A recent study of trials involving multiple plaintiffs shows combining claims in a single trial puts defendants at a disadvantage and often drives higher verdicts.
The practice is uncommon and should remain so, concludes study author Christopher Appel, an attorney in Shook, Hardy & Bacon’s Public Policy Group. Juries have a hard time separating out the evidence supporting claims by individual plaintiffs and tend to award higher damages, sometimes even awarding equal amounts to multiple plaintiffs with very different underlying health conditions.
“These findings all point to the same conclusion: the risks of unfair prejudice from a multi-plaintiff trial are significant and do not outweigh any claimed efficiency,” wrote Appel in an article, “The Consolidation Prize,” that will appear in the American Journal of Trial Advocacy.
The study looked at 42 trials involving multiple plaintiffs over 20 years. A number of the verdicts were reduced or reversed after trial, undercutting claims combining cases in a single trial increases efficiency or provides more accurate information about damages, Appel wrote.
What the data show is plaintiffs won higher verdicts in consolidated trials, even if those verdicts were later overturned. They won 36 of 42 trials, an 86% success rate, compared with a plaintiff win rate of around 50% in U.S. civil trials overall, and 40% to 50% in product liability cases.
In 15 of the cases, jurors handed down verdicts of $100 million or more, seven of those exceeded $200 million and two exceeded $1 billion. For comparison, recent data reported by the Insurance Information Institute pegged the median award in a product liability action in 2020 at $3.9 million.
One of the billion-dollar cases involved 22 women who were awarded $4.7 billion against Johnson & Johnson over claims they got cancer from talcum powder. The jury split the verdict equally among the claimants even though some had died from ovarian cancer, some were in remission, some had family histories of cancer and each had different exposures to talcum powder. (The verdict was later cut in half.)
Litigation over 3M Combat Arms earplugs included fourteen single-plaintiff trials, six of them defense victories. In the other eight, four plaintiffs won $8.2 million or less, one won $13 million and the other two won $50 million and $78 million. In multi-plaintiff trials over the same ear plugs, plaintiffs won an average of $23 million each.
Lawsuits over Pinnacle hip implants showed a similar pattern: the defense won the single-plaintiff trial, while per-plaintiff awards in three consolidated trial averaged $105 million.
“Plaintiffs overwhelmingly win, and win big, in multi-plaintiff trials because aggregation outcomes often are not reflective of the individual claims,” Appel wrote. “Jurors can get overloaded with information to the point they improperly rely on information relevant to one plaintiff and not another’s, creating the `perfect plaintiff’ who combines all the strongest cases into one composite.”
Trial judges reversed or reduced verdicts in 31% of the cases plaintiffs won, and defendants reversed another 28% on appeal. Only five verdicts, or 14%, survived, but several of those were settled before appeals were complete.
Most lawsuits settle before trial, and lawyers generally believe cases only go to trial when the two sides can’t agree on a settlement or the strength of their evidence. But if plaintiff lawyers think they have better odds of winning a consolidated trial, they have little incentive to settle. “It turns consolidation into a prize for plaintiffs to unbalance the playing field,” the author said.
Judges experimented with consolidated trials after courts were overwhelmed with asbestos lawsuits in the 1990s, but the trend has reversed and now several states ban multi-plaintiff trials over asbestos, except for close family members. Plaintiff lawyers still try to convince courts to consolidate claims, however.
Judges have commented on the unfairness of multi-plaintiff trials, in one case saying: “Consolidation risks the jury finding against a defendant based on sheer numbers, on evidence regarding a different plaintiff, or out of reluctance to find against a defendant with regard to one plaintiff and not another.” Another said: “The risks of prejudice and juror confusion substantially outweigh the benefits of consolidating.” The Mississippi Supreme Court reversed one verdict in 2004, saying the joinder of 10 plaintiffs left "little doubt" the consolidated trial "created unfair prejudice for the defendants by overwhelming the jury."
The U.S. Chamber Institute for Legal Reform highlighted many of these criticisms in a 2019 report, concluding that judges facing thousands of lawsuits sometimes combine plaintiffs in single “bellwether trials,” “with the express purpose of encouraging settlement.”
“This is hugely problematic on a number of levels,” the ILR said.
