Teague, et al v. Johnson & Johnson, et al

Filing

[10165932] Affirmed. Terminated on the merits after oral hearing. Written, signed, published. Judges Briscoe(authoring judge) , McKay and Anderson(concurring). Mandate to issue. [13-6287, 13-6288, 13-6289, 13-6290, 13-6291, 13-6292, 13-6293, 13-6294, 13-6295, 13-6296, 13-6297]

Appellate Case: 13-6287

Document: 01019232908

Date Filed: 04/11/2014

PUBLISH

Page: 1
FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

April 11, 2014

FOR THE TENTH CIRCUIT

Elisabeth A. Shumaker
Clerk of Court

VICKIE SCHMIDT PARSON;
PATRICIA SCALES; SEAWILLOW
SCHMIDT; LORRAINE
SCHUMACHER; NICOLE SCOTT;
RHONDA SECHRIST; REGINA
SELLERS; DONNA SEVERO;
JACQUELINE SHAAK; FRANK M.
SHADD; MYRTLE SHADD; PEGGY
SHANNON-MCDOWELL; CAROL
SHAW; TERRI SHAZER; SHARI P.
SHEPPART; KAREN SHERIDAN;
LIZETTE SHIELDS; KIMBERLY
SILLEN; ANGELA SILVEIRA;
ELIZABETH SIMPSON; MAHLON
SIMPSON, a/k/a Alex Simpson;
THERESA SISSON; TERESA SKAINS;
NORMA SKORUPA-TODD; CANDY
SMITH; KATHLEEN TEAGUE; SUSAN
TAGLIAFERRO; JOAN SMITH; MARIE
SMITH; JOANNE SMITH; STACEY
SMITH; ISABEL M. SMITH; MARY
SPARKS; JACKIE SPIGENER;
JUANITA STARR; DARLENE STEELE;
YLONDA STEPHENS; JUDY M.
STEPHENS; KRISTINA STEVEN;
KELLY STEVENS; KAROLYN
STEVENSON; JUDITH STONE; JACK
G. STONE; EMILY M. STROUD; JODIE
SWAN; SUE SWETNAM; APRIL
SWICK; DAVID SWICK; BARBARA
SWINGLE; JOANN SMITH,
Plaintiffs-Appellees,
v.

No. 13-6287

Appellate Case: 13-6287

Document: 01019232908

Date Filed: 04/11/2014

JOHNSON & JOHNSON; ETHICON,
INC.,
Defendants-Appellants.
-----------------------------CHAMBER OF COMMERCE OF THE
UNITED STATES OF AMERICA;
PHRMA; PRODUCT LIABILITY
ADVISORY COUNCIL, INC.;
WASHINGTON LEGAL
FOUNDATION, AMERICAN
ASSOCIATION FOR JUSTICE,
Amici Curiae.
_________________________________
KIM DARNALL; DEBBILYNN
DAVILA; JAMIE DAVIS; KIMBERLY
DENTON; JOHN DI PIERRO, SR.;
SUSIE DI PIERRO; JANET DICKE;
ANORA DIKE; SOPHIE DIMACCIO;
VALLIE DIXON; MARY DOSS;
VONDA DOUROS; DEBORAH DUBE;
STEPHANIE DUDDRIDGE;
SHERRY DUNSTON; DEANNA
EAGLES-THOMPSON; BRYN
EFSEROFF; KIM EGGINTON; BARRY
ELZIG; CHRISTINA ELZIG; LUCY
ANN ENGLEBERT; STELLA EVANS;
VERA LOIS FITZJARRELL; BETTY L.
FITZSIMMONS; ALMA FLANAGAN;
GLENDA FLEMING; SHANNON
FORD; BEVERLY FRIDLEY;
AMANDA FULLER; TONYA
GALLARDO; SUSAN GARDNER;
CHRISTY GARDOM; ASHLEY GIBBS;
MARY GOODMAN; KAREN
GOTSHALL; ESTELLA GRANILLO;
ANITA GREEN; LEANN GREUBEL;
LETICIA GRIJALVA; MARGIE
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No. 13-6288

Page: 2

Appellate Case: 13-6287

Document: 01019232908

GRIMES; HOLLY HAHN; RITA HALL;
DONNA HAMRICK; JOLEEN
HARLESS; JOHNNIE HARPER;
WANDA HARTLEY; LINDA
HARTZELL; MILDRED HATCHER;
DEBRA HAUGH; LILA HAWKINS;
PHYLLIS HAWKINS; ROBERT W.
HAWKINS; TRAVIS HAWKINS;
KITTIE HENZLIK; FLORENCE
HERNANDEZ; BONNIE HEUER; LORI
HIGDON; DEBRA HIGGINBOTHAM;
LISA HILL; NATALIE HODGKINSON;
JOYCE HOLLOWAY; CAROL
HOLZEM; VICKI HOMAN; CARLA
HOPP; CYNTHIA HOWARD; RHONDA
HUDGINS; RAMONA HULBURD;
PHYLLIS HUMAN; JENNIFER
HUTCHINS; NATALIE JO JACKSON;
ROSLYN JACKSON; TAMMY
JACKSON; ALMA JEFFRIES;
MICHELLE STATES; PATRICIA
ORDINO; BRENDA HUNNICUTT
TAYLOR,
Plaintiffs-Appellees,
v.
ETHICON, INC.; JOHNSON &
JOHNSON,
Defendants-Appellants.
-----------------------------CHAMBER OF COMMERCE OF THE
UNITED STATES OF AMERICA;
PHRMA; PRODUCT LIABILITY
ADVISORY COUNCIL, INC.;
WASHINGTON LEGAL
FOUNDATION, AMERICAN
ASSOCIATION FOR JUSTICE,
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Date Filed: 04/11/2014

Amici Curiae.
_________________________________
INOLA KILLSFIRST; JOANNE P.
MCCANN; ANNETTEE PUCKETT;
EILENE PULLIMAN; GLENDA
RAMIREZ; TONIA RAMOS; EDIE
RANEY; BEVERLY RAY; BERTHA
REAM; INDY REBHUN; MARLENE
REISINGER; PAULA REYNOLDS;
MELVIN REYNOLDS; BARBARA
ROBERTS; WANDA ROBINSON;
EFFIE ROMANS; LORI ROSE;
ELIZABETH RYAN; KELLY RYDER;
LUPE F. SALAS; BRENDA SASSER;
LINDA SHAFER; ELLA SHANKLIN;
JAMES SHARPE; SHARON SHARPE;
REBECCA SHAUGART; CLAYTON
DEAN SHUCK; SHELLY SHUCK;
ROSEANNA SIEFKER; STEPHANIE R.
SIMS; NANCY SLOAN; CAROLE
SMITH; DEBORAH A. SMITH;
MELODIE SMITH; BERNADETTE
SPEISER; PARRIS SPRINGER; SARAH
STACK; MARY STASER; BRET E.
STEPHEN; DEBORAH M. STEPHEN;
CAROLE A. STEWARD; LINDA
TALTON; BARBARA TAYLOR;
MONICA TAYLOR; IRIS TEAT; ELVA
RODRIGUEZ; CHARLENE TESSARI;
KAREN THOMAS; PATRICIA
THOMAS; LINDA THOMPSON; TONI
TUCKER; CHARLOTTE VAN BUREN;
ESTALENE VANCE; DEBBIE
VICKERS; STACIE VICKERS;
CHARLENE WALKER; KATHY LYNN
WATSON; LESLIE ANN WEINER;
SYLVIA WELCH-LANGFORD;
TAWNYA WERTHMAN; TRACY
WHITE; PAULA WHORTON; SHARON
WILES; FRIEDA WILLARD;
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No. 13-6289

