Blount v. Boston Scientific Corporation

• Court: District Court, E.D. California
• Decided: August 21, 2019
• Docket: 1:19-cv-00578
• Status: Unknown

Opinion

1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4 5 MISTY BLOUNT, CASE NO. 1:19-CV-0578 AWI SAB

6 Plaintiff ORDER ON PLAINTIFF’S RULE 42(a) 7 v. MOTION TO CONSOLIDATE

8 BOSTON SCIENTIFIC CORPORATION, (Doc. No. 46)

9 Defendant

10 _____________________________________

11 SHIRLEY BAILEY, CASE NO. 1:19-CV-0583 AWI SAB

12 Plaintiffs ORDER ON PLAINTIFF’S RULE 42(a) 13 v. MOTION TO CONSOLIDATE

14 BOSTON SCIENTIFIC CORPORATION, (Doc. No. 50)

15 Defendant

16 _____________________________________

17 JOHN SNAVELY as successor in interest CASE NO. 1:19-CV-0585 AWI SAB of the Estate of Roma Snavely, 18 Plaintiff ORDER ON PLAINTIFF’S RULE 42(a) 19 MOTION TO CONSOLIDATE v. 20 (Doc. No. 63) BOSTON SCIENTIFIC CORPORATION, 21 Defendant 22 _____________________________________ 23 JOSEPHINE NIETO and VINCENTE CASE NO. 1:19-CV-0588 AWI SAB 24 NIETO, Plaintiffs ORDER ON PLAINTIFF’S RULE 42(a) 25 MOTION TO CONSOLIDATE v. 26 (Doc. No. 53) BOSTON SCIENTIFIC CORPORATION 27 Defendant 28 1 These are separate products liability cases brought by Plaintiffs Misty Blount, Shirley 2 Bailey, John Snavely (as successor to Roma Snavely), and Josephine and Vincente Nieto 3 (collectively “Plaintiffs”) against Defendant Boston Scientific Corporation (“Boston”). These 4 cases are part of a group of eleven cases that were transferred to this Court from the Southern 5 District of West Virginia as part of a Multi-District Litigation (“MDL”) proceeding involving 6 transvaginal mesh implants manufactured by Boston. All eleven cases have been related pursuant 7 to Local Rule 123. Currently before the Court is Plaintiffs’ Rule 42(a) motion to consolidate these 8 four cases. For the reasons that follow, Plaintiffs’ motion to consolidate will be granted. 9 PARTIES’ ARGUMENTS 10 Plaintiffs 11 Plaintiffs argue that consolidation is appropriate. Each Plaintiff was implanted with a 12 Lynx Suprapubic Mid-Urethral Sling System (“Lynx”) transvaginal mesh manufactured by Boston 13 in order to address stress urinary incontinence. Each Plaintiff experienced similar complications 14 from the Lynx and each are bringing eleven causes of action under California law.1 Each of these 15 cases share a number of expert witnesses, for both Plaintiffs and Boston, and consolidation would 16 permit the parties to call that expert only once, thus avoiding duplicative testimony and promoting 17 efficiency. If these cases are not consolidated, substantial duplication of labor and use of judicial 18 resources will occur. Witnesses will have to appear in separate trials, there would be the 19 possibility of inconsistent factual and legal determinations, and multiple juries will have been 20 empaneled, all to hear overlapping testimony and actions regarding the same medical device. 21 Further, the risk of jury confusion and prejudice can be sufficiently reduced through jury 22 instructions. Although Boston will argue that there is a risk of jury confusion and undue prejudice 23 if the cases are ordered consolidated, the Fourth Circuit and the Eleventh Circuit have both 24 approved the consolidation of cases involving transvaginal mesh manufactured by Boston. In 25 Eghnayem and Campbell, the courts found no prejudice to Boston and affirmed consolidation. 26 1 All female Plaintiffs are pursuing claims of: (1) negligence, (2) strict liability design defect; (3) strict liability 27 manufacturing defect; (4) strict liability failure to warn; (5) breach of express warranty; (6) breach of implied warranty; (7) fraudulent concealment; (8) negligent misrepresentation; (9) negligent infliction of emotional distress; 28 (10) consumer protection laws; and (11) unjust enrichment. Vincente Nieto, the spouse of Josephine Nieto brings his 1 Defendant 2 Boston argues that consolidation is improper because it will cause unfair prejudice. First, 3 permitting consolidation of these cases will present the opportunity for a jury to infer a defect and 4 causation because there are multiple plaintiffs, and provide plaintiffs with the opportunity to use 5 evidence related to one plaintiff to supplement the lack of evidence related to another plaintiff. 