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As any trial lawyer knows, the number of parties to a trial affects the dynamics of a mass torts case. For example, although a jury in a single-plaintiff case might scrutinize evidence of causation and consider alternative causes of the plaintiff’s medical condition, the same jury might be more prone to find causation when presented with many plaintiffs whose only common features are exposure to a substance and their similar medical conditions. The rules of civil procedure give federal and state judges enormous leeway to manage their dockets by consolidating or severing parties for trial. But recent cases highlight the fact that this discretion is far from unbounded. Indeed, these decisions caution that trial courts must examine closely the impact that consolidating-or refusing to sever-parties will have on the jury’s deliberations and the overall fairness of the trial. Texas’ high court reverses a consolidation ruling Just last month, the Texas Supreme Court took the extraordinary step of granting mandamus�without hearing oral argument�on a challenge to a trial court’s consolidation of 20 plaintiffs’ claims for trial against nine defendants. In re Van Waters & Rogers Inc., 2004 WL 1966021 (Texas Sept. 3, 2004). The plaintiffs had described Van Waters as a “toxic soup” case. They alleged that while working at a plant that manufactured O-ring seals, the plaintiffs’ exposure to mixtures of different chemicals caused them to suffer a large variety of symptoms. Although the trial would have involved only nine defendants, the complaint originally had named 55 defendants whose chemicals were used at the plant. It also included 454 plaintiffs. The court acknowledged that mandamus typically does not lie from a trial court’s decision to hold a consolidated trial “[b]ecause most consolidation orders do not threaten a defendant’s substantial rights.” Id. at 5. Here, however, the court found that juror confusion and prejudice were “almost certain, and it would be impossible for an appellate court to untangle the confusion or prejudice on appeal.” Id. In evaluating whether consolidation is appropriate, the court explained, ” ‘the dominant consideration . . . is whether the trial will be fair and impartial to all parties.’ ” Id. at 2 (citation omitted). If the jury will be unable to find facts on the basis of the evidence, either because of confusion or prejudice, then an injustice will result from consolidation and the “ trial court ‘has no discretion to deny separate trials.’ ” Id. (citation omitted). In reaching its decision, the Texas Supreme Court applied a nine-factor test to evaluate consolidating workplace exposure claims: whether the plaintiffs shared a common work site; whether the plaintiffs shared similar occupations; whether the plaintiffs had similar times of exposure; whether the plaintiffs have a similar type of disease; whether the plaintiffs are alive or deceased; the status of discovery; whether all plaintiffs are represented by the same counsel; the type of cancer alleged, if any; and the type of products to which the plaintiffs were exposed. Id. at 2. It dubbed this test “the Maryland factors” because, as explained in a prior opinion, the test was derived from a federal asbestos decision from Maryland. See In re Ethyl Corp., 975 S.W.2d 606, 611 (Texas 1998). The Van Waters court also added another threshold issue: “the maturity of the mass tort.” Id. Previously the Texas Supreme Court had adopted Professor Francis McGovern’s definition of a “mature” mass tort: “[A] mature mass tort [is] one in which “there has been multiple jury verdicts, and a persistent vitality in the plaintiffs’ [contentions]. Typically, at the mature stage, little or no new evidence will be developed, significant appellate review of any novel legal issues has been concluded, and at least one full cycle of trial strategies has been exhausted.” In re Bristol-Myers Squibb Co., 975 S.W.2d 601, 603 (Texas 1998) (citation omitted). In Van Waters, that clearly was not the case for the plaintiffs’ “toxic soup” theory, which had never been tried before in Texas. Van Waters, 2004 WL 1966021, at 2. Accordingly, the court concluded that because the tort was immature, the trial court had “less discretion to consolidate dissimilar claims and must proceed with extreme caution.” Id. In effect, the immaturity of the tort caused the court to give closer scrutiny to the Maryland factors. In analyzing the first factor-the common work site-the court explained that its purpose was to establish similarity of exposures so as to simplify proof of product identification. Although the plant at issue was one “work site,” it had many different buildings and separately ventilated areas where different mixtures of chemicals were used. The court concluded that juror confusion “is likely because the twenty different plaintiffs will necessarily offer proof of exposure to different chemicals that occurred in different parts of the plant, leading to a spider web of causation evidence.” Id. at 3. The second factor-similar occupations-also is designed