Page: 4

Appellate Case: 13-6287

Document: 01019232908

Date Filed: 04/11/2014

DEBORAH WILLIAMS; SHIRLEY
WILLIAMS; SANDRA WILSON;
SHEILA WILSON; TINA WINDHOLZ;
PARTICIA WOEHLER; JOSIE
WOLD-JOHNSON; ROSETTA WOLFE;
JACKIE YANCEY; SUSAN YOAKAM,
Plaintiffs-Appellees,
v.
ETHICON, INC.; JOHNSON &
JOHNSON,
Defendants-Appellants.
_________________________________
TAMMY McCAUGHTRY; LINDA
PANNONE; TERESA MITCHELL;
MICHELE MIXON; VIRGINIA
MOCKAITIS; GLENNA B. NEZ;
FRANK NEZ; ROSE NEZ; MABLE
NOLEN; SANTOS O’BRIEN; IRMA
ONTIBEROS; RAMESHA ORMAND;
SUSAN ORR-MITROS; LAURA
OSTERLING; ANNE OWEN; GERALD
R. OWEN; DORTHY MAE PACK;
DEBORAH PARKS; DONNA PARRIS;
ASHLEY PARVIZI; MARGARET
PATNAUDE; LINDA PAULK; MARY
CONSTANCE PAULSEN; BARBARA
PERRIGUE; COLEEN PERRY;
PAMELA PERRY; FRANKLIN BRUCE
PERRY; CHERYL PITMAN; ANGELA
PITTS; DIANNE PLUMMERCHAMBERS; ELVIRA POPKEN;
MARIA PULIDO-MENDOZA;
MARGERET PYKA; JANETTE QUINN;
PAULA REES; BETTY REES; LATHA
REGHUNANTHAN; CAROL RICE;
MIRIAM RIVERA-AVILES; LOUISE
ROBERTS; MARY ROBINSON;
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No. 13-6290

Page: 5

Appellate Case: 13-6287

Document: 01019232908

Date Filed: 04/11/2014

CYNTHIA RODRIGUEZ; BELIN
ROMERO; RAMONA RUFF; BRIAN
RUFF; YALONDA RUSSLER; JAMES
RUSSLER; SYLVIA SANCHEZ;
VELMA SANDOVAL; RAQUEL
SANTIAGO-CRUZ; KAREN SARVER,
Plaintiffs-Appellees,
v.
JOHNSON & JOHNSON; ETHICON,
INC.,
Defendants-Appellants.
_________________________________
VALERIE SPEARS; MANORAMA
MAHAJAN; KATHY JOHNSON;
MELISA JOHNSON; NANCY KNIBB;
SUSAN KOBESKI; YVONNE KROUT;
LYNNE KRUSLICKY; SHERRY
LANCE; PEARLE LARSEN; SHELVA
LENZKES; SHERYL LEWIS; TERRY
LINK; VICKI LORDS; LUCY LOREDO;
AMBERLY LOWMAN; JACQUILINE
MACRI; LUCILLE MAESTAS;
PATRICIA MAGGARD; PATRICIA
MAHONEY; SYLVIA MANN;
MELISSA MARMOLEDJO; DEBORAH
MARSHALL; JAYME MASON;
JEANNINE MAZAK; KAREN
McBRIDE; PATRICIA McCARTY;
ERNESTINE McCLAIN; LETTIE
McCLURE; JOY McCLURE; CHERYL
McCLUSKEY; CHASTITY McELROY;
PAMELA McFARLIN; CHRISTINA
McLEAN; RON McLEAN; LISA
McLEOD; THELMA McMANUS;
JUDITH McSWEENEY; KAYLA
MEADOR-SHARP; DEBBIE MELNICK;
WILLIAM THOMAS; DONNA
-6-

No. 13-6291

Page: 6

Appellate Case: 13-6287

Document: 01019232908

Date Filed: 04/11/2014

MILLER; ROSEMARY MILLER;
MALINDA MILLER; DEBBI
MILLISON; GIN MILLS; APRIL
MORGAN; JOSIE MORIN; VALERIE
MORRIS; CHERISE MORROW;
CAROL MORSOVILLO; DONNA
NEAL; VIRGINIA NOBBE; LISA
NOLEN; CARYN NORMAND;
MARSHA NORONA; LUCILLE
NORRELL; NATURE ANN NUNEZ;
EVA NUNLEY; THERESA NYE;
ANGELA C. PARKER; ELIZABETH
PARMER; ALBERTA PEEK; SUSAN
PERKINS; KAREN PERRY; ROSANN
PERRY; KATHRYN PETTIT;
KRISTOPHER PETTIT; DIXIE PFEIFF;
KARIN PFLEGER; DR. HANS-PETER
PFLEGER; TERRIE PHELPS; BOBBIE
PHELPS; KRISTINA PITCHFORK;
EVELYN JEANETTE POFF; TAMERA
POWELL,
Plaintiffs-Appellees,
v.
JOHNSON & JOHNSON; ETHICON,
INC.,
Defendants-Appellants.
_________________________________
DIANA WADE; CHERYLE
THORNABAR; MONA SWOFFORD;
CRUZE TALAVERA; SHIRLEY
TANNER; ELIZABETH TARIN;
CATHERINE TARR; HEATHER
TASSIER; KARRIE TEMPLEMAN;
BLANCA TERRY; TERRY THOMAS;
CONNIE THURMOND; SCOTT
THURMOND; LILLIAN TREVINO
TILLIS; COLLEEN TODD; LESLIE

