United States District Court, W.D. Louisiana, Monroe Division
TERI KEY SHIVELY, ET AL.
ETHICON, INC., ET AL. CHARLENE LOGAN TAYLOR
ETHICON, INC., ET AL.
ELIZABETH E. FOOTE JUDGE
L. HAYES UNITED STATES MAGISTRATE JUDGE
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.
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).
weighing consolidation, courts consider numerous factors,
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).
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 §
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.
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. 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.
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 ...