Amicus Curiae Brief — Johnson & Johnson, et al., Petitioners v. Gail L. Ingham, et al.

No. 20-1223

In the Supreme Court of the United States

JOHNSON & JOHNSON and

JOHNSON & JOHNSON CONSUMER INC.,

Petitioners,

v.

GAIL L. INGHAM, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE MISSOURI COURT OF APPEALS

FOR THE EASTERN DISTRICT

BRIEF FOR DRI–THE VOICE OF THE

DEFENSE BAR AS AMICUS CURIAE

SUPPORTING PETITIONERS

JAMES C. MARTIN

COLIN E. WRABLEY

JOSHUA T. NEWBORN

ZEKE K. REDIKER

REED SMITH LLP

255 Fifth Avenue

Pittsburgh, PA 15222

(412) 288-3131

APRIL 5, 2021

LISA M. BAIRD

Counsel of Record

REED SMITH LLP

1001 Brickell Bay Drive

Miami, FL 33131

(786) 747-0200

lbaird@reedsmith.com

EMILY G. COUGHLIN,

PRESIDENT, DRI

222 S. Riverside Plaza

Chicago, IL 60606

(312) 795-1101

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ......................... 1

SUMMARY OF ARGUMENT .................................. 4

REASONS FOR GRANTING THE PETITION ...... 6

I.

DUE PROCESS PRINCIPLES SHOULD BE APPLIED

ON REVIEW OF JURY VERDICTS IN

CONSOLIDATED MULTI-PLAINTIFF TRIALS ......... 6

A. Personal Injury Trials Involving Defective

Products Or Other Mass Torts Are

Inherently Complex And Present Highly

Individualized Issues................................. 6

B. Consolidated Multi-Plaintiff Products

Liability Or Other Mass-Tort Trials Are

Demonstrably Prejudicial And Unfair To

Defendants ................................................. 9

II. A DEFINITIVE PRECEDENT IS NEEDED FROM

THIS COURT ESTABLISHING THAT DUE PROCESS

PRINCIPLES PROTECT DEFENDANTS FROM THE

UNFAIRNESS AND PREJUDICE ARISING FROM A

MULTI-PLAINTIFF TRIAL. ................................. 18

CONCLUSION ....................................................... 23

TABLE OF AUTHORITIES

Page(s)

Cases

Amchem Products, Inc. v. Windsor,

521 U.S. 591 (1997) .............................................. 15

In re American Medical Sys.,

75 F.3d 1069 (6th Cir. 1996) ................................ 15

Cafeteria & Rest. Workers Union, Local

473, AFLCIO v. McElroy,

367 U.S. 886 (1961) .............................................. 18

Cain v. Armstrong World Industries,

785 F. Supp. 1448 (S.D. Ala. 1992) ..................... 13

Cantrell v. GAF Corporation,

999 F.2d 1007 (6th Cir. 1993) .............................. 12

Caperton v. A. T. Massey Coal Co.,

556 U.S. 868 (2009) .................................... 4, 19, 23

Castano v. Am. Tobacco Co.,

84 F.3d 734 (5th Cir. 1996) .................................. 14

Coleman v. Quaker Oats Co.,

232 F.3d 1271 (9th Cir. 2000) .............................. 10

Comcast Corp. v. Behrend,

569 U.S. 27 (2013) ................................................ 17

Danjaq LLC v. Sony Corp.,

263 F.3d 942 (9th Cir. 2001) ................................ 21

Duncan v. Louisiana,

391 U.S. 145 (1968) .............................................. 22

Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612 (2018) ............................................ 5

In re Fibreboard,

893 F.2d 706 (5th Cir. 1990) ................................ 10

Grayson v. K-Mart Corp.,

849 F. Supp. 785 (N.D. Ga. 1994) ........................ 12

Johnson v. Advanced Bionics, LLC,

No. 2:08-CV-02376-JPM, 2011 WL

36289 (W.D. Tenn. Apr. 4, 2011) ................... 12, 23

Jolly v. Eli Lilly & Co.,

44 Cal. 3d 1103 (1988) ......................................... 17

Kingsley Int’l Pictures Corp. v. Regents

of the Univ. of N.Y.,

360 U.S. 684 (1959) .............................................. 22

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) .......................................... 22

Lassiter v. Dep’t of Social Servs.,

452 U.S. 18 (1981) ................................................ 18

Lemon v. Int’l Union of Operating

Eng’rs, Local No. 139,

216 F.3d 577 (7th Cir. 2000) ................................ 17

Lindsey v. Normet,

405 U.S. 56 (1972) .................................................. 4

Lujan v. G & G Fire Sprinklers,

532 U.S. 189 (2001) ........................................ 20, 22

Malcolm v. National Gypsum Co.,

995 F.2d 346 (2d Cir. 1993) ................................. 11

Moorhouse v. Boeing Co.,

501 F. Supp. 390 (E.D. Pa. 1980) ........................ 10

In re Murchison,

349 U.S. 133 (1955) ................................................ 4

In re N. Dist. of Cal., Dalkon Shield

IUD Prods. Liab. Litig.,

693 F.2d 847 (9th Cir. 1982) ................................ 16

Philip Morris USA v. Williams,

549 U.S. 346 (2007) .......................................... 4, 19

In re Rhone-Poulenc Rorer Inc.,

51 F.3d 1293 (7th Cir. 1995) ................................ 14

Shady Grove Orthopedic Assocs., P. A. v.