No. 13-6292

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Page: 7

Appellate Case: 13-6287

Document: 01019232908

Date Filed: 04/11/2014

VANASKEY; JULIE ANN
VANDESTOUWE; SARA VICTORA;
TONYA VOGT; CAROL WAGNER;
PAM WALKER; CAROL WARNER;
GLENA WATSON; JANET WEBB;
TERRI WEBB; CARRIE WHITE;
TERESA WHITELEY; JANICE
WHITLOCK; DOROTHY WIGGINS;
SANDRA WILKINSON; ANNELLE
WILLARD; DESTINY A. WILLEY;
LEELLEN WILLIAMS; KEWANDA
WILLIAMS; CATHY WILSON; VENUS
WITT; GERALDINE WOLF; MARY
WOOD; CHRISTINE WOODROW;
DARIA WORLEY; TERESA WRIGHT;
PAULETTE WRIGHT; TRENDA
WRIGHT; JANICE WRIGHT; GUSSIE
KELLY WYATT; PANSY WYNN;
DEBORAH YOUNG; HILDA ZAMORA;
E. LOUISE ZELLER,
Plaintiffs-Appellees,
v.
JOHNSON & JOHNSON; ETHICON,
INC.,
Defendants-Appellants.
_________________________________
KELLI GOOCH; ARLENE BRUNSON;
PEGGY ALLEN; LESLIE ALLEN;
DEBRA ANDERSON; THOMAS
ANDERSON; GWEN ANDRESHAK;
BEVERLEY ARMOUR; KARINA
ASUNCION; PAMELA ATKINSON;
LAURA BABB; STEPHANIE BANKS;
MARY BARAJAS; VICTORIA
BARCLAY; BREND BARTRAM;
MARJEAN BAXLEY; JUDITH
BAXTER; CINDY BEHLER; THELMA

No. 13-6293

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Page: 8

Appellate Case: 13-6287

Document: 01019232908

BENDA; STEFANI BENDER; TERESA
BENDER; MARY BLAIR; JENNIFER
BOCK; BARBARA LYNN BOWMAN;
GLORIA BRADFORD; LEAH
BRADFORD; LARRY BRADFORD;
CRYSTAL BRANNON; JENNIE
BRANTLEY; DELORES BROCK;
ANDREA BROWN; BRENDA BROWN;
SANDRA BROWN; JUDY BROWN;
STEPHANIE BROWN; GAYLE BUCK;
POLLY BUEBLER; JOY
BULLINGTON; LINDA BULLOCK;
RAYMOND C. BULLOCK; MARYANN
BURKHOLDER; SHERRY
BURRICHTER; MARTHA BYARS;
MARY CAMACHO; GLYNN
CAMBELL; PAULA CAMPBELL;
PHYLLIS CAMPBELL; ARLINE
CANNATA; EUNICE CANTU; JO ANN
CAPUA; YVONNE CARRABINE;
LORENA CARTAGENA; ANGELLA
CARTER; SHUNTEL CATER; JOYCE
CARVALHO; MELISSA CHAVEZ;
MICHELE COLBURN; MARGARET
COLCORD; BELINDA COLLINS;
PEGGY COOPER; GARY J. COOPER;
ELIZABETH COOPER; ANITA
COOPER; PATRICIA COPELAND;
TRACI COVEY; DONNA
COVINGTON; SONIA COX; ROSALIE
CRACCHIOLO; STEVEN METEJA;
CAROLYN CRAFT; ANNA CREEK;
BRANDI CURRY; DEBORAH CURTIS;
MARIE CUSHENBERRY; RITA
DAIRY; DONNA DALTON,
Plaintiffs-Appellees,
v.
JOHNSON & JOHNSON; ETHICON,
INC.,
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Date Filed: 04/11/2014

Defendants-Appellants.
_________________________________
TERESA MARIE ANDERSON; LYNN
SCHNEIDER; MICHAEL SCHNEIDER;
IHSAN ABUZALAF; LAURA
ABUZALF; JUNE ADAMS; THERESA
ADAMS; TERRY ALES; CATHERINE
ALVAREZ; MICHELE ANGELNIEROP; SALLY ANHORN;
SHANNON ARLET; AGNES
ARMSTRONG; ALBERT
ARMSTRONG; JANICE ARNOLD;
DEBRA ATKINSON; HARLEY C.
ATKINSON; BILL AUGER; SHELLIE
AUGER; LINDA AUSTIN; LOUISE
AYVAZIAN; RALPH AYVAZIAN;
JUDY BAGROWSKI; WAYNE
BAGROWSKI; SHIRLEY BARBER;
JILL BARTOLOMIE; BRENDA
BEDOKSY; THERESA BELT; TROY
BELT; LYNN MARKETTE BAYLISS;
MARTHA BENAVIDES; ANGELA
BENFORD; JENNIE BENNETT;
CHARLENE BERG; GLENNA
BERGMAN; SHARON BERRONG;
CANDACE BERRY; WANDA BLACK;
KATHLEEN BLASKO; MELISSA
BLAYLOCK; MARY BONEFAS;
JENNIFER BOSCH; SAN JUANITA
BOTELLO, a/k/a Janie; RAMIRO
BOTELLO, SR.; AUDREY
BOUGHNER; JACQUELINE BOUNDS;
DORI BOYER; TAMMY BRANTLEY;
CAROL BRENNAN; NINA BROWN;
SHERRIAN BROWN,
Plaintiffs-Appellees,
v.
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No. 13-6294

Page: 10

Appellate Case: 13-6287

Document: 01019232908

Date Filed: 04/11/2014

JOHNSON & JOHNSON; ETHICON,
INC.,
Defendants-Appellants.
_________________________________
ILARAE J. PAGE; COLLEEN M.
MORGAN; DEBRA JENKINS;
GERALDINE JENKINS; DEANNA
JENKINS; PATRICIA JINRIGHT;
NELLIE JOHNS; CAROLYN
JOHNSON; JENNIFER JOHNSON;
NICOLE JOHNSON; TAMMIE
JOHNSON; CHRISTINE JORDAN;
SHERRY KEEFFE; CHRISTY KEITH;
KEVIN KEITH; JANA KELLENBENZ;
DANETTE I. KNODE; GRACE KORN;
SANDRA KORPI; JOSEPHINE
KOSIOL; BRENDA KRAFT; JENNIFER
KRAMER; SUSAN KRENGULEC;
ROSEMARY LASCAREZ; LILLIE
LENNEAR; DEBRA LEONOR; JEAN
ANN LEWIS; TAMMY LINDSAY;
CAROL LINN; NANCY LITKE; MARIA
LOPEZ; FLORENCE LYNCH; JOHN A.
LYNCH, SR.; JOYCELIN LYNCH;
MARTHA MARKHAM; ETHEL
MARRUFO; BELINDA MARTINEZ;
DENISE MARTINEZ; KAREN
MASSAMILLO; DANAN LIEVENS;
JANET MCCARTHY; REBEKAH
MCCARTNEY; CHERYL MCCLAIN;
RACHELLE MCCLARREN; BETTY
MCDONALD; JACK MCDONALD;
JILL MERCADO; ESSIE
MIDDLEBROOKS; DAWN MILLER;
CARLA MIRACLE,
Plaintiffs-Appellees,
v.
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No. 13-6295

