Mass Action Plaintiffs’ Request to Consolidate for “Bellwether Process” Does Not Constitute “Joint Trial” For CAFA Removal: Ninth Circuit

Mass Action Plaintiffs’ Request to Consolidate for “Bellwether Process” Does Not Constitute “Joint Trial” For CAFA Removal: Ninth Circuit

The U.S. Court of Appeals for the Ninth Circuit held that a district court properly remanded eight “mass action” products liability suits against medical device manufacturer Cordis because, although the actions involved more than 100 named plaintiffs and involved common questions of law or fact, the plaintiffs did not propose to try the cases jointly (a requirement for removal under the Class Action Fairness Act of 2005). The wrinkle in the case was plaintiffs’ consolidation motion seeking not only consolidation for pretrial purposes, but also seeking consolidation for creating “a bellwether-trial process.” The Court held, however, that because plaintiffs did not suggest that they were recommending a bellwether trial that would have preclusive effect on the other plaintiffs, plaintiffs could not be said to have proposed a joint trial. [4/20/17]

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