6 Second, the jury is likely to hear evidence that would be inadmissible in some of the cases, were 7 they tried separately. For example, evidence regarding new information and the state of 8 knowledge of the medical community that became available after an implant is inadmissible under 9 Rule 407. Snavely was implanted in 2007, but Bailey was implanted in 2011. Information 10 available before 2011 would be relevant to Bailey’s case, but if the information was available only 11 after Snavely’s implantation, the evidence would be inadmissible as to Snavely. Third, there are 12 differences between the Plaintiffs. Each Plaintiff was implanted at a different age, in different 13 years, by different doctors, and after individual consultations with their doctors to determine the 14 best course of treatment. The Plaintiffs had dissimilar medical histories, suffered from different 15 concurrent problems unrelated to the Lynx, and suffered different injuries. Moreover, the time 16 periods between manifestations of problems differ between the Plaintiffs and each Plaintiff had 17 different post-implant treatments. The factual differences between the cases could mean that a 18 product is defective in one case but not the other. Also, application of the learned intermediary 19 doctrine and the state of the art defense could affect the duty to warn that was owed to each 20 Plaintiff. All of these factors may affect the existence of a defect in a particular case. The 21 individual issues associated with each Plaintiff predominates over any common issues, and, when 22 combined with the fact that the existence of a defect could vary from Plaintiff to Plaintiff, a jury 23 could be confused and overwhelmed with the amount of technical information and seemingly 24 inconsistent results. Thus, there is a substantial danger of jury confusion and prejudice 25 26 LEGAL STANDARD 27 Federal Rule of Civil Procedure 42(a) provides: “If actions before the court involve a 28 common question of law or fact, the court may: (1) join for hearing or trial any or all matters at 1 issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary 2 cost or delay.” A district court has broad discretion to determine whether and to what extent 3 consolidation is appropriate. See Garity v. APWU Nat’l Labor Org., 828 F.3d 848, 855-56 (9th 4 Cir. 2016); Investors Research Co. v. U.S. Dist. Ct. for the Cent. Dist. of Cal., 877 F.2d 777, 777 5 (9th Cir. 1989). In deciding whether to consolidate, a court “weighs the saving of time and effort 6 consolidation would produce against any inconvenience, delay, or expense that it would cause.” 7 Huene v. United States, 743 F.2d 703, 704 (9th Cir. 1984); Single Chip Sys. Corp. v. Intermec IP 8 Corp., 495 F.Supp.2d 1052, 1057 (S.D. Cal. 2007). Further, “the law is clear that an act of 9 consolidation does not affect any of the substantive rights of the parties.” J.G. Link & Co. v. 10 Continental Cas. Co., 470 F.2d 1133, 1138 (9th Cir. 1972); see Hall v. Hall, 138 S.Ct. 1118, 1130 11 (2018) (“. . . consolidation could not prejudice rights to which the parties would have been due 12 had consolidation never occurred.”). While considerations of prejudice to a party or the likelihood 13 of jury confusion can be sufficient to deny consolidation, courts should consider whether the risks 14 of prejudice and jury confusion “can be alleviated by utilizing cautionary [jury] instructions” and 15 “controlling the manner in which [the parties’ claims and defenses] are submitted to the jury for 16 deliberation.” Eghnayem v. Boston Scientific Corp., 873 F.3d 1304, 1313-14 (11th Cir. 2017); 17 see Johnson v. Celotex Corp., 899 F.2d 1281, 1285 (2d Cir. 1990). Typically, consolidation is a 18 favored procedure. In re Oreck Corp. Halo Vacuum & Air Purifiers Mktg. & Sales Practices 19 Litig., 282 F.R.D. 486, 491 (C.D. Cal. 2012); see also Eghnayem, 873 F.3d at 1314. 20 21 DISCUSSION 22 1. Common Questions of Law or Fact 23 There is really no dispute that the four cases share common questions of law and fact. In 24 each of the four cases, the Plaintiffs are pursuing the same basic causes of action based on 25 personal injuries that were allegedly caused by the same product – the Lynx. The Plaintiffs each 26 contend that the Lynx is defective in design, manufacture, and warning, and they each seek to 27 recover compensatory damages through the same California law theories (generally negligence, 28 strict products liability, breach of warranty, and misrepresentation). Further, each plaintiff was 1 implanted with the Lynx in California in order to treat an identical medical condition (stress 2 urinary incontinence), and the Plaintiffs have experienced similar complications, including urinary 3 incontinence. These are significant and substantial common issues of law and fact. Cf. Campbell 4 v. Boston Scientific Corp., 882 F.3d 70, 74 (11th Cir. 2018) (finding that four consolidated 5 transvaginal mesh cases shared “many common quests of law and fact” where each plaintiff 6 