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Ethicon Media Monitoring 11/01/16
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Trial Bundling Comes Under Fire In Boston Scientific Appeal
Oct 31, 2016 | Law 360
By Cara Salvatore
Bundling cases for trial has become a favored tool of judges shepherding intractable multidistrict litigation, but Boston Scientificand others are starting to push back, arguing that the efficiency of the process is outweighed by the confusion of mixing cases that are not identical.
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Trial Bundling Comes Under Fire In Boston Scientific Appeal
Oct 31, 2016 | Law 360
By Cara Salvatore
Law360, New York (October 31, 2016, 11:25 AM EDT) -- Bundling cases for trial has become a favored tool of judges shepherding intractable multidistrict litigation, but Boston Scientificand others are starting to push back, arguing that the efficiency of the process is outweighed by the confusion of mixing cases that are not identical.
Pelvic-mesh maker Boston Scientific recently opened an Eleventh Circuit appeal focusing squarely on the idea that grouping encouraged an unfair outcome. Four women who claimed that the company's Pinnacle Pelvic Floor Repair Kit caused infection, organ perforation, nerve damage and chronic pain were awarded a total of $27 million.
The company maintains that any efficiency in bringing a key expert or explaining a baseline concept only once, rather than four times, was “grossly overwhelmed” by the confusion of mixing four sets of facts in one fishbowl.
Similar complaints have simmered in hip MDLs in New Jersey state court and Texas federal court against J&J's DePuy unit. And in late September, the Illinois federal judge overseeing mass Depakote litigation for the first time decided to turn to bundling. Abbott Labs, the maker of Depakote, has given no formal indication as yet of its view toward the change, and did not respond to multiple requests for comment.
But the practice is indisputably controversial.
“Fundamental fairness requires each case to rise or fall on its own merits,” says Molly Craig of Hood Law, whose firm is involved in the defense of the Boston Scientific mesh litigation and who agreed to speak generally about the practice of bundling rather than specifically about any particular case.
“This process runs the risk of having a jury’s decision influenced by evidence that would not be admitted in that individual’s stand-alone case,” Craig says, and cultivates “due process concerns for all involved.”
But judges also cite due process in gathering cases together. A number have come out with declarations that justice would be thwarted for thousands absent the measure.
It's partially a response to changing times and changing magnitudes of plaintiffs, says Aimee Wagstaff of Andrus Wagstaff, a co-lead plaintiffs’ attorney in the J&J power morcellator MDL.
“Twenty years ago, 30 years ago, the advertising was not as sleek and effective as it is now. [With more plaintiffs], new tools are having to be used and be implemented, and judges are having to think outside the box in ways that they haven’t done before,” Wagstaff said.
There are eight open MDLs with more than 4,000 plaintiffs, according to mid-October data from the Judicial Panel on Multidistrict Litigation. At least one, Fresenius GranuFlo, has reached a tentative settlement and is expected to wrap up.
U.S. District Judge Joseph Goodwin, the person in charge of almost 66,000 pelvic-mesh cases in West Virginia — against seven companies including Boston Scientific — has said that bundling gives the parties a much better sense of their cases' strengths and weaknesses.
In Illinois federal court, U.S. District Judge Nancy Rosenstengel, overseeing 700 Depakote cases without any end in sight, was even more pointed in a September order.
"Batching cases together along common issues of fact and law is the only way to effectively, efficiently, and justly move through the volume of cases before the court," the judge said, vowing to "resolv[e] as many common issues as possible for as many plaintiffs with each trial.”
In Texas, yet another judge is wielding bundling liberally: U.S. District Judge Ed Kinkeade, in charge of the 8,800-plaintiff DePuy metal-on-metal hip MDL.
Judge Kinkeade is in the middle of the third bellwether trial, but started out with a one-plaintiff case.
Judges often do that to get an idea of the evidentiary issues that may come up, says Ellen Relkin of Weitz & Luxenberg, who's closely involved in DePuy ASR one-piece hip litigation and on the plaintiffs' steering committee for the Xarelto MDL.
For the second bellwether, Kinkeade ramped up to five plaintiffs in a case called Aoki, and for the current, third bellwether, there are six plaintiffs.
Johnson & Johnson and DePuy have not hidden their frustration with those decisions as they appeal the $150 million Aoki verdict to the Fifth Circuit.
“Consolidation was undertaken here with zero case-specific analysis, indicating error at a level so fundamental as to be of broad significance to future decisions regarding consolidation,” they told the appeals court in July.
The companies also cited "the prejudicial and confusing nature of consolidated personal injury trials, which have the tendency to unfairly bolster the impression to juries that a product is defective merely because more than one plaintiff is alleging injury.”
Relkin says she can understand what makes defendants want to ignore the court's and public's interest in avoiding duplicative litigation and making sure thousands of waiting plaintiffs actually move forward in line.
“The reason why they hate it is they’re concerned that the jury is going to say, 'Oh my God, all these people' — [that] just because they're together it’s going to bolster each individual case,” Relkin says.
“But there’s been enough evidence” that that doesn't happen, she says. For example, in mass litigation over Accutane, there were trials that ended in verdicts where some plaintiffs won and some plaintiffs lost.
“There are ways to bundle it intelligently,” Relkin says. "You’re never going to have a case where everything is identical, [but defense teams] come up splitting hairs: 'This is different and that's different.' Plaintiffs are going to have different genes, you know. Duh.”http://www.law360.com/articles/856589/trial-bundling-comes-under-fire-in-boston-scientific-appeal
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