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Tips for Defending Consolidated Cases



| By Christina Marinakis, JD, PsyD, Former IMS Strategy & Jury Consulting Advisor

The Perils of Multi-Plaintiff Trials

Even prior to the COVID-19 pandemic, judges across jurisdictions struggled to balance busy dockets and address their mounting caseloads. The consolidation of cases, particularly in the mass tort arena, has been one tool that judges have turned to in hopes of chipping away at the backlog. Despite opposition from the defense bar and the threat of appellate review, this may be a trend we will see more of as the courts struggle to play catch-up in the aftermath of coronavirus closures.

And defendants have good reason to be concerned: Consolidated plaintiffs create new complications when it comes to arguing your case. A number of years ago, Dr. Jill Leibold published a blog entitled, “The Case Against Case Consolidation at Trial.” In it, she concludes:

As their cognitive demands increase, jurors’ ability to individualize plaintiffs and defendants decreases, stereotyping increases, and their ability to counteract the effects of contextualization and anchoring decreases. The sum effect is a lower quality, less accurate verdict that is not based on the merits of each [individual] case, but rather the generalized sum of all the parties and any biases that jurors may have implicitly invoked to make their decision-making more manageable. These issues may hamper a defense case more than a plaintiff’s by shifting the burden of proof via jurors’ use of generalizations, stereotypes, and heuristics.

That is to say, defending a case against multiple plaintiffs can present unique challenges. Indeed, some of our readers may have already felt the sting of an unexpected and/or harsh verdict in such a case. When jurors are asked to parse out facts and claims from different-but-similar plaintiffs, it is all too easy for the lines to blur as they struggle to keep everything separated. Liability becomes more of a “feeling”: if one party was wronged, they probably all were.

In fact, many jury research projects—especially in product liability/tort cases—often see mock jurors asking questions along the lines of, “Were there other people who also got hurt[/sick]?” In our experience, jurors will look to additional parties for supporting evidence of exposure and causation. Some academic studies have backed up this finding, discussing the effect of multiple plaintiffs on a jury’s ability to discern the causal and injury differences between plaintiffs, at times leading to greater damage awards. 1,2

Here we will provide a few tips for handling these special scenarios:

Tips for Limiting the Effects of Consolidated Plaintiffs

Provide Jurors with Pertinent Notebooks

Seek agreement from plaintiffs’ counsel and permission from the judge to prepare notebooks—or to prepare tabs to be inserted into existing notebooks—that would assist jurors in organizing the relevant information specific to each individual plaintiff. Doing so will help keep the facts and circumstances of one plaintiff from bleeding into those of another. It also further drives home the message that the court expects each plaintiff to be evaluated separately. Ideally, each section would be preceded with tabs labeled “Plaintiff 1 | Name | Dates” [e.g., of employment, of the contract, of product use, of exposure (if undisputed)], “Plaintiff 2 | Name | Dates,” etc., as well as a “General” tab for any overlapping information.  If possible, each plaintiff should be color-coded.

Then, as often as you can remember during your case presentation, try to direct jurors to which specific plaintiff each argument, document, or testimony applies. Further, color-coding your PowerPoint slides such that the title or header of the slide is a specific color for each plaintiff (ideally corresponding to jurors’ color-coded notebook tabs), can also help keep jurors organized. Jurors will be able to sort and process this information faster, and the color cues serve as a reminder for them to, for example, “flip to the purple tab.”

Identify Problematic Jurors in Voir Dire

In voir dire, ask questions to identify potential jurors who might struggle with assessing multiple plaintiffs:

  • Who here thinks if the defendant is liable to one plaintiff, it is probably liable to the others?
  • How many of you would have difficulty keeping track of all the separate plaintiffs? Who has concerns that they won’t be able to keep it all straight?
  • Would anyone struggle to send a plaintiff home empty-handed, even if they were the only one who wasn’t able to prove their case?
  • Does the fact that multiple people are bringing similar allegations cause you to believe their claims are probably true? [This should be clear grounds for a cause challenge and can be helpful on appeal if you can preserve the record with how many people said “yes” to this question.]
  • In other words, you’ve probably heard the saying, “Where there’s smoke, there’s fire.” Anyone think all this “smoke” must mean the defendant did something wrong?
  • Who here thinks the testimony of Plaintiff 1 is likely to bolster Plaintiff 2’s case?
  • Who here is going to think of the plaintiffs as a group of individuals versus a corporation, rather than as [X] separate cases?

Precondition Remaining Jurors in Voir Dire

Once you have identified the risky jurors above and sought to have them excused for cause, consider a few questions to preconditionother jurors on issues related to individual causation and differences between plaintiffs.

For example, in a pharmaceutical or medical device case:

  • Does anyone think all people respond the same to the same medication/medical procedure?
  • Anyone think individual differences don’t play a role in how well someone responds to a treatment or procedure?
  • So then does everyone acknowledge that someone may have a very good experience with a particular medication or procedure, while another person may not?

Or in any product liability case:

  • How many of you have gone to purchase a product and saw that one or two people have left one-star reviews, even though the vast majority are four or five stars?
  • Anyone think that a few one-star reviews mean the product is no good?
  • What might be some reasons why a product has a handful of one-star reviews when the majority of reviews are positive?
    • [Encourage volunteers from the back of the panel so as not to expose your good jurors. If no volunteers:] Could it be due to user error? Could it be that some people are more sensitive than others? Could it be that the person is reviewing the wrong product, or they meant to leave a review on a different product with a similar name?
  • So, does everyone agree that one person’s experience may not be the same as someone else’s?
  • Will you all keep that in mind when you are evaluating each of the plaintiffs in this case?

Include a Specialized Case Theme

Incorporate a theme that you repeat throughout your case—in your opening and closing presentations (including any visuals) and witness testimony—that focuses jurors on the differences between plaintiffs and why it is so important to distinguish them. This will help arm defense-minded jurors in deliberations with the talking points they need to keep others from lumping the cases together.

For instance, we have seen success with clients using themes such as:

  • Separate Contracts, Separate Cases
  • Separate People, Separate Products, Separate Cases
  • Separate Complaints, Separate Cases
  • Separate Sales, Separate Cases

Implementing these themes in opening or closing might sound something like:

“Rather than taking the time and resources to conduct [two] separate trials, the law allows certain cases to be tried together, at the same time, in front of the same judge and jury. But it’s important to remember that this case involves [two] completely separate [contract agreements/ patients/consumers], so it’s really [two] completely separate cases that should be decided—independent of one another. Your role will be to determine whether the defendant’s [actions were reasonable], and if not, whether [it caused harm] to each individual plaintiff, and if so, [how much harm] was caused to each?”

[If applicable:] “Since there’s going to be some overlap with certain information, the judge has provided you with notebooks, separated by tabs, to help keep you organized. We may not always remember, but we’ll try to remind you which facts, documents, and testimony go with which case, and we encourage you to take notes and jot down the important information in the corresponding sections of your notebook. Of course, you’re not required to do that, or to take notes at all, but we think doing so will make your deliberations go quicker and easier.”

Final Thoughts

A case against multiple plaintiffs can certainly be daunting given jurors’ increased willingness to generalize and to punish your client accordingly. But as with any defense-case challenge, working with the judge, running a targeted voir dire, and incorporating a strong, related case theme goes a long way toward mitigating any added risks.

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