Eighth Circuit Rules Multi-Plaintiff Vaginal Mesh Cases Are Mass Actions Under CAFA – Atwell et al. v. Boston Scientific

By November 22, 2013 July 18th, 2019 Defective Medical Device litigation, Transvaginal Mesh

Because the same defective medical devices are sold to hundreds or thousands of people around the United States, it’s common to see large groups of plaintiffs in a defective medical device lawsuit. These are class actions or sometimes mass actions, depending on exactly how the cases are combined. And because having one judge preside over many similar cases is most efficient—particularly with cases involving complex scientific issues, like these—the cases often end up before the same judge. In Atwell et al v. Boston Scientific, three separate groups of plaintiffs alleging defects in vaginal mesh implants asked to be assigned to the same judge in Missouri state court. Boston Scientific, the maker of the defective vaginal mesh, tried to move these to federal court under the Class Action Fairness Act. The district courts sent them back to state court, but the Eighth Circuit reversed.
CAFA mandates that class actions—lawsuits that are one suit with many plaintiffs—or “mass actions” involving 100 or more plaintiffs with separate claims “to be tried jointly” be tried in federal court. The plaintiffs in these three groups had common claims against a common defendant, Boston Scientific. But because the suits were brought separately and the groups were smaller than 100 plaintiffs, they were originally not subject to CAFA. Each group filed a similar motion asking the Missouri state court to assign them to a single judge “for purposes of discovery and trial.” Boston Scientific removed these to Missouri federal court, arguing that the request made the groups’ cases a mass action because they had proposed that their cases be tried jointly. The district courts disagreed, finding no proposal that the three groups of cases be tried jointly. Boston Scientific appealed to the Eighth U.S. Circuit Court of Appeals.
After dispensing with a claim that Boston Scientific’s removal notice was untimely, the Eighth Circuit found that the claims are a mass action under CAFA. The plaintiffs concede that their claims involve common questions of law or fact, and considering the three groups as a whole, they number more than 100 plaintiffs. The question was whether asking to be before one judge was proposing to try the claims jointly. The Eighth found that it was, following the Seventh Circuit’s reasoning that having multiple trials in the same lawsuit is trying the claims jointly. If the plaintiffs are permitted to try their claims in front of the same judge, the Eighth noted, it’s likely that most claims would be settled by claim or issue preclusion after the first few trials. Doing this in state court would render the relevant portion of CAFA “defunct.” Though the plaintiffs’ attorneys specifically said they were not asking for consolidation, the Eighth agreed with the Seventh, which had found consolidation would be the most likely result. Thus, it sent the cases back to district court.
This decision widens a split in the federal appeals courts, which has special relevance for pharmaceutical liability litigation. The Eighth and Seventh Circuits have both decided that defendants may move cases to federal court even when they’re not “class actions” or “mass actions,” as long as the plaintiffs ask for the same judge. The Ninth Circuit, by contrast, upheld a remand to California state court in a similar situation. This is a hotly contested issue, in part because it’s believed that state courts are friendlier to plaintiffs. It’s not clear whether that’s true, but it is true that federal courts are often further away from individuals’ homes and more expensive to try cases in—giving corporate defendants a clear advantage. That’s why dangerous medical device lawyers like me believe it’s in our clients’ best interests to keep cases in state court.


Based in St. Louis, Carey, Danis & Lowe represents people all over the United States who have been hurt by defective medical devices or pharmaceuticals. If your family has been injured, don’t hesitate to call us and discuss your legal rights. For a free consultation, send us an email or call 1-877-678-3400.
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