Page: 11

Appellate Case: 13-6287

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Date Filed: 04/11/2014

JOHNSON & JOHNSON; ETHICON,
INC.,
Defendants-Appellants.
__________________________________
LARRY JOHN COZART; R JUDITH
DEMCHAK; BRADLEY DEMCHAK;
JAMIE DEVISH; JENNIFER DOBBINS;
SANDRA DOCTOR; GEORGE
DOCTOR; SANDY DODGEN; PHILLIP
DUDGEN; DEBORAH DOYLE;
GRACIELA DRANOWOSKY;
TERESEA ANN DUNN; MARILYN
ECOFF; MARYANN EICH;
COLINNETTE EILERS; LISA ELDER;
DEBRA ELWARD; DELORES
FARMER; ZELLA FARMER; SHELLY
FARNSWORTH; VALERIA FAVORS;
BERNADETTE FEIKERT; LINDA
FERGUSON; NORMA FISHER;
MARGUERITE FLETCHER; TARA
FOOTE; CORISA FORD; SHEILA
FORRESTER; BRIDGET FOWLER;
LAURA FOX; KATHERINE FRANKS;
TAWNEY FRANTZ; SALLY
FRAWLEY; SANDRA FREELAND;
PAMELA FRENO; CATHY
FRESHWATER; SUSAN FRONEK;
PATRICIA FUINO; ANNA FULGHAM;
DIANA GABRIEL; MARIA GALARZA;
ROSAMARIA GARCIA; SHERILYN
GARDNER; SHEILA GARRETT; JOY L.
HALLIBURTON; LUZ LORA,
Plaintiffs-Appellees,
v.
ETHICON, INC.; JOHNSON &
JOHNSON,
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No. 13-6296

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Appellate Case: 13-6287

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Date Filed: 04/11/2014

Defendants-Appellants.
__________________________________
SARAH RUTH ALLBRITTON;
WARREN BELL; EVELYN
BROWNLEE; ROBIN BRUHN;
ELIZABETH BRUNA; JUSTIN BRUNA;
TERRY BRYSON; JUNE BUENO;
BERNESSA BURSE; BRENDA
BURTON; VIRGINIA BUSBY;
SHARAN BUSH; CANDICE BYRUM;
TERRY E. BYRUM; JAMIE
CALDWELL; PATRICIA A. CARTER;
DIANE CHAMBERS; JACQUELINE
CHANEY; CHARLES H. CHANEY, IV;
MARGIE CHAPMAN; JEANETTE V.
CHESSER; MARY CHRANE; JOAN
CLARKE; SANDY CLAY; PATRICIA
CLIMER; JANICE COATES; JANICE
COLL; JANICE COLLINS; RONNILYN
COLLINS-BELL; JAMES COON;
SHARRON COON; JOANN COOPER;
TAMARA BETH CORNELIUS;
PATRICIA CORONEL; ZULEMA
CORTEZ; CYNTHIA COURTNEY;
MARGO HENDERSON
CROSTHWAITE; JOSE CRUZ;
PRISCILLA CRUZ; SHAWN CURRO;
CYNTHIA DANIELS; SANDRA
DAVIDSON; MISTY DE GROAT;
JEANETTE DE MAUNEY;
CHARLOTTE DEHN; PATRICIA
DEITERING; NORMA DELEON,
Plaintiffs-Appellees,
v.
ETHICON, INC.; JOHNSON &
JOHNSON,
Defendants-Appellants.
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No. 13-6297

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Date Filed: 04/11/2014

Page: 14

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. Nos. 5:13-CV-00832-L, 5:13-CV-00833-L, 5:13-CV-00834-L,
5:13-CV-00836-L, 5:13-CV-00838-L, 5:13-CV-00839-L, 5:13-CV-00840-L,
5:13-CV-00841-L, 5:13-CV-00844-L, 5:13-CV-00845-L, 5:13-CV-00846-L)

Stephen D. Brody of O’Melveny & Myers LLP, Washington, D.C. (Larry D.
Ottaway, Amy Sherry Fischer, and Andrew M. Bowman of Foliart, Huff, Ottaway, &
Bottom, Oklahoma City, Oklahoma; Richard B. Goetz of O’Melveny & Myers LLP,
Los Angeles, California, with him on the brief) for Defendants-Appellants.
Julie L. Rhoades of Matthews & Associates, Houston, Texas (Timothy M. Bunson,
Sill Law Group, Edmond, Oklahoma, with her on the brief), for Plaintiffs-Appellees.
Richard A. Samp and Cory L. Andrews, Washington, D.C., filed an amicus curiae
brief for the Washington Legal Foundation.
Jeremy B. Rosen and Steven S. Fleischman, Horvitz & Levy, LLP, Encino,
California, filed an amici curiae on behalf of the Chamber of Commerce of the
United States of America and PHRMA; Kate Comerford Todd and Tyler R. Green,
National Chamber Litigation Center, Inc., Washington, D.C., filed an amicus curiae
brief on behalf of the Chamber of Commerce of the United States of America; James
M. (Mit) Spears and Melissa B. Kimmel, Washington, D.C., filed an amicus curiae
brief on behalf of PHRMA.
Anita Hotchkiss, Matthew S. Lerner, and Brendan T. Fitzpatrick, Goldberg Segalla
LLP, Princeton, New Jersey; Hugh F. Young, Jr., Esq., Product Liability Advisory
Council, Inc., Reston, Virginia, filed an amicus curiae brief on behalf of Product
Liability Advisory Council, Inc.
J. Burton LeBlanc, IV, American Association for Justice, Washington, D.C.; Louis
M. Bograd, Center for Constitutional Litigation, P.C., Washington, D.C., filed an
amicus curiae brief on behalf of the American Association for Justice.
Before BRISCOE, Chief Judge, McKAY and ANDERSON, Circuit Judges.
BRISCOE, Chief Judge.
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In the Class Action Fairness Act of 2005, 28 U.S.C. §§ 1332(d), 1453
(“CAFA” or “Act”), Congress authorized the removal of certain class actions from
state to federal court. The Act’s primary objective was to “ensur[e] Federal court
consideration of interstate cases of national importance.” Standard Fire Ins. Co. v.
Knowles, 133 S. Ct. 1345, 1350 (2013) (internal quotation marks omitted). To this
end, CAFA also provides for the removal of “mass actions” that do not qualify as
traditional class actions, see Fed. R. Civ. P. 23, but which otherwise meet the Act’s
criteria, Visendi v. Bank of Am., N.A., 733 F.3d 863, 867 (9th Cir. 2013); see also
28 U.S.C. § 1332(d)(11)(A), (B).
CAFA defines a mass action as “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 and fact.” Id.
§ 1332(d)(11)(B)(i). The Act excludes from the term “mass action,” inter alia, any
civil action in which either “the claims are joined upon motion of a defendant,” or
“the claims have been consolidated or coordinated solely for pretrial proceedings.”
Id. § 1332(d)(11)(B)(ii)(II), (IV).
The controversy before us began when 702 plaintiffs from 26 different states
and the Commonwealth of Puerto Rico filed twelve nearly identical product liability
actions against the defendants in the District Court of Pottawatomie County,
Oklahoma. The defendants are manufacturers of transvaginal mesh medical devices.
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The plaintiffs are women who were implanted with the devices and their husbands,
who assert loss-of-consortium claims.
None of the individual actions contained 100 or more plaintiffs. Each of the
actions included at least one New Jersey resident plaintiff. Each complaint
specifically disclaimed federal question and federal diversity jurisdiction, and
included provisions that admitted the claims had been joined for the purpose of
pretrial discovery and proceedings but disclaimed joinder for trial purposes. All
twelve actions were assigned to the same state court judge.
The defendants, corporate residents of New Jersey, removed the actions to the
United States District Court for the Western District of Oklahoma, relying on both
diversity jurisdiction and CAFA removal jurisdiction. They argued that complete
diversity existed between the parties because in each action, the New Jersey citizen
plaintiff had been fraudulently joined and should therefore be disregarded for
diversity purposes. They further contended that jurisdiction was available under
CAFA’s “mass action” provision because, by filing all of the suits in the same court
before the same judge, plaintiffs had proposed a joint trial of claims involving more
than 100 plaintiffs.1

