Dunson v. Cordis Corporation, Ninth Cir., 04/14/2017
Plaintiffs claimed that they were injured by a medical device made by Cordis Corporation. Between them, Plaintiffs filed eight separate actions in state court. Each case involved less than 100 plaintiffs; however, the aggregate number of plaintiffs in all eight actions exceeded 100. Plaintiffs moved to consolidate the actions for “for all pretrial purposes, including discovery and other proceedings, and the institution of a bellwether-trial process.” They told the state judge that this would help avoid inconsistent adjudications. The state court granted their request for consolidation; Cordis then removed the consolidated case to federal court under CAFA’s mass tort provision. The district court remanded the case. Held: Affirmed.
The Class Action Fairness Act (CAFA) provides more permissive removal provisions for certain class actions, and for certain mass actions as well. For CAFA, a “mass action” means those in which the monetary claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact.” 28 U.S.C. § 1332(d)(11)(B)(i).
Claims that are subject to a “bellwether trial” process, are not necessarily “tried jointly” for purposes of CAFA? There are two kinds of bellwether trials: Those that bind plaintiffs in other actions, and those that are used for strictly informational purposes. Only the first type of bellwether trial meets the requirements of § 1332(d)(11)(B)(i).
Where plaintiffs agree to a bellwether trial process, without saying more, the bellwether trial is not binding but informational. Here, plaintiffs didn’t say that “something more.” For example, merely agreeing to “consolidation” is not enough because, under California law, the parties can consolidate cases for pretrial purposes only. While plaintiff did ask for consolidation “to avoid inconsistent adjudications,” it was unclear whether plaintiffs were referring to inconsistent rulings at trial or inconsistent rulings on other pre-trial motions (like motions for summary judgment and motions in limine.)
Finally, Plaintiffs included this language in their motion for consolidation: “To be clear, Moving Plaintiffs are not requesting a consolidation of Related Actions for purposes of a single trial to determine the outcome for all plaintiffs, but rather a single judge to oversee and coordinate common discovery and pretrial proceedings.” That pretty much settles it.