How Perilous are Consolidated Trials?

We recently were involved in two living mesothelioma cases consolidated roughly one month before trial in Solano County, CA. The cases were fully resolved after plaintiffs’ opening statement. So how adversely, if at all, were the defendants affected by the consolidation?

Some of my friends and colleagues have tried consolidated cases in the past, but I have not. This was my first experience with such a process, and I offer some observations for those of you who may have to face this in the future.

When the cases were consolidated, there were many defendants in each of the two cases and expert discovery was underway. We proceeded through hearings on motions in limine, took literally a week to pick a jury and proceeded to opening statement. Along the way many defendants dropped out. Plaintiff counsel gave his opening statement with only two defendants left in the proceedings, both of them involved in the same single case.

Since the consolidation was ordered after we had already submitted motions in limine, this meant that we needed to reconsider our filed motions in limine. For example, the claimed exposures in the two cases arose from the same worksite, but with different durations. So our motion in limine re: excluding evidence of post-sale conduct had a much different potential impact in one case than the other. And the arguments to be made in favor of it in one case were stronger than in the other. Having the motion heard in both cases at the same time had the effect of reducing our chances of success in either of them.

In expert discovery our work was made more difficult. We had to consider that something said by an expert in one case might have an adverse impact, intended or unintended, in the other. This meant attending more expert depositions and reviewing more expert reports and notes. The same applied to coworkers identified in one case, but not the other. The court made an order that a witness identified only in one case could not testify in regards to the other, and adopted a “limiting instruction” meant to clarify things for the jury. That alleviated our concerns to some extent, but did not eliminate them. How were we to prepare for testimony by a coworker for whom we did not participate in his deposition and who had not been questioned about the products of our client?

We never reached the point of writing a verdict form, or forms, but can only think that asking one jury to decide two cases simultaneously could only increase the risk of jury confusion or error.

We did pick a jury, and that was difficult indeed. Since we were to try two cases simultaneously, the court provided our prospective jurors an extra-lengthy time estimate. This meant that many on our panel sought a “hardship” excuse. We spent more than a day dealing with hardship requests. Many, many prospective jurors were excused. This effectively eliminated from our jury pool many people that a defense attorney would be happy to see.

Voir dire was equally challenging. Once the jurors understood how one might be excused for cause, it was remarkable how many professed to be unable to be fair for one reason or another.

And throughout the voir dire there were repeated references to the fact that the jurors would be listening to evidence about two men, with the same cancer, each alleging it came from exposures at the same work site. Since we were dealing with exposures at a U S Navy shipyard, it was never contemplated that the defendants would argue there was no exposure, but it still left us to worry how the jury might be impacted by hearing about two soon-to-be-fatal cancers at the same time. And as noted above, by the time plaintiff opened, there were only two defendants left, and they were both in the same single case. So we picked a jury telling them that they would hear the cases of two men with fatal cancers, and would be in the court for many, many weeks, only to have one case settle and plaintiff open for only one case that would clearly take much less time. Many of our prospective jurors had been excused based upon a trial estimate that would have proved to be much longer than what was actually needed.

Our client resolved the case during opening statements, with the final defendant doing likewise immediately thereafter. So we will never learn how the case may have been presented and decided. But we saw enough to know that orders consolidating cases for trial make a defense lawyer’s work much more challenging.

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