1

The parties do not dispute the existence of any other requirement for CAFA
removal jurisdiction.

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Plaintiffs moved to remand eleven of the actions, involving 650 plaintiffs,2 to
state court. The district court granted their motion. It declined to adopt the
procedural misjoinder doctrine advocated by the defendants, and concluded that
plaintiffs had not in fact proposed a joint trial of their claims, as required for CAFA
removal jurisdiction. Halliburton v. Johnson & Johnson, ___ F. Supp. 2d ___,
Nos. CIV–13–832–L, CIV–13–833–L, CIV–13–834–L, CIV–13–836–L,
CIV-13-838–L, CIV–13–839–L, CIV–13–840–L, CIV–13–841–L, CIV–13–844–L,
CIV–13–845–L, CIV–13–846–L, 2013 WL 5719016 (W.D. Okla. Oct. 18, 2013).
We now affirm the district court’s order remanding these cases to state court.
I. APPELLATE JURISDICTION
Ordinarily, an order remanding a removed case to state court is not
appealable. 28 U.S.C. § 1447(d). CAFA provides an exception by permitting a court
of appeals to review an order remanding a class action—including a mass action—to
state court “if application is made to the court of appeals not more than 10 days after
entry of the order.” Id. § 1453(c)(1). The defendants filed a timely application to
appeal. We therefore have jurisdiction to review the order of remand under CAFA.

2

Plaintiffs did not move to remand one of the actions, Bridgewater, et al. v.
Johnson & Johnson, et al., CIV-13-843-L, involving 52 plaintiffs from 15 states.
Bridgewater was eventually transferred to the United States District Court for the
Southern District of West Virginia, for consolidated or coordinated pretrial
proceedings in a multi-district litigation pending within that court, and is therefore
not before us.
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We discuss our jurisdiction to review the district court’s determination concerning
diversity jurisdiction in Part III, infra.
II. REMAND UNDER CAFA
“We review the district court’s ruling on the propriety of removal de novo.”
Frederick v. Hartford Underwriters Ins. Co., 683 F.3d 1242, 1245 (10th Cir. 2012).
The issue here is a narrow one: whether a joint trial involving the claims of 100 or
more persons has been proposed, thus making plaintiffs’ claims a “mass action”
removable to federal court. At the outset, we note that it seems clear that the
plaintiffs’ choice to file separate suits, each containing fewer than 100 plaintiffs,
cannot simply be disregarded as procedural gamesmanship and their “civil action”
summarily treated as a single one containing 650 plaintiffs. On that point, we adopt
the well-established principle, explained in several persuasive cases from our sister
circuits, that “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.’”
Atwell v. Boston Scientific Corp., 740 F.3d 1160, 1162-63 (8th Cir. 2013) (collecting
cases); see also Scimone v. Carnival Corp., 720 F.3d 876, 884 (11th Cir. 2013)
(“Every other court of appeals confronted with this question has come to the same
conclusion: that plaintiffs have the ability to avoid § 1332(d)(11)(B)(i) jurisdiction
by filing separate complaints naming less than 100 plaintiffs and by not moving for

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or otherwise proposing joint trial in the state court.”); Tanoh v. Dow Chem. Co.,
561 F.3d 945, 953 (9th Cir. 2009).
Plaintiffs have conceded that their claims involve common questions of law
and fact. The real battle here is over whether the plaintiffs’ filing of these cases in
the same Oklahoma court, even if permissibly divided into eleven different actions,
proposed a joint trial involving all of their claims. In support of their argument that it
did, the defendants emphasize that “a joint trial can take different forms as long as
the plaintiffs’ claims are being determined jointly.” In re Abbott Labs., Inc., 698
F.3d 568, 573 (7th Cir. 2012). By placing their claims before the single Oklahoma
judge, they argue, the plaintiffs have implicitly proposed a joint trial under CAFA
through their litigation conduct. Given this reality, the defendants urge us to
disregard plaintiffs’ express statement that they have not joined their claims for trial.
To hold otherwise, they claim, would be to exalt form over substance, sanction
procedural gamesmanship, and thwart the Congressional intent behind CAFA.
The plaintiffs respond that CAFA’s definition of a “mass action” is a narrow
one, and that removal statutes are to be strictly construed against removal. They
argue that they are masters of their complaint, which they deliberately structured to
avoid federal jurisdiction under CAFA. The plaintiffs emphasize that they have
“consolidated or coordinated” their claims “solely for pretrial proceedings,” thus
bringing themselves within the exclusion in 28 U.S.C. § 1332(d)(11)(B)(ii)(IV).