to establish the similarity of exposures. Here, the plaintiffs indisputably had dissimilar occupations and were exposed to different combinations of chemicals. Thus, “[n]ot only would jurors be forced to keep track of various exposure levels, but the jury would also need to follow the varying exposures to the fifty-five original defendants’ chemicals and the many more chemical combinations used at different work sites.” Id. The third factor-the time of exposure-was complicated by the fact that the dates of exposure ran for a period of 13 years, during which time the chemicals used at the plant had changed. Also, the length of exposure differed substantially among the plaintiffs. The fourth factor-similarity of injury-also clearly weighed against consolidation. The 20 plaintiffs complained of more than 55 ailments, and none had identical symptoms. More importantly, these were not “signature injuries” with a single, identifiable cause; their symptoms had many possible etiologies. The court found that the remaining factors weighed in favor of consolidation. Nevertheless, it concluded that “because the plaintiffs worked at what were effectively different work sites, and thus were exposed to entirely different chemical mixtures, the other dissimilarities involving disease and occupations are magnified.” Id. at 5. The court listed some of the dangers that these differences presented for the jury. The jury might use the sheer number of claims to find against the defendants. Or it might rely on evidence admissible as to one plaintiff to decide for or against another. And the jury clearly would have difficulty keeping straight the parties’ competing theories of exposure and causation when there were 55 original defendants that supplied chemicals to the work site. Id. In the end, the court held that any judicial economy achieved by the consolidation would be “overwhelmed by the greater danger an unfair trial would pose to the integrity of the judicial process.” Id. at 6. Texas is not the only state to have wrestled with these issues. The Mississippi Supreme Court recently issued a series of opinions rejecting the consolidation of products liability suits involving the drug Propulsid, which was prescribed to treat gastroesophageal reflux disease. These decisions emphasized that fundamental fairness is implicated in consolidation because “there is an innate danger in asking jurors to assimilate vast amounts of information against a variety of defendants and then sort through that information to find what bits apply to which defendant.” Scott v. Janssen Pharmaceutica Inc., 876 So. 2d 306, 308 (Miss. 2004). The Mississippi Supreme Court previously had declared that the Propulsid suits do not arise out of the same transaction or series of transactions that would allow permissive joinder under Mississippi’s rules of civil procedure. Janssen Pharmaceutica Inc. v. Armond, 866 So. 2d 1092 (Miss. 2004). The court noted that in a trial of 56 plaintiffs’ claims, the jury would be forced to weigh each plaintiff’s unique medical history. The Mississippi Supreme Court subsequently was presented with a case study in just the kind of prejudice it had predicted in Armond. Janssen Pharmaceutica Inc. v. Bailey, the first Propulsid case tried in Jefferson County, had been a 10-plaintiff trial. 878 So. 2d 31 (Miss. 2004). The plaintiffs had different medical histories and physicians, were prescribed the drug at different times with different warnings and asserted different injuries. They also asserted medical expenses that ranged from zero to more than $100,000. Despite these differences, “the jury took only two hours after a four week trial to award each Plaintiff $10 million.” Id. at 48. The court contrasted the verdict with the results of the second and third trials of Propulsid claims in that county, which were both single-plaintiff trials. There, the juries expressly found that Propulsid had not caused the plaintiffs’ deaths. Id. Mississippi Supreme Court reverses joinder rulings The Mississippi Supreme Court reversed the judgment in Bailey, finding that the joinder of 10 plaintiffs in the same trial was improper because each plaintiff’s claim arose from individual facts and circumstances. Id. Additionally, just a few weeks ago, the Mississippi Supreme Court applied this same reasoning to order a trial court to sever the claims of two Propulsid plaintiffs that had been joined for trial. See Culbert v. Johnson & Johnson, 2004 WL 2110580 (Miss. Sept. 23, 2004). As these recent cases demonstrate, before a consolidated trial of mass torts claims can occur, courts must carefully scrutinize the effect that consolidation will have on the jury’s ability to weigh the evidence fairly. Particularly when causation is a key issue or when the tort is otherwise not mature, consolidation may be an abuse of discretion that appellate courts increasingly are going out of their way to correct. J. Russell Jackson is a partner in the complex mass torts and insurance litigation group of New York-based Skadden, Arps, Slate, Meagher & Flom.

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