experienced similar complications from an implanted Obtryx, each were diagnosed with/being 7 treated for stress urinary incontinence, each received the Lynx implant in West Virginia, and each 8 asserted the same products liability theories under West Virginia law); Eghnayem, 873 F.3d at 9 1312, 1314 (finding that four consolidated transvaginal mesh cases shared common issues of law 10 and fact where each plaintiff was implanted with the same mesh device and each pursued products 11 liability claims under Florida law). Because the four cases share common questions of law and 12 fact, consolidation is possible by the express terms of Rule 42(a). See Fed. R. Civ. P. 42(a); 13 Campbell, 882 F.3d at 74; Eghnayem, 873 F.3d at 1314. 14 2. Propriety of Consolidation 15 Consolidation of these four cases is highly desirable. As Plaintiffs point out, the burden on 16 some witnesses will be reduced, repetition of testimony can be avoided, only a single jury will 17 need to be called, the claims of three other Plaintiffs will be resolved more quickly, the possibility 18 of inconsistent findings is reduced, and the Court will only need to devote time and resources to 19 one trial. It is well known that the Eastern District of California has a significantly overburdened 20 docket and is in need of additional judges. Having four separate trials would have a greater impact 21 on the Court’s trial calendar than a single trial. In short, the strain of one consolidated trial is 22 substantially less on the community, the witnesses, the parties, the attorneys, and the Court than 23 four separate trials. The efficiency and desirability of consolidation in this situation is great. 24 In terms of inconvenience, delay, or expense that may be caused by consolidation, Boston 25 has not argued that any of these considerations bear on the consolidation determination. Although 26 this Court has permitted limited additional discovery, the four cases at bar have arrived following 27 significant pre-trial and discovery proceedings through the MDL process. They are in a relatively 28 advanced state of readiness. The Court cannot find that there is a significant risk of delay, 1 inconvenience, or expense from consolidation. In fact, the contrary is true. Because the Plaintiffs 2 are making the same claims involving the Lynx, and because of the cross-over of the expert 3 witnesses, separate trials would be largely repetitive, and thus implicates “the burdens, delays, and 4 expense that . . . help justify consolidation.” Campbell, 882 F.3d at 74. 5 Boston does make other arguments against consolidation. With respect to the number of 6 Plaintiffs possibly affecting fairness, the Court finds this argument to be speculative. Instead of 7 one Plaintiff, Boston will be dealing with four Plaintiffs. Four is not a large number.2 Moreover, 8 it is entirely possible to instruct the jury to treat each case separately. In both Campbell and 9 Eghnayem, the two district courts had each consolidated four cases into one. In both cases, the 10 appellate court found that jury instructions had sufficiently alleviated the potential prejudice of 11 “multiple plaintiffs.” See Campbell, 882 F.3d at 74-75 (noting that the court instructed the jury 12 “that the trial concerned four separate claims and informed them that they must treat each case as 13 ‘if each have been tried by itself,’” and that the jury was not to “even consider that more than one 14 claim was brought.”); Eghnayem, 873 F.3d at 1314-15 (noting that the jury was instructed about 15 the “consolidated nature of the trial . . . and expressly instructed it to consider each plaintiff’s 16 claims separately.”). Therefore, the Court concludes that there is no significant risk of prejudice 17 simply because Boston will have to defend itself against four plaintiffs. See Campbell, 882 F.3d 18 at 74-75; Eghnayem, 873 F.3d at 1314. 19 In terms of inadmissible evidence, Boston indicates that Federal Rule of Evidence 407 20 would bar some evidence against some of the Plaintiffs because the evidence became available 21 after the implantation of some Plaintiffs, but before the implantation of others. The Court finds 22 Boston’s argument to be speculative and unpersuasive. First, contrary to Boston’s 23 characterization of Federal Rule of Evidence 407, not all “subsequent remedial measures” are 24 inadmissible. Rather, by the express terms of Rule 407, subsequent remedial measures are only 25 inadmissible to prove negligence, culpable conduct, a defect, or the need for a warning. See Fed. 26 R. Evid. 407. If there is another purpose for the evidence, Rule 407 does not preclude admission. 27