Allstate Ins. Co.,

559 U.S. 393 (2010) ................................................ 5

Smith v. Ill. Cent. R.R.,

223 Ill. 2d 441 (2006) ........................................... 17

Stanley v. Illinois,

405 U.S. 645 (1972) .............................................. 19

State Farm Mut. Auto. Ins. Co. v.

Campbell,

538 U.S. 408 (2003) .............................................. 19

Steering Comm. v. Exxon Mobil Corp.,

461 F.3d 598 (5th Cir. 2006) .......................... 16, 17

Sw. Refin. Co. v. Bernal,

22 S.W.3d 425 (Tex. 2000) ................................... 16

Trump v. Hawaii,

138 S. Ct. 2392 (2018) .......................................... 21

United States v. Lopez,

514 U.S. 549 (1995) .............................................. 22

Wilkinson v. Austin,

545 U.S. 209 (2005) .............................................. 20

Rules

Federal Rule of Civil Procedure 23 ....................... 2, 14

Other Authorities

Beisner et al., U.S. Chamber Inst. For

Legal Reform, Trials and

Tribulations: Contending with

Bellwether and Multi-Plaintiff Trials

in MDL Proceedings (Oct. 2019) .......................... 10

Chilton Davis Varner, The Beginning of

MDL Consolidation: Should Cases be

Aggregated and Where?, 37 Rev.

Litig. 227 (2018) ................................................... 13

Henry J. Friendly, Federal Jurisdiction:

A General View, 120 (1973) ................................... 3

Irwin A. Horowitz & Kenneth S.

Bordens, The Consolidation of

Plaintiffs: The Effects of Number of

Plaintiffs on Jurors’ Liability

Decisions, Damage Awards, and

Cognitive Processing of Evidence, 85

J. Applied Psychol. 909 (2000) ............................. 11

Irwin A. Horowitz & Kenneth S.

Bordens, The Effects of Outlier

Presence, Plaintiff Population Size,

and Aggregation of Plaintiffs on

Simulated Civil Jury Decision, 12 L.

& Hum. Behav. 209 (1988) .................................. 13

Matthew A. Reiber & Jill D. Weinberg,

The Complexity of Complexity: An

Empirical Study of Juror

Competence in Civil Cases, 78 U.

Cin. L. Rev. 929 (2010) ........................................ 11

Michelle J. White, Asbestos Litigation:

Procedural Innovations and Forum

Shopping, 35 J. of Legal Stud. 365

(2006) .................................................................... 12

1

INTEREST OF AMICUS CURIAE

Amicus curiae DRI–The Voice of the Defense Bar

(www.dri.org) is an international organization composed of approximately 16,000 attorneys who defend

the interests of businesses and individuals in civil litigation.1 DRI’s mission includes enhancing the skills,

effectiveness, and professionalism of defense lawyers,

promoting appreciation for the role of defense lawyers

in our legal system, and anticipating and addressing

substantive and procedural issues germane to defense

lawyers and the clients they represent.

In keeping with its mission, DRI participates as

amicus curiae in cases where the issues significantly

affect civil-defense attorneys, their corporate or individual clients, and the conduct of civil litigation. One

of the principal issues in this case—whether and to

what extent the Due Process Clause of the U.S. Constitution protects a corporate defendant from the prejudice and unfairness that arises from a multi-plaintiff

personal-injury trial—plainly and directly impacts

DRI’s members and their clients.

DRI’s members frequently represent defendants

in mass-tort personal-injury lawsuits where multiple

plaintiffs seek to try their claims in one consolidated

proceeding before one jury. The prejudice and unfairness to targeted defendants arising from consolidated

1 No counsel for a party authored this brief in whole or in

part, and no person other than amicus or its counsel made a monetary contribution intended to fund the preparation or submission of this brief. Petitioners and respondents have filed blanket

consents to the filing of amicus briefs. Counsel of record for petitioners and respondents received notice of amicus’ intent to file

this brief more than ten days before the brief’s due date.

2

multi-plaintiff trials is serious, inherent, and welldocumented by courts and commentators alike. After

decades of firsthand experience, DRI’s members can

attest to this prejudice and unfairness as well.

DRI’s members’ clients manufacture, produce,

market, and sell a wide variety of medical devices,

pharmaceuticals, chemicals, automobiles, wearing apparel, and household goods, among thousands of diverse products affecting individuals in all aspects of

their lives. These products range from life-saving to

life-sustaining, life-enhancing to life-changing, and

every stopping point in between. Even with all their

diversity, however, they have one thing in common: if

injury or harm is alleged to result from a product’s

use, multi-plaintiff lawsuits involving hundreds or

thousands, or even hundreds of thousands, of individuals will follow.

At that point, as cases proliferate in various federal and state jurisdictions, the courts and targeted

defendants are confronted with resolution issues that

appear overwhelming, perceptibly outstripping available public and private resources. Over time, various

approaches to dealing with this influx have developed,

including class actions under Federal Rule of Civil

Procedure 23 and state counterparts, federal multidistrict proceedings and their mass-action state counterparts, and consolidated multi-plaintiff actions under joinder rules in federal or state court. Each of

these options is utilized in an effort to bring efficiencies to resolution. But the desire to achieve efficiency

has consequences for targeted defendants when multiplaintiff trials are adopted as a resolution tool.

