Be Careful What You Ask For

November 12, 2012

In In re Abbott Labs., Inc, 2012 U.S. App. LEXIS 21387 (7th Cir. Oct. 16, 2012), the Seventh Circuit recently held that, by moving to consolidate numerous state court product liability cases under Illinois Supreme Court Rule 384, the plaintiff had implicitly proposed a joint trial of these cases, warranting their removal to federal court pursuant to the ‘mass action’  provision of the  Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d)(11)(B)(i).

The litigation included ten Illinois state court lawsuits, involving hundreds of plaintiffs, alleging injuries due to the prescription drug Depakote.[1] The lawsuits had been originally filed in three separate counties, and the plaintiffs moved to consolidate them in St. Clair County.  The Illinois Supreme Court never ruled on plaintiff’s motion to consolidate.  Nevertheless, Abbott, which opposed consolidation, removed the cases to the Northern and Southern Districts of Illinois, based upon the assertion that the motion for consolidation caused the cases to become a “mass action” under CAFA.  When plaintiffs moved to remand, the Southern District court granted the motion, finding that the plaintiffs had not proposed a joint trial. However, the Northern District came to the opposite conclusion.  Both sides appealed these conflicting decisions.

In order to resolve this split, the question that the Seventh Circuit had to answer was whether “a motion to consolidate and transfer related state court cases to one circuit court through trial constitutes a proposal to try the cases jointly, thus triggering the ‘mass action’ provision of [CAFA].”

In pertinent part, CAFA states:

(11)(B)(i) As used in subparagraph (A), the term “mass action” means any civil action (except a civil action within the scope of section 1711(2) [28 USCS § 1711(2)]) in which monetary relief 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, except that jurisdiction shall exist only over those plaintiffs whose claims in a mass action satisfy the jurisdictional amount requirements under subsection (a). 28 U.S.C. § 1332(d)(11)(B)(i) (emphasis added).

Plaintiffs denied that they proposed a joint trial, and argued that the consolidation would have no effect on how the trials were conducted—individual trials would still occur—and the cases would merely be coordinated through trial.  The Seventh Circuit disagreed, holding that plaintiffs’ motion to consolidate “did propose a joint trial, and thus removal was proper.”  The court based its finding on the premise that a proposal for a joint trial can be implicit, and the language of the plaintiffs’ motion came “very close” to expressly requesting a consolidated trial. More specifically, the court focused on the language in plaintiffs’ motion “requesting consolidation of the cases ‘through trial’ and ‘not solely for pretrial proceedings.’”  Therefore, because plaintiffs proposed consolidation “through trial” (citing the risk of “inconsistent adjudication” as a reason), the litigation constituted a “mass action” under the statute.

The court acknowledged that mass tort cases “are never tried in their entirety, and instead ‘bellwether’ claims are selected by the parties and tried individually….”  However, the court held that the motion could be “reasonably construed…as a proposal for a joint trial,” and “[i]t does not matter whether a trial covering 100 or more plaintiffs actually ensues; the statutory question is whether one has been proposed.”  In other words, the court will not concern itself with the minor issue of whether or not a joint trial is even possible, so long as it finds that one was implicitly proposed.

Moreover, through this ruling, the court arguably extended federal jurisdiction (under CAFA) beyond litigation in which a “joint trial” has been proposed.  Indeed, the court opined that even an “exemplar trial” could be considered a joint trial under CAFA:

We agree with Abbott that it is difficult to see how a trial court could consolidate the cases as requested by plaintiffs and not hold a joint trial or an exemplar trial with the legal issues applied to the remaining cases. In either situation, plaintiffs’ claims would be tried jointly.  (emphasis added)

The court’s opinion would arguably provide federal jurisdiction whenever a plaintiff’s motion to consolidate proposes exemplar or bellwether trials which could potentially decide issues applicable to a larger group of cases.  The court did not pause to discuss the fact that the entirety of the “claims” could not possibly be determined jointly in an exemplar trial—only certain issues or arguments shared by the plaintiffs.

Even accepting the court’s determination that, in this case, the plaintiffs’ ambiguous language (proposing consolidation “through trial”) should be considered a proposal for a joint trial, there is simply no support in the statute itself for the idea that an exemplar trial could constitute a “joint trial” allowing removal under CAFA.  Indeed, the plain language of the statute requires a proposal for the cases to be “tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact.”  In other words, the “common questions of law or fact” are simply a basis for the joint trial—but a proposal for a joint trial is still necessary, and the mere existence of common questions of law or fact are not enough, by themselves, to convey federal jurisdiction.

Finally, the court discussed, but did not adequately distinguish, its previous holding in Koral v. Boeing, Co., 628 F.3d  945, 947 (7th Cir. 2011).  In Koral, in response to a motion to dismissed based upon forum non convenience, the plaintiff argued that trial in Illinois would not overly-inconvenience Washington-based witnesses because “there likely would be only one exemplar trial to determine liability.”  Boeing then removed the case, under CAFA, based upon plaintiff’s argument that a single trial could determine liability as to all of the plaintiffs.  However, in Koral, unlike In re Abbott Laboratories, the court determined that plaintiffs had not sufficiently proposed a joint trial, stating: “[w]e think the plaintiff’s statement falls just short of a proposal, as it is rather a prediction of what might happen if the judge decided to hold a mass trial.”  In In re Abbott Laboratories, the court simply concluded that Koral supports its holding because it recognized that the “proposal for a joint trial can be implicit.”  The court did not address the fact that the “joint trial” language at issue in Koral was at least as explicit and intentional as the plaintiffs’ unintentional “proposal” for a joint trial in In re Abbott Laboratories—yet in Koral the court found removal to be improper.

In the end, the lesson to be taken away is: in order to avoid removal under CAFA when requesting consolidation of product liability cases (under Illinois Supreme Court Rule 384, or otherwise), the motion should explicitly state that plaintiffs are not proposing a joint trial.  Indeed, due to the recent dicta in In re Abbott Laboratories, it may even be necessary to specifically state that plaintiffs are not, through their motion to consolidate, proposing that exemplar or bellwether trials be conducted.  Anything short of that may allow a court to construe the motion as an implicit motion for a joint trial, allowing removal under CAFA.


[1] The drug Depakote (semisodium valproate) ,is prescribed to treat depression, epilepsy and migraines, and has some serious side effects including severe birth defects, potential liver damage, hallucinations and unusual dreams.


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