Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Shively v. Ethicon Inc.

United States District Court, W.D. Louisiana, Monroe Division

June 1, 2018

TERI KEY SHIVELY, ET AL.
v.
ETHICON, INC., ET AL. CHARLENE LOGAN TAYLOR
v.
ETHICON, INC., ET AL.

          ELIZABETH E. FOOTE JUDGE

          MEMORANDUM ORDER

          KAREN L. HAYES UNITED STATES MAGISTRATE JUDGE

         Before the undersigned magistrate judge, on reference from the District Court, are correlative motions to consolidate [doc. #s 338 & 346] filed by plaintiffs in two related medical device cases, Shively v. Taylor, No. 17-0716 and Taylor v. Ethicon, No. 17-0721, respectively. Defendants oppose the motions to consolidate [doc. #s 340 & 348], and filed requests for oral argument [doc. #s 341 & 349] regarding the issue in each case. Upon consideration, the motions to consolidate are granted, and the motions for oral argument are denied.[1]

         Law

         Rule 42(a) of the Federal Rules of Civil Procedure provides that, “[i]f actions before the court involve a common question of law or fact, the court may: (1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay. Fed.R.Civ.P. 42(a). Rule 42(a) is permissive and consolidation lies within the discretionary authority of the court. In re Air Crash Disaster at Florida Everglades on December 29, 1972, 549 F.2d 1006, 1013-1014 (5th Cir. 1977) (citations omitted). “Rule 42(a) should be used to expedite trial and eliminate unnecessary repetition and confusion.” Miller v. U.S. Postal Serv., 729 F.2d 1033, 1036 (5th Cir. 1984).

         In weighing consolidation, courts consider numerous factors, including

whether the actions are pending before the same court; the actions involve a common party; any risk of prejudice or confusion will result from consolidation; any risk of inconsistent adjudications of common factual or legal questions will result if the matters are tried separately; consolidation will reduce the time and cost of trying the cases separately; and the cases are at the same stage of preparation for trial.

Varnado v. Leblanc, No. 3:13-00348, 2016 WL 320146, *2 (M.D. La. Jan. 25.2016).

         “[I]t is for the court to weigh the saving of time and effort that consolidation would produce against any inconvenience, delay, or expense that it would cause.” Daybrook Fisheries, Inc. v. American Marine Const., 1998 WL 748586, *2 (E.D. La. 10/19/1998) (quoting 9 Wright & Miller, FEDERAL PRACTICE AND PROCEDURE, § 2383 at 439 (2nd ed.1995)). Consolidation is properly denied where suits are at different stages of preparation, the transactions forming the basis of the suits are entirely separate, or where consolidation would prejudice the rights of the parties involved. See Mills v. Beech Aircraft Corp., Inc., 886 F.2d 758, 762 (5th Cir. 1989); Alley v. Chrysler Credit Corp., 767 F.2d 138, 140 (5th Cir. 1983); and St. Bernard Gen. Hosp., Inc. v. Hos. Serv. Ass'n of New Orleans, Inc., 712 F.2d 978, 989-90 (5th Cir. 1983). It bears repeating, however, that “[f]ederal district courts have very broad discretion in deciding whether or not to consolidate.” Frazier v. Garrison I.S.D., 980 F.2d 1514, 1532 (5th Cir.1993) (citing 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2383 (1971)).

         Discussion

         Applying the foregoing considerations to the present circumstances, the court initially remarks that the two cases originally were filed in this district, but were subsequently transferred, by order of the Judicial Panel on Multidistrict Litigation, to the Southern District of West Virginia for inclusion in MDL 2327, In Re: Ethicon, Inc., Pelvic Repair System Products Liability Litigation. On or about May 8, 2017, the MDL court remanded both cases to this district, where they currently are scheduled to be tried before the same judge only three weeks apart. The same defendants are present in both cases, and counsel for all parties are equivalent. Also, the same physician implanted the allegedly defective medical device(s) in both plaintiffs during a six month period in 2008. Both plaintiffs assert claims for resulting injuries from the devices, and both had their implants partially surgically removed. Both plaintiffs seek recovery under the Louisiana Products Liability Act for design defect, inadequate warning, and nonconformity to express warranty, plus other claims.[2]

         To be sure, and as defendants ably pointed out, there are some differences between the plaintiffs that will require distinctions to be made and preserved at trial. Moreover, the court is not indifferent to the risk of prejudice that defendants potentially face by permitting plaintiffs to cumulate their respective causes of action against them. However, plaintiffs contend that both sides intend to offer evidence of similar incidents in both cases.[3] Therefore, whether the matters are consolidated or not, the jury(ies) still may be exposed to evidence of injuries suffered by other women from these devices. Moreover, there is every reason to expect that segregation of the claims by counsel during the presentation of trial testimony, together with cautionary instructions to the jury by the court, will help alleviate any potential prejudice to defendants.

         Relatedly, defendants opaquely assert that the court must remain cognizant of their due process rights. Defendants may rest assured that the court is aware of defendants' rights, and they remain free to urge the court to take appropriate protective measures at trial to address their concerns. However, they cannot in good faith contend that consolidation of these cases is unconstitutional per se. As plaintiffs pointed out in their brief, at least two courts of appeal have affirmed decisions to consolidate transvaginal mesh cases for trial. See Eghnayem v. Boston Sci. Corp., 873 F.3d 1304, 1314 (11th Cir.2017); Campbell v. Boston Sci. Corp., 882 F.3d 70, 74 (4th Cir.2018). Indeed, in Campbell, the court noted the need to ensure that the parties received a fair trial, but then concluded that the trial court took sufficient steps to limit juror confusion or prejudice, and was well within its discretion to consolidate the cases for trial. See Campbell, supra. In so holding, it stressed that

[b]oth plaintiffs and defendants benefit from lessened litigation costs and the reduced need for expert testimony. Witnesses benefit from reduced demands on their time by limiting the need for them to provide repetitive testimony. The community as a whole benefits from reduced demands on its resources, including reduced demand for jurors. The judicial system benefits ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.