DRI’s experience shows that consolidated multiplaintiff trials pose a heightened risk that juries will

3

be confused and overwhelmed by disparate lay and expert testimony related to the many distinct plaintiffs

and claims. This complexity brings with it the substantially increased likelihood of plaintiffs’ verdicts

with actual damages easily reaching hundreds of millions of dollars. When the potential for punitive damages is added, as is often the case, these already significant risks are magnified exponentially. And the

threat of this extraordinary exposure, in turn, engenders predictable—but unacceptably high—pressure

on defendants to settle, even when many of the plaintiffs have weak or unmeritorious claims. Indeed, the

“blackmail settlement” problem in aggregated litigation that Judge Friendly long ago identified reaches

its zenith in consolidated mass-tort, multi-plaintiff

trials. Henry J. Friendly, Federal Jurisdiction: A General View 120 (1973).

The Missouri verdict in this case proves the

point. Here, a diverse group of plaintiffs produced

identical $25 million actual-damage awards for each

plaintiff and multi-billion-dollar punitive damage

awards that extended well beyond any rational relationship to the actual damages awarded. But this is

just one example. And, as the petition also illustrates,

there is no effective judicial check in place to alleviate

the prejudice resulting when a verdict crosses the line

to the unreasonable and irrational. Certain federal

courts and jurisdictions properly bring due process

principles to bear when consolidation threatens or

compromises the fairness of trials and the ability to

present a defense. Other jurisdictions, Missouri

among them, do not.

4

The problems raised by multi-plaintiff trials that

trample the due process boundaries are concrete, disruptive, and fundamental. When extraordinary and

excessive verdicts are entered and upheld, a business

enterprise must find a way to absorb it. And if it is

able to do so through insurance or its own revenues,

then trade-offs inevitably must follow. Insurance costs

increase, product prices are raised, and investments

in hiring, employees, and product development are

curtailed or ended entirely.

For the reasons more fully set forth below, DRI

urges the Court to grant this petition and define the

due process boundaries that our system of justice

should insist on—and that the Constitution commands. That holding from this Court will promote rationality and fairness and avoid perpetrating miscarriages of justice like the one in this case.

SUMMARY OF ARGUMENT

“It is axiomatic that ‘[a] fair trial in a fair tribunal is a basic requirement of due process.’” Caperton

v. A. T. Massey Coal Co., 556 U.S. 868, 876 (2009)

(quoting In re Murchison, 349 U.S. 133, 136 (1955)).

Part and parcel of this requisite “fair trial” is that defendants be given a full “‘opportunity to present every

available defense.’” Philip Morris USA v. Williams,

549 U.S. 346, 353 (2007) (quoting Lindsey v. Normet,

405 U.S. 56, 66 (1972)).

As courts have warned many times, however,

consolidated multi-plaintiff trials test this immutable

fairness principle, impacting principally on the targeted defendant’s ability to prepare and mount a defense. Trials that confound juries with witness after

witness, document after document, followed up by

5

hours of jury instructions, are not “fair” by any objective measure for those who are trying to defend them.

And their coercive effect is well known. Simply put,

the threat of aggregated proceedings “can unfairly

‘plac[e] pressure on the defendant to settle even unmeritorious claims[.]’” Epic Sys. Corp. v. Lewis, 138 S.

Ct. 1612, 1632 (2018) (quoting Shady Grove Orthopedic Assocs., P. A. v. Allstate Ins. Co., 559 U.S. 393, 445,

n.3 (2010) (Ginsburg, J., dissenting)).

Unfortunately, as the petition highlights, there

is no uniformity among federal and state courts in applying fundamental principles of due process to check

or rectify the prejudice and unfairness that can result

from consolidated trials involving personal injury

plaintiffs. But fundamental due process principles are

not jurisdiction-specific—our Constitution commands

that those principles apply to all controversies that

are resolved by our courts.

Given the inconsistencies in lower court precedents, this Court should grant review and hold that

due process principles must intercede where juries

render irrational and excessive verdicts in consolidated multi-plaintiff cases. That holding will, in turn,

protect defendants and properly ensure that such outcomes are not sustainable under our justice system.

6

REASONS FOR GRANTING THE PETITION

I.

DUE PROCESS PRINCIPLES SHOULD BE APPLIED

ON REVIEW OF JURY VERDICTS IN CONSOLIDATED MULTI-PLAINTIFF TRIALS

A. Personal Injury Trials Involving Defective Products Or Other Mass Torts Are

Inherently Complex And Present Highly

Individualized Issues

The petition here arises on a fact pattern all too

familiar to DRI and the companies DRI’s members

represent and defend. A product sold nationwide for a

number of years and with tens or hundreds of thousands of purchasers is alleged to have a defect causing

injury and harm. Lawsuits are filed in various jurisdictions in state and federal court by individuals as

class actions or as multi-plaintiff mass actions. A coordination effort begins among the various plaintiffs’

attorneys to bring maximum resolution pressure on

the corporate target. The corporate target, in turn, retains its own team of lawyers to try to bring consistency to its defense. Resting firmly in between

these two organizing efforts are state and federal

courts, who are faced with trying to resolve each case.

Reality quickly sets in.

The trial of one of these cases—to fully present

the evidence, the law, and arguments on both—routinely runs longer than two weeks, even if well-managed by counsel and the court. The trial timeline typically will start with the resolution of some final disputes over the admission of evidence and witness timing, after which jury selection will begin. Once the voir

dire concludes and the jury is impaneled, the trial

7

court will give some pre-trial instructions on juror behavior and on what the case is about. Both sides then

will give opening statements, laying out the evidence

and issues to be resolved.

