Mass Torts -CAFA

Briggs v. Merck Sharp & Dohme (United States Court of Appeals, Ninth Circuit, August 6, 2015)  — F.3d —-, 2015 WL 4645605

Five groups of plaintiffs filed personal injury and wrongful death actions in California state court, asserting various tort claims against manufacturers and a distributor of diabetes drugs. Each of the five cases has fewer than one hundred plaintiffs. However, defendant Merck removed the actions to federal court, asserting jurisdiction based upon the Class Action Fairness Act (“CAFA”), which authorizes the removal to federal court of “mass actions,” civil actions 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.” 28 U.S.C. § 1332(d)(11)(B)(i).

The defendant contended that because there was already a coordinated state proceeding pending in Los Angeles County involving a second set of cases involving similar drugs, and in an earlier motion to remand the plaintiffs had indicated that “[R]emand will result in these cases joining the Judicial Council Coordinated Proceeding (JCCP), In re Byetta Cases, JCCP No. 4573, in Los Angeles, where coordination with this Court’s MDL is underway,” plaintiffs’ counsel’s expressed intent that the cases be transferred to the JCCP constituted a proposal to try the claims of those plaintiffs jointly.

The district court denied the motion to remand, but the 9th Circuit Court of Appeals reversed, holding that in none of the five cases did the plaintiffs propose that the claims of one hundred or more persons be tried jointly within the meaning of CAFA: 

If we were to agree with the district court that plaintiffs proposed a joint trial merely by filing their actions in state court, we would transform plaintiffs from masters of their complaints into servants of defendants’ litigation strategy. In effect, we would permit defendants to lock later-filing plaintiffs out of state court systems by preemptively initiating coordinated judicial proceedings in earlier-filed state court suits. Neither the text nor the purpose of CAFA contemplates such a result. …

The actions of plaintiffs in these cases—filing separate suits in San Diego Superior Court when a similar, but not identical, set of cases was pending in a JCCP in Los Angeles Superior Court—are a far cry from what other circuits have held sufficient to trigger removal as a mass action under CAFA. See, e.g., Atwell v. Bos. Sci. Corp., 740 F.3d 1160, 1161, 1163 (8th Cir.2013) (explaining that CAFA jurisdiction lies where plaintiffs requested that their cases, which together included more than one hundred plaintiffs, be assigned “to a single Judge for purposes of discovery and trial”); Visendi, 733 F.3d at 868 (holding that CAFA jurisdiction lies where plaintiffs “filed a single state-court complaint that named well over 100 plaintiffs”); Bullard v. Burlington N. Santa Fe Ry. Co., 535 F.3d 759, 761–62 (7th Cir.2008) (recognizing that CAFA jurisdiction lies where plaintiffs filed a complaint on behalf of 144 plaintiffs); see also Scimone, 720 F.3d at 884 (“Every other court of appeals confronted with this question has come to the same conclusion: that plaintiffs have the ability to avoid § 1332(d)(11)(B)(i) jurisdiction by filing separate complaints naming less than 100 plaintiffs and by not moving for or otherwise proposing joint trial in the state court.”).

We therefore conclude that none of the plaintiffs “proposed” a joint proceeding within the meaning of § 1332(d)(11)(B)(I), either when they made representations to the federal court or when they filed suit in state court. …

Our conclusion that the Kreis plaintiffs did not seek a joint trial is confirmed by the nature of the proceeding they sought to join. The August 2010 case management order in the Byetta JCCP, which explicitly applies to later filed add-on cases, states that the order “does not constitute a determination that these actions should be consolidated for trial.” …

Ordinary principles of collateral estoppel may apply in subsequent cases, but we agree with Judge Battaglia that a bellwether trial is not, without more, a joint trial within the meaning of CAFA. …

Thus, even if we were to impute the Byetta plaintiffs’ expressed wish for bellwether trials to the Kreis plaintiffs, that would not transform the Kreis plaintiffs’ add-on petition into a proposal for a joint trial.

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