28 2 The Court notes that multiple plaintiffs are not uncommon in federal court, particularly in 42 U.S.C. § 1983 1 Cf. Campbell, 882 F.3d at 75 (finding that it was “not clear” that evidence occurring after 2 implantation was not necessarily inadmissible); Eghnayem, 873 F.3d at 1315-17 (same). Second, 3 Boston does not actually identify any evidence that was available before one Plaintiff’s surgery, 4 but after another’s. Nor does Boston actually assert or explain how the “state of the art” was 5 different as between the four Plaintiffs. Boston is merely suggesting that there may be differences. 6 Without an express assertion that different (and relevant) information existed as between the 7 Plaintiffs, or an express assertion (and explanation of how) the “state of the art” changed as 8 between the Plaintiffs, Boston is advancing a mere hypothetical. Finally, “when evidence is 9 relevant for some purposes and not others, limiting instructions – not exclusion – are generally the 10 best way to handle the issue.” Eghnayem, 873 F.3d at 1316-17. It is unclear why limiting 11 instructions would not cure any admissibility issues. 12 Finally, with respect to individual issues predominating over common questions, some 13 courts have denied consolidation for this reason. E.g. Banacki v. OneWest Bank, FSB, 276 F.R.D. 14 567, 572 (E.D. Mich. 2011). Boston has identified a number of considerations and facts that are 15 unique to each Plaintiff. In particular, Boston stresses that the injuries suffered are not identical, 16 and the Plaintiffs were different ages, had different post-implantation treatments, and had different 17 medical histories. These individual considerations will certainly affect damages. However, the 18 fact remains that there are substantial common questions shared by all Plaintiffs. The Plaintiffs all 19 suffered injury allegedly because of the Lynx, and each are asserting the same causes of action 20 against Boston relating to the Lynx. Further, while Boston identified various differences, 21 including differing medical histories, it does not actually explain how those differences actually 22 affect causation in this case. For example, simply listing different medical conditions and 23 identifying them as “noteworthy” or “significant” does not actually show how they are significant 24 to the issue of causation. Since these conditions were identified by medical experts, the conditions 25 could be “significant” for medical reasons unrelated to causation. A particular condition might 26 have raised the risk of post-surgical complications in general, but not necessarily related to the 27 Lynx itself. Further, as Campbell and Eghnayem show, there is no reason to believe that a jury 28 cannot keep track and individually assess how the differing situations and medical histories of 1 each Plaintiff affected their damages or causation. Given the generality of Boston’s argument, as 2 well as the significant common questions of law and fact that are present, the Court cannot hold 3 that individual issues so predominate over common issues that jury confusion or prejudice would 4 likely result. The Court concludes that any danger that is present can be sufficiently alleviated 5 through jury instructions and the trial process. See Eghnayem, 873 F.3d at 1313-14 (holding inter 6 alia that “generally differences in causation are not enough, standing alone, to bar consolidation of 7 products liability claims.”). 8 In sum, the Court concludes that the considerations raised by Boston against consolidation 9 do not sufficiently outweigh the benefits of consolidation. Consolidations for trial is appropriate. 10 3. Campbell and Eghnayem 11 The arguments made by Boston in this case were essentially raised and rejected in both 12 Campbell and Eghnayem. 13 In Eghnayem, Boston argued that “the district court abused its discretion by consolidating 14 the plaintiffs’ suits, because individual issues predominated and the consolidation yielded 15 unacceptable prejudice.” Eghnayem, 873 F.3d at 1313. The Eleventh Circuit reasoned: 16 The district court did not abuse its discretion in concluding that the considerations surrounding consolidation weighed in favor of joining these suits for trial. The 17 plaintiffs all brought the same claims based largely on the same facts: BSC’s Pinnacle device was unreasonably dangerous by design, and BSC failed to include 18 sufficient warnings with the device to alert physicians to that danger. Although each plaintiff's proof of causation was necessarily different, generally differences in 19 causation are not enough, standing alone, to bar consolidation of products liability claims. And any danger of prejudice arising from the consolidation was reduced in 20 this case, because the district court explained the consolidated nature of the trial to the jury and expressly instructed it to consider each plaintiff's claims separately. 21 Notably, this is not the first time we have affirmed the consolidation of products liability claims that require individual evidence of causation. Thus, for example, in 22 Hendrix v. Raybestos-Manhattan, Inc., we affirmed a district court's decision to consolidate four products liability cases that all alleged that asbestos exposure 23 caused them to contract an asbestos-related disease, notwithstanding the presentation of different bodies of proof on causation. 24 BSC nonetheless contends that consolidation was improper because the plaintiffs’ 25 evidence was presented in a confusing and disjointed manner, but this argument is largely beside the point. Confusing or not, most of the evidence went toward the 26 common claims among the plaintiffs: (1) whether the Pinnacle was a defective medical device and (2) whether the Pinnacle’s warnings were sufficient. The only 27 evidence that went to the individual claims came from the more-easily- distinguishable doctors who did each plaintiff’s implantation, and concerned 28 comparatively straightforward questions: (1) did the Pinnacle’s design cause that 1 doctor’s decision to implant the Pinnacle. BSC has not shown that this individual evidence made the suit so confusing that it was obviously prejudiced and thus has 2 failed to tie the confusion to the consolidation order. . . . . . 