After that, plaintiff begins the presentation of his

or her case, which typically involves testimony from

the plaintiff, his or her family members, several fact

witnesses, treating doctors and other healthcare professionals, and multiple expert witnesses on liability

and damages. This liability and damages evidence

delves into the plaintiff’s medical history, plaintiffspecific alternative causation factors, and that plaintiff’s prognosis, treatments, and experiences.

Plaintiff also elicits testimony from the corporate

target’s witnesses, either live or by depositions. Defense counsel will conduct cross-examination along

the way, some brief and some extensive. Once the

plaintiff rests, defense counsel typically will make a

pre-verdict dispositive motion aimed at one or more of

the claims being pursued.

The defense case follows and it is equally involved, with testimony from fact witnesses, corporate

personnel, experts on care and treatment, liability,

and damages. If punitive damages are implicated,

various witnesses will be called to further defend the

company’s behavior and probe its finances. The plaintiff’s counsel will have cross-examination for all the

defense witnesses, and for most corporate witnesses

and experts it will be extensive. The plaintiff also will

be permitted to put on rebuttal witnesses, spurring

further cross-examination by the defense.

Once the presentation of the evidence concludes,

jury instructions will have to be settled, often thirty

8

or forty in number, together with a multi-page verdict

form encompassing the relevant claims, defenses,

damages, and fault-allocation principles. After that,

both sides make their closing arguments and the court

reads jury instructions. Jury deliberations follow until

a verdict is reached. After the verdict, post-trial motions and proceedings involving the entry of judgment

will be heard and decided.

So, back to reality. When hundreds or thousands

of plaintiffs are involved, coordination can conceivably

achieve certain efficiencies during the discovery and

pretrial motion process. But when trials ultimately

are needed to resolve the individual cases, efficiency

cannot drive the analysis, and coordination cannot be

the rule.

A moment’s reflection shows why. In a consolidated multi-plaintiff trial, the court will be faced with

a diverse group of individuals, with differing law, facts

underlying their alleged injuries and their causes, and

ranges of recoverable damages. The relevant conduct

can extend over many years, with different exposures,

actions, documents, witnesses, and scientific and corporate knowledge. The law that is applicable can vary

depending on fact patterns as well, particularly when

it comes to the admission of evidence, claims, and

available defenses.

Yet, despite these inevitable and consequential

differences, plaintiffs’ counsel routinely will propose,

as they did in this case, that multiple plaintiffs’ cases

be tried together in the interests of efficiency. And, as

was also the case here, the defendant will resist that

joinder because it knows what is likely to happen if a

multi-plaintiff trial is ordered. When these cases are

9

consolidated, their individuality is lost and the outcomes do not replicate what would happen if the cases

are tried one at a time. On the contrary, things get

demonstrably worse for the defendants.

B. Consolidated Multi-Plaintiff Products

Liability Or Other Mass-Tort Trials Are

Demonstrably Prejudicial And Unfair To

Defendants

A full and fair defense of an individual products

liability suit is reflected in the story of the trial recited

above. It involves days of focused testimony and evidence and argument tied to the applicable law and

aimed discretely at the individual plaintiff’s case.

That single fact pattern will have the jury’s undivided

attention and be top-of-mind in determining liability,

causation, damages, and available defenses. That fact

pattern will have governed the examination and

cross-examination of the witnesses, lay and expert,

and will determine the effect of the substantive law on

the admission of evidence, for the closing argument,

the jury instructions, and the completion of the verdict

form.

But, as DRI’s members know firsthand, what occurs in multi-plaintiff trials is categorically different

from what happens when a single case is tried. In such

trials, there is no discrete, individualized fact pattern

for the jury to evaluate, and the chances for a defense

verdict fall commensurately as the complexity of the

trial increases.

Think of a jury confronted with 20 cases involving the evidentiary and witness presentation described above, and now spread that over the diverse

fact patterns for each plaintiff on liability, causation,

10

defenses, and damages. The jury instructions and verdict forms, just to capture this diversity, can run hundreds of pages. To call it mind-numbing is to understate the task at hand and the prejudice to the defendant that follows. As the Fifth Circuit has explained,

whatever efficiencies might arise in the “ongoing

struggle with the problems presented by the phenomenon of mass torts,” complex, mass consolidations

have the potential to make a mockery of the very word

“trial.” In re Fibreboard, 893 F.2d 706, 710, 712 (5th

Cir. 1990); Coleman v. Quaker Oats Co., 232 F.3d

1271, 1296-97 (9th Cir. 2000) (affirming decision to

conduct separate trials for ten plaintiffs where district

court “properly considered the potential prejudice to

[defendant] created by the parade of [plaintiffs] and

the possibility of factual and legal confusion on the

part of the jury”); Moorhouse v. Boeing Co., 501 F.

Supp. 390, 393 n.4 (E.D. Pa. 1980) (concluding that

“even the strongest jury instructions could not have

dulled the impact of a parade of witnesses, each recounting his” individualized “contention”), aff’d, 639

F.2d 774 (3d Cir. 1980).

An October 2019 study by the Institute for Legal

Reform (ILR) found that no consolidated multi-plaintiff trials that it identified ended in split verdicts.

John Beisner et al., U.S. Chamber Inst. For Legal Reform, Trials and Tribulations: Contending with Bellwether and Multi-Plaintiff Trials in MDL Proceedings, 9 (Oct. 2019). Uniform verdicts are a telling indication that juries do not, or cannot, differentiate the

legal and factual arguments when faced with the complexity of multi-plaintiff trials.