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A. Statutory Text
We begin our analysis with the statutory text. See, e.g., Scimone, 720 F.3d at
881 (“The starting point for interpreting what constitutes a proposal for a joint trial
. . . is the language of the statute itself.” (internal quotation marks omitted)).
Although plaintiffs argue that removal statutes should be strictly construed against
removal, this principle of construction does not defeat the general principle of
statutory construction that terms used in a statute should be given their plain
meaning. See Miss. ex rel. Hood v. AU Optronics Corp., 134 S. Ct. 736, 744 (2014)
(interpreting the term “plaintiffs” as used in CAFA “in accordance with its usual
meaning,” leading to an easy-to-apply rule, and noting that “when judges must decide
jurisdictional matters, simplicity is a virtue”).
The relevant text is that defining “mass action” as “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 and fact.”
28 U.S.C. § 1332(d)(11)(B)(i). CAFA does not explicitly define either a “proposal”
or a “joint trial.” It does not specify who can make such a proposal—the plaintiffs
only, or the district court through an order of consolidation or coordination. It does
not tell us how to distinguish between a proposal for joint pre-trial proceedings and a
proposal that claims be tried jointly. And it does not define how such a proposal may
be made.

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Nevertheless, we have little difficulty under the circumstances presented here
in determining that neither the plaintiffs, nor the state court, have “proposed” a “joint
trial” within the meaning of the statute. Not only does CAFA’s plain language
support this result, but as will be seen, the legislative history and persuasive authority
from the Supreme Court and other circuits also lend support to this conclusion.
First, the common usage of the word “propose” involves an intentional act. To
“propose” means “to suggest (something, such as a plan or theory) to a person or
group of people to consider”; “to plan or intend to do (something)”; or “to suggest
(someone) for a job, position, office, etc.” Merriam-Webster Online Dictionary,
http://www.merriam-webster.com/dictionary/proposed (visited March 29, 2014).
See Scimone, 720 F.3d at 884 (“The more natural reading of the [mass action]
provision is that the plaintiffs must actually want, or at least intend to bring about,
what they are proposing.”).
Far from “proposing” a joint trial, plaintiffs here have explicitly disclaimed
such an intention in their complaints.3 Their intention to avoid CAFA jurisdiction is
also consistently reflected in their litigation conduct. They have not requested
consolidation of their claims for trial, and there is no indication that the state court
has itself “proposed” such a consolidation. Certainly, no explicit proposal for a joint
3

The complaints state that “[j]oinder of Plaintiffs’ claims is for the purpose of
pretrial discovery and proceedings only and is not for trial.” Aplt. App., Vol. I
at 223a.

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trial has been made, either in plaintiffs’ complaints or in any other document that
forms part of the record before us.
The defendants contend, however, that plaintiffs made an implicit proposal for
a joint trial through their choice of a common forum for their claims. But even if a
proposal for joint trial may be made implicitly under certain circumstances,4 nothing
in CAFA’s plain language supports the concept that such a “proposal” may be
inferred simply because plaintiffs filed within a single jurisdiction separate
complaints containing similar claims, where they made no request that the claims be
consolidated or coordinated for trial in any way.5 Furthermore, defendants’ attempts
to persuade us that the plaintiffs’ complaints are in essence already consolidated or
coordinated cannot, by statutory definition, itself create a “mass action,” because a
mass action cannot result from a proposal for joinder by the defendants. 28 U.S.C.
§ 1332(d)(11)(B)(ii)(II); see also Anderson v. Bayer Corp., 610 F.3d 390, 393-94

4

The Seventh Circuit has stated that under CAFA, “a proposal for a joint trial
can be implicit.” Abbott Labs., 698 F.3d at 572. But none of the examples provided
in Abbott Laboratories—the filing of a single complaint containing more than 100
plaintiffs; a proposal for a trial involving exemplary plaintiffs, to be followed by the
application of issue or claim preclusion to more than 100 claims; or an express
request for consolidation through trial—approaches the circumstances presented here.
We therefore conclude Abbott Laboratories is distinguished from our case.
5

The defendants’ position seems to rest on an assertion that a joint trial is a
necessary consequence of the plaintiffs’ choice of a common forum to hear their
complaints. Although it is an ancient principle in the law that a party “must be
presumed to intend the necessary consequences of his acts,” Toof v. Martin, 80 U.S.
40, 48 (1871) (emphasis added), here it is too early to tell whether a joint trial will be
such a “necessary consequence” of the plaintiffs’ Oklahoma filings.
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(7th Cir. 2010) (“[Defendant’s] argument that these separate lawsuits be treated as
one action is tantamount to a request to consolidate them—a request that Congress
has explicitly stated cannot become a basis for removal as a mass action”); Tanoh,
561 F.3d at 953-54 (noting that the defendant, “while never formally moving to
consolidate plaintiffs’ claims—urges us to treat those claims as if they should have
been consolidated for purposes of removal under CAFA . . . .[This] request precisely
fits the statutory limitation [in § 1332(d)(11)(B)(ii)(II)].”).
We find further support for this understanding by considering the applicable
terms within their statutory context. The fact that Congress excluded from the
definition of a “mass action” claims consolidated merely for pretrial proceedings,
see 28 U.S.C. § 1332(d)(11)(B)(ii)(IV), even if such claims would otherwise meet the
definition of a “mass action,” suggests that the mere act of filing separate but
similarly-worded complaints against a common defendant in the same court does not
necessarily constitute a proposal for a joint trial. Congress clearly contemplated
situations in which the claims of 100 or more persons would be deliberately filed and
consolidated for pretrial purposes only—likely within the same court—without
coming within the definition of a “mass action.”
This brings us to the other significant phrase requiring analysis: a “joint trial.”
A “trial” is “[a] formal judicial examination of evidence and determination of legal
claims in an adversary proceeding.” Black’s Law Dictionary 1644 (9th ed. 2009). A
“joint trial” is “[a] trial involving two or more parties.” Id. We agree with the
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defendants that a “joint trial” need not involve all 650 plaintiffs being seated together
in the same courtroom at the same time. But we cannot agree that plaintiffs’ filing of
eleven suits in the same Oklahoma court—even given the likelihood that measures of
judicial economy, scheduling, and organization such as bellwether trials may
eventually be employed in connection with the “examination of evidence and
determination of legal claims”—necessarily implies an existing “proposal” for a
“joint trial.” See Anderson, 610 F.3d at 394 (noting that a proposal for some form of
joint trial “seems possible (perhaps even likely) at some future point in these cases,
given the similarity of their claims. But it is not yet a certainty, and Congress has
forbidden us from finding jurisdiction based on [defendant’s] suggestion that the
claims be tried together”); Koral v. Boeing Co., 628 F.3d 945, 947 (7th Cir. 2011)
(stating that the plaintiffs’ prediction of what might happen if the judge decided to
hold a mass trial was not the same as a proposal for such a trial); cf. Visendi,
733 F.3d at 868 (“Whether Plaintiffs’ claims ultimately proceed to a joint trial is
irrelevant” to question of whether a joint trial had been proposed at the time of
removal.).
We therefore reject defendants’ argument that under the circumstances of this
case, plaintiffs have implicitly proposed a joint trial. Because there is no joint trial
proposed, plaintiffs’ claims do not represent a “mass action” and the district court
properly remanded them to state court.

