On April 2, 2021, PLAC filed a brief with the United States Supreme Court in Johnson & Johnson v Ingham
, No. 20-1223. PLAC’s brief urges the Court to grant review of a decision by the Missouri Court of Appeals holding that a consolidated trial of the claims of 22 asbestos-in-talc ovarian cancer plaintiffs did not violate due process. The trial resulted in identical $25 million compensatory damages awards and an omnibus $4.05 billion punitive damages award.
The Missouri court concluded any jury confusion or prejudice was presumed cured by the court’s instruction that the jury decide each case individually - even though those cases involved different exposures to different products in different amounts over different time periods, different clinical courses, different results and different underlying risk factors, and were governed by the laws of twelve different states.
PLAC’s brief argues due process imposes limits on the consolidation of civil—and especially mass tort—cases for trial, presenting an important issue that has not been, but should be, addressed by the Court. After the Court and Congress dramatically curtailed abusive class actions through decisions such as Amchem Prods. v. Windsor and Wal-Mart Stores v. Dukes
, and the Class Action Fairness Act, plaintiffs’ counsel have increasingly turned to consolidated trials of multiple plaintiffs’ claims to obtain the same aggregated evidence and coercive benefits class actions offer. With multi-district litigation making up a majority of the federal civil docket, and with hundreds of thousands of tort suits filed annually in state courts, many of them also aggregated in MDL-like proceedings, opportunities for aggregated trials are rife. COVID-19 backlogs will only make consolidation more tempting for “efficiency” purposes.
Judicial decisions, experimental social science studies and studies of actual jury verdicts all demonstrate that consolidated trials pose severe threats to defendants’ fair trial rights. It is impossible for jurors to keep individual cases separate, the aggregate evidence makes the jury more likely to find both liability and causation, and the jury inevitably hears evidence that is inadmissible in some individual cases. This case was a paradigm example of such unfairness, and the Missouri court’s ruling that jury instructions cured any problems not only raises the important due process issue but exacerbates a split with other state and federal appellate courts. Hence, the Court should grant review.
PLAC’s brief was authored by David R. Geiger
, Foley Hoag LLP, Seaport West, 155 Seaport Boulevard, Boston, MA 02210
David R. Geiger
Foley Hoag LLP