3 BSC also says that consolidating the four plaintiffs for trial led the jury to believe 4 that their claims were more likely to be true, but this argument fails. For starters, the district court instructed the jury that “[y]ou may not even consider the fact that 5 there's more than one case being brought,” an instruction that the jury presumably followed. And even had the cases not been consolidated, the plaintiffs would likely 6 have been able to submit evidence of other patients with similar injuries to show the dangerous character of the Pinnacle. Moreover, consolidation of products 7 liability cases will always implicate this concern, and this Court has affirmed consolidation in these kinds of cases before. 8 BSC’s final argument is that, due to the differences in the plaintiffs’ claims, 9 consolidation allowed evidence into trial that would have been individually inadmissible for some of the plaintiffs. This claim fails as well. . . . 10 Moreover, it's far from clear that the complained-of evidence would have been 11 excludable even if each of the plaintiffs had tried their cases alone. BSC identifies three pieces of evidence that may have been inadmissible in individual trials . . . 12 evidence relating to BSC’s practices and the Pinnacle's safety that post-dated some but not all of the plaintiffs' implantations. . . . 13 . . . BSC fails to show that the evidence post-dating some of the implantations — 14 including admissions from BSC employees tending to show a pattern of insufficient research for other medical devices, and information suggesting a high erosion rate 15 for the Pinnacle — would not be admissible for at least some purposes in each individual trial. A pattern of insufficient research might be probative evidence as to 16 whether BSC designs products without due care, and the Pinnacle’s high erosion rate is surely probative of whether BSC was strictly liable for a defective product. 17 BSC is of course correct that this evidence could not have been used to show BSC’s knowledge of the risks associated with the Pinnacle for those plaintiffs 18 whose implantations predated the evidence. But when evidence is relevant for some purposes and not others, limiting instructions — not exclusion — are generally the 19 best way to handle the issue. BSC's failure to request limiting instructions here dooms this argument. 20 Quite simply, BSC cannot establish that it was prejudiced by the consolidation of 21 the plaintiffs' suits. The district court did not abuse its discretion in ordering the consolidation . . . . 22 Id. at 1314-17 (internal citations omitted). 23 In Campbell, Boston’s “primary contention [was] that the trial was rendered unfair by the 24 consolidation of four independent cases for trial.” Campbell, 882 F.3d at 74. In relevant part, the 25 Fourth Circuit reasoned: 26 The district court appropriately considered [the relevant factors] in ultimately 27 ordering consolidation. It first identified the many common questions of law and fact across the trials: The four plaintiffs were each diagnosed with stress urinary 28 incontinence before being implanted with Obtryx devices made by BSC. Each 1 that required additional medical treatment. Each plaintiff received her Obtryx implant in West Virginia and asserted the same design-defect and failure-to-warn 2 claims under West Virginia law. Because of these many similarities among the cases, the plaintiffs shared expert witnesses and relied on much of the same 3 evidence from BSC documents. BSC asserted in all four cases both that the Obtryx was not defective and that the Obtryx’s directions for use provided sufficient 4 warnings. These many similarities certainly provided the "common question[s] of law or fact" required by Rule 42(a). They also make clear that separate trials would 5 have been largely repetitive, and thus would have implicated the burdens, delays, and expense that Arnold noted help justify consolidation. 6 Of course, regardless of efficiency concerns, consolidation is not appropriate if it 7 would deny a party a fair trial. Alert to this risk, the district court endeavored throughout the trial to limit any potential jury confusion or prejudice resulting from 8 the consolidation. At the outset of trial, the district court instructed the jury that the trial concerned four separate claims and informed them that they must treat each as 9 “as if each have been tried by itself.” During the trial, BSC had the opportunity to address each plaintiff’s claims independently, and in fact pursued a comparative 10 negligence defense as to one plaintiff that it did not pursue as to the other plaintiffs. Following trial and prior to jury deliberations, the district court emphasized that the 11 jurors were not to “even consider that more than one claim was brought” in weighing the evidence and that they must consider each case separately. To 12 promote independent review of each case, the district court made use of special interrogatories on separate verdict forms for each plaintiff. 13 BSC contends that despite these protections, it was prejudiced by the admission of 14 evidence in the consolidated trial that was admissible as to only some of the plaintiffs. It chiefly complains of evidence regarding events that took place after 15 some of the plaintiffs had received their implants, arguing that these events were irrelevant as to those plaintiffs. But it is not clear that this evidence is irrelevant as 16 to any of the plaintiffs. For example, e-mail chains among BSC employees in May 2009 may shed light on what BSC knew in April 2009, when one of the plaintiffs 17 received her implant. Similarly, studies published after the women received their implants, and evidence of how BSC reacted to those studies, may be relevant both 18 to the actual safety of the product and to BSC’s general policies regarding how to handle evidence of safety risks. It may well have been within a district court’s 19 discretion to admit all of this evidence as to each of the plaintiffs even in separate trials. Indeed, BSC’s objections go more to the weight of the evidence than to its 20 admissibility. We certainly cannot say that allowing this evidence in the consolidated trial prejudiced BSC to the extent that consolidation itself was an 21 abuse of discretion.