ILR also found that consolidated multi-plaintiff

trials in MDL proceedings “substantially increas[ed]

11

the likelihood and size of each plaintiff’s verdict.” Id.

at 8. Statistically, consolidated trials resulted in

plaintiff verdicts almost 80 percent of the time. By

contrast, single-plaintiff trials in MDL proceedings favored plaintiffs less than 40 percent of the time. Id. at

8-9; see also Irwin A. Horowitz & Kenneth S. Bordens,

The Consolidation of Plaintiffs: The Effects of Number

of Plaintiffs on Jurors’ Liability Decisions, Damage

Awards, and Cognitive Processing of Evidence, 85 J.

Applied Psychol. 909 (2000) (study finding defendants

more likely to be judged as liable, and that damages

were more likely to be higher, when claims were consolidated for trial).

As these studies reflect, jury confusion—and the

prejudice that results for defendants—is a widely recognized problem in multi-plaintiff trials. See Matthew

A. Reiber & Jill D. Weinberg, The Complexity of Complexity: An Empirical Study of Juror Competence in

Civil Cases, 78 U. Cin. L. Rev. 929, 929 (2010) (concluding that juror “comprehension declines as complexity increases, particularly when the complexity

arises from the presence of multiple parties or

claims”). In the mélange of claims and defenses, jurors

particularly will lose sight of alternate causes of injuries, differences in exposures, changes in courses of

conduct, and limitations on the relevance of admitted

evidence. See Malcolm v. National Gypsum Co., 995

F.2d 346, 349, 352 (2d Cir. 1993) (reversing trial

court’s decision to consolidate asbestos trials because

“the jury was presented with a dizzying amount of evidence” that would not have been admissible had the

cases been tried separately and recognizing that there

12

was an “unacceptably strong chance that the equal apportionment of liability amounted to the jury throwing up its hands in the face of a torrent of evidence”).

Beyond the perceptible confusion, when multiple

plaintiffs present jurors with numerous claims

against a defendant, juries tend to develop a negative

view of that defendant based on the sheer number of

claims. See Michelle J. White, Asbestos Litigation:

Procedural Innovations and Forum Shopping, 35 J. of

Legal Stud. 365, 373 (2006) (explaining that jurors in

consolidated trials base their decisions on more information than juries in individual trials, and that if additional information makes a defendant appear “callous,” jurors can become more sympathetic to plaintiffs). In this way, a particularly sympathetic plaintiff

can color jurors’ feelings about the others. See

Cantrell v. GAF Corporation, 999 F.2d 1007, 1011 (6th

Cir. 1993) (noting that “[c]are must be taken that consolidation does not result in unavoidable prejudice or

unfair advantage” and that “potential for prejudice resulting from the consolidation of a cancer case with a

non-cancer case is obvious. Evidence relevant only to

the causation of one plaintiff’s cancer may indicate to

the jury that the other plaintiff will likely develop cancer in the future.”); Grayson v. K-Mart Corp., 849 F.

Supp. 785, 790 (N.D. Ga. 1994) (“There is a tremendous danger that one or two plaintiffs’ unique circumstances could bias the jury against defendant generally, thus, prejudicing defendant with respect to the

other plaintiffs’ claims.”); Johnson v. Advanced Bionics, LLC, No. 2:08-CV-02376-JPM, 2011 WL 36289, at

*6 (W.D. Tenn. Apr. 4, 2011) (denying consolidation

and explaining that, “[g]iven the differences, potentially great, between [plaintiff one’s] damages and

13

[plaintiff two’s] damages, there is a risk that a jury

would be unduly influenced by the facts of one case

and respond in both cases accordingly”).

Cain v. Armstrong World Industries, 785 F.

Supp. 1448 (S.D. Ala. 1992), illustrates the point. Despite the diverse experiences of the 27 plaintiffs and

the disparate evidence presented about each—including when the various symptoms manifested, what injuries the drug allegedly caused, and what damage

could be attributed to other causes—each plaintiff received the same exact percentage of his or her claimed

damages. Id. at 1455. Coupled with the jury’s “relatively short deliberation time as well as in the inflated

amounts of many of the damage awards and the lack

of evidence supporting some of the damages in several

cases[,]” id., this led “the Court to the overwhelming

conclusion that the consolidation of these actions was

unduly prejudicial.” Id. at 1454-55.

As also might be expected, the confusion and

prejudice engendered by consolidation of complex personal injury cases also leads to damage awards that

are significantly higher than they are for those in single-plaintiff trials. See Irwin A. Horowitz & Kenneth

S. Bordens, The Effects of Outlier Presence, Plaintiff

Population Size, and Aggregation of Plaintiffs on Simulated Civil Jury Decision, 12 L. & Hum. Behav. 209

(1988) (finding punitive awards were higher for all

plaintiffs in multi-plaintiff trials that included an outlier plaintiff with injuries that were significantly more

severe than the other plaintiffs); Chilton Davis Varner, The Beginning of MDL Consolidation: Should

Cases be Aggregated and Where?, 37 Rev. Litig. 227,

239 (2018) (noting the “breath-taking verdicts

14

awarded thus far in multiple-plaintiff [MDL] ‘bundled’ trials”).

Practically speaking, plaintiffs’ counsel also will

use the threat of a consolidated trial to seek a higher

settlement value, especially in cases including one or

more plaintiffs with serious injuries. See Castano v.