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B. CAFA’s Purposes and Origin
Although the application of CAFA’s plain language is sufficient for us to
affirm the district court here, we note that an examination of the purposes and origin
of CAFA also supports our conclusion that plaintiffs have not proposed a joint trial.
CAFA’s stated purposes are to “assure fair and prompt recoveries for class members
with legitimate claims;” to “restore the intent of the framers . . . by providing for
Federal court consideration of interstate cases of national importance under diversity
jurisdiction;” and to “benefit society by encouraging innovation and lowering
consumer prices.” CAFA § 2, Pub. L. No. 109-2, 119 Stat. at 5 (2005). The Senate
Report accompanying CAFA explains that mass actions were added to the Act
because “[m]ass action cases function very much like class actions and are subject to
many of the same abuses.” S. Rep. No. 109-14, at 46 (2005). The primary “abuses”
Congress identified were misuse of the “complete diversity requirement” and abuse
of the “amount-in-controversy” requirement. Id. at 10.6 Neither is at issue in this
CAFA removal action.
Moreover, the Senate Report describes a mass action as “any civil action in
which 100 or more named parties seek to try their claims for monetary relief
together.” Id. at 44 (emphasis added). The definitional emphasis here is on the
plaintiffs’ intent, on what they “seek” to accomplish. As we have already explained,
6

Under CAFA, the aggregate amount in controversy must exceed “$5,000,000,
exclusive of interest and costs,” and at least one plaintiff must be a citizen of a state
or foreign state different from that of any defendant. 28 U.S.C. § 1332(d)(2), (6).
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there has been no showing that plaintiffs here have sought to conduct a joint trial of
their claims.
C. Existing Case Law
Cases in this area necessarily are fact-specific, due to the need to apply
CAFA’s statutory principles to the particular jurisdictional facts involved.
Nevertheless, we also find support for our approach in Supreme Court authority and
in cases from other circuits.
1. Supreme Court Authority
In Mississippi ex rel. Hood v. AU Optronics Corp., 134 S. Ct. 736, 740 (2014),
the state of Mississippi filed a state court parens patriae suit against manufacturers,
marketers, sellers, and distributors of liquid crystal display panels, alleging violations
of the Mississippi Consumer Protection Act and the Mississippi Antitrust Act. The
defendants removed the action to the Southern District of Mississippi. The federal
district court subsequently granted the Mississippi attorney general’s motion to
remand to state court, citing CAFA’s “general public” exception.7 The Fifth Circuit
reversed, holding that the case qualified as a “mass action” but that the “general
public” exception did not apply.

7

CAFA excludes from the definition of a mass action “any civil action in which
. . . all of the claims in the action are asserted on behalf of the general public (and
not on behalf of individual claimants or members of a purported class) pursuant to a
State statute specifically authorizing such action.” 28 U.S.C.
§ 1332(d)(11)(B)(ii)(III).
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The Supreme Court reversed the Fifth Circuit decision. The Court reasoned
that even if 100 or more unnamed persons were “real parties in interest,” this was
insufficient to establish that the state had filed a “mass action.” Id. at 741-42. The
Court noted that “the statute says ‘100 or more persons,’ not ‘100 or more named or
unnamed real parties in interest.’ Had Congress intended the latter, it easily could
have drafted language to that effect.” Id. at 742. Moreover, “the term ‘persons’ in
§ 1332(d)(11)(B)(i) refers to the individuals who are proposing to join as plaintiffs in
a single action,” not to proposed but unnamed real parties in interest. Id.
Most significantly for the issues in this case, the Court then went on to discuss
the Court of Appeals’ reliance on “background principles” of CAFA. The Fifth
Circuit had claimed to be looking to the substance of the action rather than the labels
the parties had attached to it. The Supreme Court concluded that Congress did not
intend that courts engage in such a background inquiry when deciding whether a suit
is a mass action. Id. at 745-46. The Court found significant CAFA’s express
provision that a mass action would not include “any civil action in which . . . the
claims are joined upon motion of a defendant.” Id. at 746 (quoting 28 U.S.C.
§ 1332(d)(11)(B)(ii)(II)). With this language, “Congress demonstrated its focus on
the persons who are actually proposing to join together as named plaintiffs in the
suit.” Hood, 134 S. Ct. at 746. The Supreme Court’s reasoning here suggests a
narrow focus on the statutory language, and on the plaintiffs actually named in the
suit.
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The defendants find a contrary principle stated in Standard Fire Ins. Co. v.
Knowles, 133 S. Ct. 1345 (2013). In that case, the Court cautioned us, in performing
the CAFA analysis, against “treat[ing] a nonbinding stipulation as if it were binding,
exalt[ing] form over substance, and run[ning] directly counter to CAFA’s primary
objective: ensuring Federal court consideration of interstate cases of national
importance.” Id. at 1350 (internal quotation marks omitted). But “[t]he holding of
Knowles, which concerns a different section of the statute, plainly does not address
the issue presented in this case.” Scimone, 720 F.3d at 886. In Knowles, a stipulation
concerning the amount in controversy purported to bind absent class members that
could not be legally bound before the class was certified. Here, the named plaintiffs,
through their attorneys, have stated in their complaints that they do not intend to try
their cases jointly. We therefore distinguish Knowles from the circumstances in our
case.
2. Authority from Other Circuits
We have found no published case from another circuit that tracks precisely
with what we view as the essential facts of this case: the filing of eleven separate
suits, each containing fewer than 100 plaintiffs, but in the aggregate containing far
more than 100 plaintiffs, assigned to the same state-court judge, with each complaint
noting that the claims within the complaint would be consolidated for pretrial and
discovery purposes, but containing an express disclaimer of any request that the
claims be jointly tried. Cf. Atwell, 740 F.3d 1161 (three groups of plaintiffs, each
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comprising fewer than 100 plaintiffs, filed motions proposing that the state court
assign each group to a single judge for purposes of discovery and trial; CAFA
jurisdiction present); Visendi, 733 F.3d at 867-68 (plaintiffs’ initial complaint
proposed a joint trial in state court, and their claims involved “common questions of
law or fact” sufficient to justify removal under CAFA; CAFA jurisdiction present);
Romo v. Teva Pharm. USA, Inc., 731 F.3d 918, 921, 923 (9th Cir. 2013) (plaintiffs
sought coordination of multiple actions under a California Rule of Civil Procedure
that did not limit coordination to pretrial matters, stating they wished to avoid danger
of “duplicative discovery, waste of judicial resources and possible inconsistent
judicial rulings on legal issues,” that they wished to consolidate “for all purposes,”
and to avoid “inconsistent . . . judgments”; CAFA jurisdiction absent), reh’g en banc
granted, 742 F.3d 909 (9th Cir. 2014);8 Scimone, 720 F.3d at 883 (plaintiffs filed two
suits with 100 or more plaintiffs in the aggregate, and never moved for consolidation;

