The Eighth Circuit Paves the Way for More Removals under CAFA's "Mass Action" Provision

The Eighth Circuit’s recent opinion in Atwell v. Boston Scientific Corporation is bound to have an impact on mass action litigation nationwide. Atwell involves the interpretation of the Class Action Fairness Act of 2005 (“CAFA”), which provides for the removal from state to federal court of certain actions, including mass actions. Atwell, Nos. 13-8031, 13-8032, 13-8033, 2013 WL 6050762 at *1 (8th Cir. Nov. 18, 2013) (citing 28 U.S.C. §§ 1332(d), 1453(a)-(b)).  The term ‘mass action’ means “any civil action . . . in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact, but does not include an action in which the claims have been consolidated or coordinated solely for pretrial proceedings.” Id. (citing 28 U.S.C. § 1332(d)(11)(B)(i)-(ii)). Put another way, state court plaintiffs with common claims against a common defendant may bring separate cases with fewer than 100 plaintiffs each to avoid federal jurisdiction under CAFA -- unless their claims are “proposed to be tried jointly.” 

In Atwell, groups of plaintiffs filed product liability actions in the Circuit Court for the City of St. Louis against manufacturers of transvaginal mesh medical devices. Three groups included claims against Boston Scientific for alleged defects in its devices. These groups are referred to by the names of the first named plaintiffs: (1) Atwell, (2) Evans, and (3) Taylor. Each group consisted of less than 100 plaintiffs.

In St. Louis City, cases are initially docketed for trial in Division I, where the presiding judge sits, and assigned to a motion division judge who prepares the case for trial. As the trial approaches, the presiding judge assigns the case to a general division judge for final disposition. However the local rules allow the presiding judge to assign extraordinary cases requiring individual and continuing attention to general divisions for trial setting, pretrial motions and trial. The local rules also provide that when there are three or more actions pending in the Circuit for the City of St. Louis, involving claims of personal injury by multiple plaintiffs against the same defendants, arising out of exposure to a product, the presiding judge may reassign such cases to a single general division if the presiding judge determines that the administration of justice would be served by the reassignment. 

Under these local rules, the Atwell group moved to have its case assigned “to a single Judge for purposes of discovery and trial.” The motion did not request a common assignment with the other transvaginal mesh plaintiffs. Counsel for the Atwell group said the motion was intended “to have it assigned to the judge that’s going to try the case because of the complexity that’s going to occur all the way through . . . [t]here’s going to be a process in which to select a bellwether case to try.” The Evans and Taylor groups also moved for assignment to a single judge for pretrial and trial matters, but each group noted it was not seeking to consolidate with the other cases. Plaintiffs’ counsel argued that while the cases should not be consolidated, assignment was needed for “consistency of rulings, judicial economy, [and] administration of justice.” Following the hearing on these motions, Boston Scientific removed the cases to the Eastern District of Missouri, based on the assertion that the federal court had jurisdiction under CAFA because plaintiffs had proposed to join their cases in a mass action with more than 100 plaintiffs. However, the cases were remanded to state court on the grounds that no case included more than 100 plaintiffs and plaintiffs had not proposed that the actions be “tried jointly.” 

On appeal, the crux of the issue before the Eighth Circuit was whether the groups of plaintiffs had proposed to try their cases jointly, which would make the cases removable, or had simply asked for their respective claims to be consolidated or coordinated for pretrial proceedings, in which case removal would not be permitted. In its analysis, the Eighth Circuit looked to a Seventh Circuit case, Koral v. Boeing Co., 628 F.2d 945 (7th Cir. 2011), in which Judge Posner stated that in determining whether plaintiffs have “proposed” that their claims be tried jointly, “the proposal can be implicit.”  Koral, 628 F.2d at 947.  

The Eighth Circuit also considered, and ultimately followed, the Seventh Circuit’s approach in In re Abbott Laboratories, Inc., 698 F.3d 568 (7th Cir. 2012). Abbott Labs involved ten personal injury actions which included several hundred plaintiffs who had moved for consolidated proceedings “through trial” and “not solely for pretrial proceedings.” The Seventh Circuit reversed the district court’s remand order, pointing to plaintiffs’ request for consolidation “through trial”. Importantly, the Seventh Circuit stated: “it is difficult to see how a trial court could consolidate the cases as requested by plaintiffs and not hold a joint trial or an exemplar trial with the legal issues applied to the remaining cases. In either situation, plaintiffs’ claims would be tried jointly.” 

By contrast, the Eighth Circuit was not persuaded by the Ninth Circuit’s decision in Romo v. Teva Pharmaceuticals USA, Inc., 731 F.3d 918 (9th Cir. 2013). In Romo, the appellate court affirmed the district court’s order remanding 40 product liability actions where the plaintiffs had requested coordination (not consolidation) “for all purposes” in state court. The Eighth Circuit agreed with the dissenter in Romo, who stated: “a natural and probable consequence” of coordination was that the actions would be tried together or with bellwether trials, “which amounts to the same thing.” 

In Atwell, the Eighth Circuit noted that the statements made by plaintiffs’ counsel revealed the purpose of their motions – “a joint assignment in which the inevitable result will be that their cases are tried jointly.” The Eighth Circuit held that the motions for assignment to a single judge filed by the three plaintiff groups to the same circuit court, combined with plaintiffs’ candid explanation of their objectives, required denial of the motions to remand. 

Atwell widens the split between the Circuits regarding the interpretation of CAFA’s “tried jointly” language. In the Seventh and Eighth Circuits, even if plaintiffs argue that they want to consolidate or coordinate their cases solely for pretrial proceedings, defendants have a winning argument that the inevitable result will be to try the cases jointly, and that therefore, the cases constitute a removable mass action under CAFA. In the Ninth Circuit, at least for the time being, plaintiffs can seek coordination without risking removal to federal court.