22 Further, BSC lacks evidence that the district court’s safeguards were inadequate or that consolidation in fact resulted in any prejudice or jury confusion. . . . . 23 . . . .

24 Ultimately, it is clear that the district court was well within its discretion in consolidating these four cases for trial. To hold otherwise would be to sacrifice the 25 substantial savings of time and money that consolidation offers. Both plaintiffs and defendants benefit from lessened litigation costs and the reduced need for expert 26 testimony. Witnesses benefit from reduced demands on their time by limiting the need for them to provide repetitive testimony. The community as a whole benefits 27 from reduced demands on its resources, including reduced demand for jurors. The judicial system benefits from the freedom consolidation affords judges to 28 conscientiously resolve other pending cases. 1 Id. at 74-76 (internal citations omitted). 2 The Court has relied on and utilized much of Campbell and Eghnayem in its own analysis, 3 and it now reproduces the relevant analyses from these cases as additional support for 4 consolidation. These cases demonstrate that consolidation of transvaginal mesh cases can be done 5 in such a way as to alleviate possible prejudice to Boston.3 6 Further, since Boston was the defendant in both cases, the Court expects counsel for 7 Boston to meet and confer with Plaintiffs’ counsel regarding the safeguards that were utilized by 8 the district courts in Campbell and Eghnayem. While this Court may not necessarily follow a 9 particular instruction, procedure, or safeguard, it will find such procedure or safeguard highly 10 persuasive. If a desired safeguard that was used in Campbell or Eghnayem cannot be agreed upon 11 between counsel, then the party advocating for such safeguard shall support a request for that 12 safeguard with an excerpt from the relevant record in either Campbell or Eghnayem, if possible. 13 4. Strict Liability – Design Defect 14 In the motions to consolidate, each Plaintiff indicates that she is pursuing a claim for strict 15 liability design defect. The California Supreme Court has held that “a manufacturer of 16 prescription drugs is exempt from strict liability for defects in design . . . .” Anderson v. Owens- 17 Corning Fiberglass Corp., 53 Cal.3d 987, 995 (1991) (describing Brown v. Superior Ct., 44 Cal.3d 18 1049, 1069 (1988)). California courts have extended the exemption from strict liability design 19 defect claims to manufacturers of implanted medical devices that are available only through the 20 services of a physician.4 See Trejo v. Johnson & Johnson, 13 Cal.App.5th 110, 146 (2017); 21