Am. Tobacco Co., 84 F.3d 734, 746 (5th Cir. 1996)

(stating reasons why the threat of consolidated trials

gives plaintiffs leverage against the defense, including

that it “magnifies and strengthens the number of unmeritorious claims,” “makes it more likely that a defendant will be found liable,” “results in significantly

higher damage awards,” and “creates insurmountable

pressure on defendants to settle,” which is akin to “judicial blackmail”); In re Rhone-Poulenc Rorer Inc., 51

F.3d 1293, 1298 (7th Cir. 1995) (discussing the “intense pressure to settle” that accompanies aggregated

claims of multiple plaintiffs in such cases even where

there is only “a small probability of an immense judgment” (citation omitted)).

The systemic challenges posed by multi-plaintiff

trials have received their closest scrutiny in considering classwide trials under Federal Rule of Civil Procedure 23 and its state-law counterparts. And, because

of their inherent factual diversity and evidentiary and

legal complexity, federal and state courts alike routinely find that mass-tort personal-injury claims are

unsuitable for classwide trial.

The Advisory Committee on the Federal Rules of

Civil Procedure zeroed in on this 55 years ago in discussing amendments to Rule 23 of the Federal Rules

of Civil Procedure, explaining that a “‘mass accident’

resulting in injuries to numerous persons is ordinarily

15

not appropriate for a class action because of the likelihood that significant questions, not only of damages,

but of liability and defenses of liability, would be present, affecting the individuals in different ways.” Rule

23, Notes of Advisory Committee on Rules, 1966

Amendment. “In these circumstances[,]” the Committee continued, “an action conducted nominally as a

class action would degenerate in practice into multiple lawsuits separately tried.” Id.

This Court noted these very trial manageability

issues in its watershed decision in Amchem Products,

Inc. v. Windsor, 521 U.S. 591 (1997). There, the Court

rejected certification of a settlement class of plaintiffs

asserting claims arising from asbestos exposure. The

Court stressed that “[c]lass members were exposed to

different asbestos-containing products, for different

amounts of time, in different ways, and over different

periods.” Id. at 624. It further observed that the plaintiffs suffered a wide variety of symptoms, ranging

from asymptomatic changes to lung cancer; each had

a “different history of cigarette smoking, a factor that

complicates the causation inquiry”; and “they all

would “incur different medical expenses.” Id. “[C]aution,” the Court stressed, is called for when “disparities among class members [are] great[,]” and “the certification in this case does not follow the counsel of

caution.” Id. at 625.

The Sixth Circuit said the same thing in rejecting

certification of a sprawling medical-device products liability suit. See In re American Medical Sys., 75 F.3d

1069, 1084-85 (6th Cir. 1996). The court explained

that “[i]n complex, mass, toxic tort accidents, where

no one set of operative facts establishes liability, no

single proximate cause applies to each potential class

16

member and each defendant, and individual issues

outnumber common issues, the district court should

properly question the appropriateness of a class action

for resolving the controversy.” Id. at 1084 (citation

and internal quotation marks omitted). In medical device products liability litigation in particular, “the factual and legal issues often do differ dramatically from

individual to individual because there is no common

cause of injury.” Id. “No single happening or accident

occurs to cause similar types of physical harm or property damage. No one set of operative facts establishes

liability. No single proximate cause applies equally to

each potential class member and each defendant.” Id.

Plus, “the alleged tortfeasor’s affirmative defenses

(such as failure to follow directions, assumption of the

risk, contributory negligence, and the statute of limitations) may depend on facts peculiar to each plaintiff’s case.” Id. at 1085 (citation omitted).

Many other courts echo the same insoluble manageability concerns. See, e.g., Steering Comm. v. Exxon

Mobil Corp., 461 F.3d 598, 603 (5th Cir. 2006) (underscoring “the vastly more complex individual issues of

medical causation and damages” raised by plaintiff’s

tort claims arising out of a refinery fire); In re N. Dist.

of Cal., Dalkon Shield IUD Prods. Liab. Litig., 693

F.2d 847, 853 (9th Cir. 1982) (“In product liability actions, however, individual issues may outnumber

common issues. No single happening or accident occurs to cause similar types of physical harm. . . . No

one set of operative facts establishes liability. No single proximate cause applies equally to each potential

class member and each defendant. Furthermore, the

alleged tortfeasors’ affirmative defenses . . . may depend on facts peculiar to each plaintiff’s case.”); Sw.

17

Ref. Co. v. Bernal, 22 S.W.3d 425, 436 (Tex. 2000) (observing that “[p]ersonal injury claims will often present thorny causation and damage issues with highly

individualistic variables that a court or jury must individually resolve”); Smith v. Ill. Cent. R.R., 223 Ill.

2d 441, 450 (2006) (adopting the reasoning of Southwest Refining and recognizing the “unsuitability of the

class action device for mass tort personal injury

cases”); Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103, 1123

(1988) (“The major elements in tort actions for personal injury—liability, causation, and damages—may

vary widely from claim to claim, creating a wide disparity in claimants’ damages and issues of defendant

liability, proximate cause, liability of skilled intermediaries, comparative fault, informed consent, assumption of the risk and periods of limitation.”).

