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"Mass Torts and Multiple Misjoinders"

The Drug and Device Law blog has a tremendously well documented post on the law of the mass-plaintiff-dump, the complaint filed with several unrelated plaintiffs. (We covered the issue ourselves in a less extensive fashion Oct. 15, 2005, focusing on the narrower question of fraudulent misjoinder to evade federal jurisdiction.) Of course, not every court follows the sound law documented by Beck and Herrman. The list of courts notorious for ignoring that law—e.g., West Virginia, Madison County, pre-reform Mississippi—corresponds remarkably well to ATRA's list of judicial hellholes, which goes to show that that list isn't anywhere near as arbitrary as reform opponents make it out to be.


A great deal of case law in federal and state courts holds that product liability cases are generally inappropriate for multi-plaintiff joinder because such cases involve highly individualized facts and �[l]iability, causation, and damages will. . .be different with each individual plaintiff.�

That long list of precedent is being ignored in the forthcoming mess of a New Jersey Vioxx trial, where four completely unrelated plaintiffs will have their lawsuits glommed together, despite different timing (resulting in different knowledge by Merck—even if one thinks Merck should have known better in 2004, it doesn't mean that Merck should have known better in 2002), different warnings, different causation issues, and different alleged damages. Maybe one thinks Merck should have had a different warning to doctors depending on the patient's predilection for heart disease? According to Judge Higbee's court's summary of the trial, however, the one jury will resolve the failure-to-warn question in one go across all four plaintiffs divorced from the related issue of causation, an appalling violation of due process seemingly intended to coerce a defendant into acceding to the sort of mass-tort settlement that has resulted in billions of dollars of fraud in asbestos and fen-phen litigation. (Update, Jan. 17: court reduces plaintiffs from four to two and updates its summary of the trial.)



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.