Dunson v. Cordis Corporation, 854 F.3d 551 (9th Cir. 2017)
In this action, while affirming the judgment of a district court granting the plaintiffs’ motion to remand, the Ninth Circuit found that to constitute a trial in which the plaintiffs’ claims are “tried jointly” for purposes of § 1332(d)(11)(B)(i), the results of the bellwether trial must have preclusive effect on the plaintiffs in the other cases, as well.
The plaintiffs brought 14 related state court products liability actions against medical device manufacturer, Cordis Corporation in the Superior Court for Alameda County, California. The actions raised common questions of law and fact because they all sought damages for injuries caused by the same allegedly defective medical devices manufactured by Cordis.
Cordis removed eight of those products liability suits to federal court under CAFA’s mass action provision. Each of the eight actions had fewer than 100 plaintiffs, but together they involved more than 100 named plaintiffs. The district court held that the plaintiffs’ consolidation motion did not propose a joint trial of their claims as required under § 1332(d)(11)(B)(i), and granted the plaintiffs’ motion to remand. (Editor’s Note: See the CAFA Law Blog Analysis of the district court opinion posted on August 25, 2017). On appeal, the Ninth Circuit affirmed.
Cordis argued that the plaintiffs proposed to try their claims jointly when they moved in state court to consolidate the eight actions. In their motion, the plaintiffs requested consolidation of the actions “for all pre-trial purposes, including discovery and other proceedings, and the institution of a bellwether-trial process.” The question before the Ninth Circuit was whether the plaintiffs’ proposal for a bellwether-trial process amounted to a proposal to try their claims jointly.
The Ninth Circuit noted that two types of bellwether trials could be held when a large number of plaintiffs asserted the same or similar claims against a common defendant or defendants. In the first type, the claims of a representative plaintiff are tried, and the parties in the other cases agree that they will be bound by the outcome of that trial, at least as to common issues. In the second type of bellwether trial, the claims of a representative plaintiff or plaintiffs are tried, but the outcome of the trial is binding only as to the parties involved in the trial itself. The results of the trial are used in the other cases purely for informational purposes as an aid to settlement. The Ninth Circuit further noted that to constitute a trial in which the plaintiffs’ claims are “tried jointly” for purposes of § 1332(d)(11)(B)(i), the results of the bellwether trial must have preclusive effect on the plaintiffs in the other cases as well.
Cordis argued that the plaintiffs must have been proposing a bellwether trial whose results would have preclusive effect because they requested consolidation under California Code of Civil Procedure § 1048(a). According to Cordis, § 1048(a) does not permit consolidation solely for pre-trial purposes; thus, any request made under that statute must be construed as a proposal to try the plaintiffs’ claims jointly. The Ninth Circuit, however, found that nothing in the text of § 1048(a) precluded consolidation for pre-trial purposes only.
Cordis further argued that the plaintiffs’ references in their consolidation motion to “a bellwether-trial process” must have meant a trial that would have preclusive effect, because the plaintiffs also stated in the motion that creating such a process would “avoid the risk of inconsistent adjudications.” The Ninth Circuit found that consolidating the cases for pre-trial proceedings could, on its own, avoid the risk of inconsistent adjudications by eliminating the prospect of different judges rendering conflicting rulings on motions for summary judgment or motions in limine concerning the admissibility of key evidence. The Ninth Circuit thus found that the plaintiffs’ references to the avoidance of inconsistent adjudications did not necessarily shed light on which type of bellwether trial they were proposing.
Finally, Cordis argued that any uncertainty regarding what the plaintiffs meant by “inconsistent adjudications” was dispelled by the plaintiffs’ definition of that term: “different results because tried before different judge and jury, etc.” The Ninth Circuit, however, remarked that the definition appeared in a passage of the motion devoted to explaining the general purposes of consolidation, not the purposes for which the plaintiffs sought consolidation in this case. Additionally, the Ninth Circuit found that the plaintiffs immediately followed the definition with the disclaimer that they were 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 pre-trial proceedings.
The Ninth Circuit thus opined that the plaintiffs’ requested consolidation for purposes of pre-trial proceedings, standing alone did not trigger removal jurisdiction under CAFA’s mass action provision. The Ninth Circuit further opined that the plaintiffs also requested consolidation for purposes of establishing a bellwether-trial process, but nothing they said indicated that they were referring to a bellwether trial whose results would have preclusive effect on the plaintiffs in the other cases.
Accordingly, the Ninth Circuit held that the district court correctly held that removal jurisdiction did not exist under CAFA’s mass action provision, and affirmed the judgment of the District Court.
– Kevin Lampone