When, as in this case, issues of compensatory

damages—in addition to punitive damages—are

added, the manageability challenges ratchet up even

further. This Court again has made that abundantly

clear: “Questions of individual damage calculations

will inevitably overwhelm questions common to the

class.” Comcast Corp. v. Behrend, 569 U.S. 27, 34

(2013). Others courts have, too. See, e.g., Steering

Comm., 461 F.3d at 604-05 (reasoning that “individual issues relating to the plaintiffs’ claims for compensatory and punitive damages” arising out of alleged

injuries caused by a refinery fire “detract[] from the

superiority of the class action device in resolving these

claims” (citations omitted)); Lemon v. Int’l Union of

Operating Eng’rs, Local No. 139, 216 F.3d 577, 580

(7th Cir. 2000) (pointing out that a “suit for money

damages . . . jeopardizes . . . cohesion and homogeneity” among a class of plaintiffs “because individual

18

claims for compensatory or punitive damages typically require judicial inquiry into the particularized

merits of each individual plaintiff’s claim”).

Given all of this, there is reason for pause. Of necessity, trial manageability challenges raised by the

highly individualized aspects of products liability,

chemical exposure, or other mass-tort lawsuits are reprised in any form of aggregate litigation. This follows

from the very nature of the claims themselves. But

while the risks of trying mass-tort claims in a classwide trial have been held firmly in check by rulemaking and judicial decisions, no comparable construct

addresses them in consolidated multi-plaintiff trials.

This has to change, and change must come from this

Court’s articulation and adoption of constitutional due

process principles that can be relied on to put a stop

to the injustice of verdicts like the one affirmed in this

case.

II.

A DEFINITIVE PRECEDENT IS NEEDED FROM

THIS COURT ESTABLISHING THAT DUE PROCESS

PRINCIPLES PROTECT DEFENDANTS FROM THE

UNFAIRNESS AND PREJUDICE ARISING FROM A

MULTI-PLAINTIFF TRIAL.

“For all its consequence, ‘due process’ has never

been, and perhaps can never be, precisely defined.”

Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 24

(1981). “‘[Unlike] some legal rules,’ this Court has

said, due process ‘is not a technical conception with a

fixed content unrelated to time, place and circumstances.’” Id. (quoting Cafeteria & Rest. Workers Union, Local 473, AFLCIO v. McElroy, 367 U.S. 886, 895

(1961)). “Rather, the phrase expresses the requirement of ‘fundamental fairness,’ a requirement whose

19

meaning can be as opaque as its importance is lofty.”

Id.

In the context of court proceedings, this “fundamental fairness” guarantee of due process requires a

“fair trial.” Caperton, 556 U.S. at 876 (citation omitted). It also protects a defendant’s right and “opportunity to present every available defense.” Philip Morris USA, 549 U.S. at 353 (citation omitted). And it

checks “the imposition of grossly excessive or arbitrary punishments on a tortfeasor.” State Farm Mut.

Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003).

The need to apply overarching due process principles to a verdict like the one rendered here is manifest. As the record shows, state-court standards of appellate review will not necessarily provide the protections needed. The Missouri Court of Appeals justified

the trial court’s consolidation of the 22 plaintiffs’

unique claims for trial by noting that the instructions

to the jury could account for each individualized

claim. Five hours of instructions were read and the

court of appeals embraced the presumption that the

jury in fact followed them.

In the mine run of lawsuits, jury instructions certainly can aid courts in their duty to ensure fairness

and prevent prejudice in the way lawsuits are decided.

When a court reviews a jury’s work and must ascertain what it did—and didn’t—conclude, it is sensible

and efficient to presume that the jury followed the instructions it received. And there is no denying that

“[p]rocedure by presumption is always cheaper and

easier than individualized determination.” Stanley v.

Illinois, 405 U.S. 645, 656-57 (1972).

20

But that doesn’t mean a presumption solves a

problem of constitutional dimension—or that its use is

even constitutional in the first place. Indeed, the

lower court’s use of the jury-instruction presumption

here runs directly counter to the “very nature” of due

process, which “negates any concept of inflexible procedures universally applicable to every imaginable

situation.” Lujan v. G & G Fire Sprinklers, 532 U.S.

189, 196 (2001) (citation and internal quotation marks

omitted); Wilkinson v. Austin, 545 U.S. 209, 224

(2005) (due process is “flexible and call[s] for such procedural protections as the particular situation demands”) (internal quotation marks and brackets omitted).

There is no reason, as a matter of fact or law, that

fundamental due process principles cannot be resorted to when evaluating state-law jury verdicts. Yet

despite the constitutional compulsion, there is a lack

of uniformity—documented in the petition—on bringing those principles to bear when irrational and excessive verdicts result from the unwarranted consolidation of complex personal injury cases. Those jurisdictions, federal and state, that bring these constitutional due process principles to bear on such verdicts

have it right. But there is no room for differing views

on this point.

For that reason, the Court should grant review to

make clear, first of all, that—as in the class action

context—the Due Process Clause requires careful, rigorous scrutiny of the propriety of consolidation in

multi-plaintiff cases on a case-by-case basis. See WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011)

(requiring a “rigorous analysis” of class-certification

requests); see also In re Repetitive Stress Injury Litig.,

21

11 F.3d 368, 373 (2d Cir. 1993) (requiring “close attention” to the “special underlying facts” bearing on consolidation “before ordering a consolidation” (citation

omitted) (cleaned up)). This, in turn, will immediately

solve the patchwork problem that presently persists,

where federal and state courts apply widely divergent

approaches to consolidation requests based on varying

procedural rules that give trial courts wide discretion.

