of the busiest mass torts currently is Aredia/Zometa, so it’s no surprise to find consolidation attempts there. The only question is whether the courts will throw these plaintiffs the lifeline they’re seeking. Happily, that doesn’t seem to be happening.

The first consolidation attempt, in Guenther v. Novartis Pharmaceutical Corp., 2012 WL 5398219 (Mag. M.D. Fla. Oct. 12, 2012), adopted 2012 WL 5305995 (M.D. Fla. Oct. 29, 2012), failed because the two plaintiffs involved “filed their claims separately years apart, did not use the same [defandant’s] products, allegedly used [those] products at different times, have different medical and dental histories, were treated by different physicians, have identified different expert witnesses . . ., are pursuing different legal theories under different laws, and seek different damages.” Id. at *1. That's pretty typical of attempted consolidations.

Compared to these differences, having the same generic plaintiffs’ experts (also typical) didn’t even come close. Prior trials established that “these cases turn on case-specific witnesses.” Id.at *2. Even in the MDL:

[The] Panel has repeatedly rejected attempts to consolidate cases for trial and has ordered multi-plaintiff case complaints be severed because the claims of individual plaintiffs were not suited for consolidation.

Id. The plaintiffs had even sought consolidation while at the same time arguing that different state laws applied. Id. That’s chutzpah (and even worse than typical - that bespeaks desperation). Nor did the precedent support consolidation.

Many federal courts hold that product liability cases are generally inappropriate for multiplaintiff joinder because such cases involve highly individualized facts and liability, causation, and damages will be different with each individual plaintiff.

Id. (citation and quotation marks omitted). See also Dopson-Troutt v. Novartis Pharmaceuticals Corp., No.: 8:06-CV-1708-T-24-EAJ (N.D. Fla. Oct. 16, 2012) (following Guenther in denying similar request.

Subsequently, another pair of A/Z plaintiffs tried again in Bowles v. Novartis Pharmaceuticals Corp., 2013 WL 663040 (S.D. Ohio Feb. 25, 2013). Again they drew back a nub. Alleging the same injury from the same general type of product simply isn’t (or shouldn’t be) enough to justify joint trials. In Bowles the court found consolidation improper because of critical factual differences. There were lots of them (treatment by different doctors; different underlying medical histories; different risk factors for the alleged injury), but most important was a consideration that we have emphasized– timing differences make it impossible to apply the state of the art defense and to enforce the exclusion of subsequent remedial measures:

Perhaps the most important difference, however, is that [one plaintiff] was prescribed [the drug] in 1997, years before any links between [it] and ONJ were documented in medical journals and years before [the defendant] included any warnings about ONJ on the drug labels. In contrast, [the other plaintiff] was prescribed [the drug] in 2005, after the links between the drugs and ONJ were well-known and after warnings were included on the drug labels. Therefore . . . with respect to the questions of what [the defendant] knew and whether the warnings given were adequate, much of the corporate evidence admissible in one case would be irrelevant and prejudicial in the other. Having fully considered the parties’ position, the Court finds that the risks of prejudice and juror confusion substantially outweigh the benefits of consolidating these two cases for trial.

2013 WL 663040, at *1-2 (emphasis added).

An eight year prescription difference between consolidated cases? Bowles is as blatant a bootstrap attempt to shore up a weak case as we’ve ever seen on this kind of motion. Fortunately, it did not succeed, and the end result is more favorable precedent to defeat consolidation motions going forward.

Postscript: Good precedent is precisely what the A/Z defense team is looking for right now. Good precedent inflicts legal pain on the other side. Ideally, it remains long after the litigation itself is over, reducing the value/viability of future plaintiffs' cases. To win a mass tort after MDL remand, which is the goal in A/Z, requires this type of overhang as a factor in inducing a ultimately reasonable settlement. We know; we did this in Bone Screw (think Buckman, Maestas, Talley, and quite a few others from the late 1990s early 2000s), and it's not easy because the hordes keep coming. It doesn't really matter what the specific issue is, good precedent is good precedent. It's what we like to see.