22 3 Boston argues that Campbell and Eghnayem are not controlling because they address a trial that had already occurred and “address the issue of whether prejudice occurred in the past. They do not consider the issue confronting 23 the Court – whether the efficiencies possibly gained by consolidation outweigh the prejudice consolidation would cause [Boston].” The Court finds Boston’s argument to be frivolous. First, the fact that trials had occurred in 24 Campbell and Eghnayem gave Boston the opportunity to point to concrete instances of prejudice that had occurred at trial, as opposed to a mere theoretical prejudice raised pre-trial. Second, and more importantly, Campbell and 25 Eghnayem compared the standards and considerations that a district court is required to weigh and determined that consolidation was proper. That is, these cases of necessity found that the efficiency of consolidation outweighed any 26 risk of prejudice to Boston. Critically, the prejudice at issue in those cases is essentially the same prejudice identified by Boston in this case. To the extent that Boston’s feared prejudice is legally significant, these cases show that steps 27 can be taken to sufficiently negate or alleviate that prejudice.

28 4 Although strict liability design defect claims are unavailable, litigants may still pursue negligent design defect 1 | Garrett v. Howmedica Osteonics Corp., 214 Cal.App.4th 173, 184 (2013); Artiglio v. Superior Ct., 2 |22 Cal.App.4th 1388, 1397 (1994); Hufft v. Horowitz, 4 Cal.App.4th 8, 19 (1992). The Lynx 3 | transvaginal mesh would seem to fit this exemption from strict liability design defect claims. If 4 | Plaintiffs believe that their claims do not fit within the strict liability design defect exemption, they 5 | should be prepared in future proceedings to explain why it does not apply. Otherwise, Plaintiffs 6 should not represent that a claim for strict liability design defect is at issue in these cases. 7 8 ORDER 9 Accordingly, IT IS HEREBY ORDERED that: 10 } 1. Plaintiffs’ motions to consolidate are GRANTED; and 11 The cases of Blount v. Boston Scientific, 1:19-cv-0578 AWI SAB, Bailley v. Boston 12 Scientific, 1:19-cv-0583 AWI SAB, Snavely v. Boston Scientific, 1:19-cv-0585 AWI SAB, 13 and Nieto v. Boston Scientific, 1:19-cv-0588 are CONSOLIDATED under Rule 42(a) for 14 purposes of trial; and 15 }3. Within seven (7) days from service of this order, the parties shall contact the Courtroom 16 Deputy with proposed dates for a telephonic status conference, the purpose of which will 17 be to address any further outstanding issues and to set pre-trial conference and trial dates. 18 19 IT IS SO ORDERED. 209 | Dated: _ August 21, 2019 —= ZS Cb □□ SENIOR DISTRICT JUDGE 21 22 23 24 25 26 27 28