Pet.12-18.

Of even greater significance, this Court’s review

and clarification of the applicable principles will replace that hodgepodge of inconsistent (or non-existent) rules with a uniform standard that will apply regardless of where plaintiffs file their cases, thus minimizing the risk of forum-shopping and “litigation

tourism” and the adverse systemic consequences that

follow from it. Cf. Trump v. Hawaii, 138 S. Ct. 2392,

2425 (2018) (Kennedy, J., concurring) (noting that

rules “encouraging forum shopping . . . take a toll on

the federal court system”). And it will make clear that

while courts have discretion to structure and manage

the procedure of the cases before them, that discretion

must be exercised within constitutional limits. See

Danjaq LLC v. Sony Corp., 263 F.3d 942, 961 (9th Cir.

2001) (acknowledging that “discretion” in deciding

whether to consolidate “is limited by constitutional

constraints”).

To be sure, distilling clear and administrable

standards for determining whether the Due Process

Clause’s “fairness” requirement is violated by consolidation or in the way a civil lawsuit is constructed and

tried is no easy task. Yet, courts are “often called upon

to resolve questions of constitutional law not susceptible to the mechanical application of bright and clear

22

lines[,]” United States v. Lopez, 514 U.S. 549, 579

(1995) (Kennedy, J., concurring), especially when they

involve the reach of the Due Process Clause, see, e.g.,

Lujan, 532 U.S. 196-97 (noting that the Due Process

Clause, by its “very nature[,] . . . negates any concept

of inflexible procedures universally applicable to

every imaginable situation”); Kingsley Int’l Pictures

Corp. v. Regents of the Univ. of N.Y., 360 U.S. 684, 696

(1959) (Frankfurter, J., concurring in the judgment)

(“Such an exercise of the judicial function . . . inheres

in the very nature of the judicial enforcement of the

Due Process Clause. We cannot escape such instanceby-instance, case-by-case application of that

clause . . . .”). Indeed, the Court must do so, for

“[a]bdication of [this judicial] responsibility is not part

of the constitutional design.” Kisor v. Wilkie, 139 S.

Ct. 2400, 2440 (2019) (Gorsuch, J., concurring in the

judgment) (citation omitted). Simply put, when constitutional limits are transgressed, “it is necessary to

draw a line . . . .” Duncan v. Louisiana, 391 U.S. 145,

160 (1968).

Courts should, moreover, be admonished and advised to look for markers showing when the due process boundaries have been—or might be—crossed.

This case presents an excellent vehicle for declaring

what those markers can and should be. It is apparent

on review of this record and verdict that the number

of plaintiffs—22—overwhelmed the jury’s ability to

make individualized determinations. The mathematical rectitude of the significant damage awards—when

evaluated against the disparate circumstances of each

plaintiff—makes that plain. It is equally apparent

that the number of plaintiffs severely handicapped

the ability to put on a defense. The number affected

23

the view of the defendant and drove the damage

awards, actual and punitive, upward with no rational

connection to each plaintiff.2

There should be no inertia in the system, through

the standard of review or otherwise, to affirm a verdict

that shocks basic sensibilities on how it was arrived

at. Quite the contrary, due process should demand

more and provide basic principles of fairness and justice to ensure that such a verdict is reversed. This

Court has drawn due process lines for punitive damages to keep them within rational bounds. Actual

damage verdicts of the magnitude here can inflict the

same deleterious consequences and they deserve the

same attention.

CONCLUSION

By any measure, this case is extraordinary, and

such extraordinary matters “often test the bounds of

established legal principles.” Caperton, 556 U.S. at

887 (citations omitted). But they are also “more likely

to cross constitutional limits, [thus] requiring [judicial] intervention”—especially “when[,]” as here, “due

2 Courts are up to this task and can perform it effectively

before, during, or after trial. See, e.g., In re Repetitive Stress Injury Litig., 11 F.3d at 371, 373 (vacating consolidation order in

multi-plaintiff “repetitive stress injury” cases “where claimed afflictions d[id] not have a single cause” and “plaintiffs presumably

have the usual wide variety of individual health conditions and

problems that are found in any similar sample of persons”);

Bowles v. Novartis Pharmaceuticals Corp., Nos. 3:12-CV-145,

238, 2013 WL 663040, at * 1-2 (S.D. Ohio Feb. 25, 2013) (denying

consolidation in pharmaceutical products liability case because

of temporal difference in when drugs were prescribed, treatment

by different doctors, different underlying medical histories, and

different risk factors for the alleged injury); Johnson, 2011 WL

1323883, at *6 (similar).

24

process is violated.” Id. The Court should grant certiorari and declare that due process constraints must be

brought to bear to uphold the fundamental “fair trial”

guarantee that the Due Process Clause enshrines.

Respectfully submitted,

LISA M. BAIRD

Counsel of Record

REED SMITH LLP

1001 Brickell Bay Drive,

Miami, FL 33131

(786) 747-0200

lbaird@reedsmith.com

JAMES C. MARTIN

COLIN E. WRABLEY

JOSHUA T. NEWBORN

ZEKE K. REDIKER

REED SMITH LLP

255 Fifth Avenue

Pittsburgh, PA 15222

(412) 288-3131

EMILY G. COUGHLIN,

PRESIDENT, DRI

222 S. RIVERSIDE PLAZA

CHICAGO, IL 60606

(312) 795-1101

APRIL 5, 2021

Counsel for Amicus Curiae