Man unsure of the safety of his medicine

Breaking news and expert analysis on legal and compliance issues

[Back To Home][Back To Archives]

From Products Liability Law Daily, April 14, 2014

Consolidation of 12 transvaginal mesh device cases joined for pretrial purposes was not a mass action under CAFA

By Melissa Skinner, J.D.

The pretrial consolidation of 12 cases involving 702 individuals from 26 states against the manufacturers of transvaginal mesh medical devices did not constitute proper grounds for removal of the cases to federal court because they had not been joined for trial and were not a mass action under the Class Action Fairness Act (CAFA) (P.L. 109-2). The Tenth Circuit confirmed that the cases were properly remanded back to state court. The court also refused to exercise discretion to review the determination that diversity jurisdiction did not exist in this case because the Tenth Circuit has not yet recognized the doctrine of fraudulent joinder and the court did not have freestanding jurisdiction to review this issue (Parson v Johnson & Johnson, April 11, 2014, Briscoe, M).

Background. Women who underwent transvaginal mesh device implant surgery and their spouses filed products liability suits against the manufacturers, Johnson & Johnson and Ethicon, Inc. (Johnson & Johnson). Specifically, the women filed 12 different, but nearly identical, actions in an Oklahoma state court against Johnson & Johnson, which is a corporate resident of New Jersey. None of the 12 cases contained 100 or more plaintiffs and each case had at least one plaintiff from New Jersey. Johnson & Johnson removed the matters to federal court claiming that diversity jurisdiction existed because the New Jersey women in each matter were fraudulently joined and based on jurisdiction as a mass action under CAFA. The district court allowed 11 of the 12 actions to be remanded back to state court, refusing to adopt the doctrine of fraudulent misjoinder. The district court also determined that because the woman did not propose a joint trial of the matters, the action was not a mass action under CAFA and, therefore, the federal court did not have jurisdiction to hear the matter.

CAFA. Under CAFA, a mass action, that is a civil action trying claims of 100 or more persons involving common questions of law or fact that is proposed to be tried jointly, may be removed from state court to federal court. Since each of the 12 suits in this matter involve fewer than 100 individuals bringing claims, Johnson & Johnson argued that CAFA applied because the 12 separate claims should be treated as one. In reviewing this argument, the Tenth Circuit focused heavily on what constitutes the requisite “proposal to be tried jointly,” and found that the even though the claims were joined at the state level for pretrial and discovery purposes, there was no indication by the individuals bringing claims that they intended for the matters to be tried jointly. In fact, the court noted that “[f]ar from ‘proposing’ a joint trial, [the individuals] here have explicitly disclaimed such an intention in their complaints.” As such, the court found this was not a mass action under CAFA and removal was not appropriate.

Diversity jurisdiction. While CAFA grants the appellate courts specific jurisdiction to review the remand of the case, the court found that the review of a finding relevant to diversity jurisdiction is not typically warranted on its own. Here, because the court had jurisdiction under CAFA to review the remand, it found that it had discretionary jurisdiction to review the diversity question. However, the court refused to exercise this discretion because the doctrine of fraudulent misjoinder, which supported Johnson & Johnson’s argument for diversity, had not been adopted by this circuit. Additionally, the court did not have freestanding jurisdiction to review this issue, only that which stemmed from CAFA to review the remand. Finally, the court declined to exercise the jurisdiction because in order to consider the diversity question, it would necessarily “embroil [the court] in difficult factual issues.”

The case number is 13-6287.

Attorneys: Timothy Michael Bunson (Sill Law Group) for Vickie Schmidt Parson. Andrew McAfee Bowman (Foliart, Huff, Ottaway & Bottom) and Steve Brody (O'Melveny & Myers) for Johnson & Johnson and Ethicon, Inc.

Companies: Johnson & Johnson; Ethicon, Inc.

MainStory: TopStory ClassActLitigationNews JurisdictionNews MedicalDevicesNews ColoradoNews KansasNews NewMexicoNews OklahomaNews UtahNews WyomingNews

Products Liability Law Daily

Introducing Wolters Kluwer Products Liability Law Daily — a daily reporting service created by attorneys, for attorneys — providing same-day coverage of breaking news, court decisions, legislation, and regulatory activity.


A complete daily report of the news that affects your world

  • View full summaries of federal and state court decisions.
  • Access full text of legislative and regulatory developments.
  • Customize your daily email by topic and/or jurisdiction.
  • Search archives for stories of interest.

Not just news — the right news

  • Get expert analysis written by subject matter specialists—created by attorneys for attorneys.
  • Track law firms and organizations in the headlines with our new “Who’s in the News” feature.
  • Promote your firm with our new reprint policy.

24/7 access for a 24/7 world

  • Forward information with special copyright permissions, encouraging collaboration between counsel and colleagues.
  • Save time with mobile apps for your BlackBerry, iPhone, iPad, Android, or Kindle.
  • Access all links from any mobile device without being prompted for user name and password.