Dunson v. Cordis Corporation, 2016 WL 5335551 (N.D. Cal. Sept. 23, 2016).

A district court in California remanded actions consolidated for purposes of pretrial discovery and formation of a bellwether trial process, finding the request for a nonbinding bellwether trial did not meet the joint trial requirement of CAFA’s mass action provision.

In Dunson v. Cordis Corporation, plaintiffs in 14 related state court actions related to defective medical device claims sought consolidation for purposes of pretrial discovery and formation of a bellwether trial process.  Based on the motion to consolidate, the defendant removed eight of those cases under CAFA’s mass action provision, claiming the motion proposed a joint trial. In response, the plaintiffs moved to remand.

At the very outset, the District Court observed that the motion to consolidate disclaimed any effort to seek a joint trial. The plaintiffs’ motion clearly stated the request for consolidation did not seek a single trial of all actions and only sought a single judge to oversee and coordinate common discovery and pretrial proceedings. The defendants, however, argued the plaintiffs’ request to institute a bellwether trial process went beyond pretrial matters and therefore contemplated a joint trial.

The District Court rejected that argument, observing that that a bellwether trial was not, without more, a joint trial within the meaning of CAFA under Briggs v. Merck Sharp & Dohme, 796 F.3d 1038 (9th Cir. 2015). In Briggs, plaintiffs in a consolidated proceeding had suggested using bellwether trials to test common issues, but did not seek a joint trial and sought to try all claims individually. In that case, the Ninth Circuit distinguished exemplary bellwether cases, which are nonbinding, from bellwether cases in which the issues tried will have a preclusive effect, and gave examples of cases in which requests for a bellwether trial did constitute a request for a joint trial. In one example, Atwell v. Boston Scientific Corp., 740 F.3d 1160 (8th Cir. 2013), the plaintiffs requested bellwether case selection, but also requested the court assign all consolidated cases to a single judge for purposes of both discovery and trial. (Editor’s Note: see the CAFA Law Blog analysis of Atwell posted on September 19, 2014). In another example, Bullard v. Burlington Northern Santa Fe Ry. Co., 535 F.3d 759 (7th Cir. 2008), the bellwether trial  of 10 exemplary plaintiffs was to have a preclusive effect on over 100 plaintiffs without another trial. (Editor’s Note: see the CAFA Law Blog analysis of Bullard posted on August 31, 2009). In both examples, the request for consolidation plainly encompassed both pretrial and trial proceedings, unlike in Briggs. For that reason, the Ninth Circuit concluded the Briggs plaintiffs had not requested a joint trial for the purposes of CAFA jurisdiction, emphasizing the plaintiffs’ explicit disavowal of that intent.

Despite the same explicit disavowal here, the defendant argued that the plaintiffs’ motion to consolidate nonetheless went beyond pretrial matters. Specifically, the defendant claimed the plaintiffs’ motion cited concerns with avoiding many of the same witnesses testifying on common issues, which the defendant argued could only be a reference to joint trial testimony.  The District Court, however, remarked that the plaintiffs explained in detail that their focus was on securing the deposition of corporate employees and reports from expert witnesses, and the intention was not joint trial.

Accordingly, the District Court concluded that it lacked jurisdiction under CAFA’s mass action provision and remanded the cases to the state court.

(Editor’s Note:  This opinion was affirmed by the Ninth Circuit.  See the CAFA Law Blog analysis of the Ninth Circuit opinion here).

— Kevin Lampone