8

The majority opinion in Romo drew a strong dissent from Judge Gould. He
noted that “[p]roposals for joint trials may be made implicitly, and a joint trial may
take different forms as long as the plaintiffs’ claims are being determined jointly.”
Romo, 731 F.3d at 925 (Gould, J., dissenting). He provided the example of an
exemplary or bellwether trial, which “may only feature a small group of plaintiffs,
but it is still a joint trial when the claims or issues of a larger group are precluded or
otherwise decided by the results.” Id. In his view, the reasons plaintiffs gave in
support of coordination “including the danger of inconsistent judgments and
conflicting determinations of liability . . . could only be addressed through some form
of joint trial.” Id. at 927.
Romo thus brings sharply into focus the issues that we have faced in deciding
this case. We, of course, will not have the benefit of the en banc Ninth Circuit’s
decision in Romo, as the scheduled rehearing will take place only after the expiration
of our statutory deadline in this case.
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CAFA jurisdiction absent); Abbott Labs., 698 F.3d at 570-71 (several hundred
plaintiffs filed ten lawsuits in three different state courts, later requesting that the
state supreme court consolidate and transfer their cases to a single county; plaintiffs
specifically requested consolidation through trial; CAFA jurisdiction present);
Anderson, 610 F.3d at 392-93 (plaintiffs filed actions aggregating over 100 plaintiffs,
apparently without any request for consolidation; CAFA jurisdiction absent); Koral,
628 F.3d at 946 (plaintiffs filed a total of 29 suits involving 117 plaintiffs in state
court; later arguing that the forum was not inconvenient because some of the cases
would be tried as exemplar cases and the issue of liability would be determined for
the remaining cases by the result in the exemplar cases; CAFA jurisdiction absent
and removal was premature); Tanoh, 561 F.3d at 956 (plaintiffs filed actions
containing fewer than 100 plaintiffs but aggregating to more than 100 plaintiffs, but
neither plaintiffs nor the state court had proposed consolidating the actions for trial;
CAFA jurisdiction absent); Freeman v. Blue Ridge Paper Prods., Inc., 551 F.3d 405,
406 (6th Cir. 2008) (plaintiffs divided their suit chronologically into five separate
suits covering six-month time periods, with each suit seeking less than CAFA’s $5
million threshold; remanded for further proceedings concerning CAFA jurisdiction);
Bullard v. Burlington N. Santa Fe Ry. Co., 535 F.3d 759, 761 (7th Cir. 2008)
(plaintiffs filed a single complaint containing more than 100 plaintiffs; CAFA
jurisdiction present).

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Though none of these cases is precisely on point, we gather one essential fact
from all of them. In none of them did the court find a proposal for a joint trial
present solely because the plaintiffs filed multiple cases each containing fewer than
100 claims. Thus, we conclude these cases provide implicit support for our
approach, outlined above.
Finally, we emphasize that our decision rests on the facts currently presented
to us in the record. “Plaintiffs’ separate state court actions may, of course, become
removable at [some] later point if plaintiffs seek to join the claims for trial.” Tanoh,
561 F.3d at 956; see also Scimone, 720 F.3d at 881-82 (stating CAFA’s plain
meaning would support removal if plaintiffs moved for consolidation on the eve of
trial); Anderson, 610 F.3d at 394 (“Of course, subsequent action by the plaintiffs in
state court might render these claims removable.”). But plaintiffs have not yet taken
this step, and thus there is no “mass action” as yet that would support CAFA removal
to federal court.
III. REMAND FOR LACK OF DIVERSITY JURISDICTION
Defendants argue, in the alternative, that removal was proper under the district
court’s diversity jurisdiction. Diversity jurisdiction generally requires complete
diversity of citizenship between the parties. See 28 U.S.C. § 1332(a). Because
plaintiffs joined at least one New Jersey plaintiff in each suit, the district court could
assume diversity jurisdiction only by disregarding the New Jersey plaintiff.

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Defendants argue that this can be accomplished through the doctrine of “fraudulent
misjoinder.”
We acquired jurisdiction over this appeal based on the specific grant of
jurisdiction to review a CAFA remand order provided in 28 U.S.C. § 1453(c). Having
accepted CAFA jurisdiction, we may also reach the defendants’ alternative, diversity
jurisdiction argument. Coffey v. Freeport McMoran Copper & Gold, 581 F.3d 1240
(10th Cir. 2009) (per curiam). But in Coffey, we further held that our “decision to
exercise that jurisdiction is discretionary.” Id. at 1247. Accordingly we declined to
determine whether the district court had properly remanded in spite of the
defendants’ argument that CERCLA provided another basis for federal court
jurisdiction. Id. at 1247-48. Similar considerations prompt us also to decline to
exercise jurisdiction over the diversity jurisdiction issue here.
First, consideration of this issue would require us to determine whether to
recognize the doctrine of “fraudulent misjoinder of plaintiffs . . . to circumvent
diversity jurisdiction,” Aplt. Br. at 18 (citation omitted), a rule that the defendants
admit has not yet been adopted within this circuit, id. at 19. Second, absent our
jurisdiction over the CAFA remand order, there would have been no freestanding
appellate jurisdiction to review the district court’s ruling on diversity jurisdiction, a
factor we found significant in Coffey, 581 F.3d at 1247. Finally, to reach the
diversity issue would likely embroil us in difficult factual issues. We therefore
decline to exercise our discretion to review the diversity jurisdiction issue.
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IV. CONCLUSION
We affirm the district court’s order remanding these cases to state court,
because plaintiffs’ cases do not represent a removable “mass action” as defined in
CAFA. We decline to exercise jurisdiction over the district court’s decision to
remand for lack of diversity jurisdiction.

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No. 13-6287, Teague, et al. v. Johnson & Johnson, et al.
ANDERSON, Circuit Judge, concurring.
In order to avoid federal jurisdiction under CAFA plaintiffs’ counsel
intentionally filed eleven separate but virtually identical complaints, with less
than 100 plaintiffs each, almost simultaneously before a single state court judge
in Pottawatomie County, Oklahoma. The defendants argue that such a
circumstance necessarily implies a proposal for a joint trial of some or all of those
repetitive claims, or common issues of law or fact. No case cited by the
defendants goes that far. The majority opinion holds that filing does not
constitute a proposal, implicit or otherwise. I agree. The defendants are merely
predicting what is likely to happen. But with some force.
At oral argument plaintiffs’ counsel was asked if, assuming a remand, she
was representing to the court that except for pretrial proceedings she or her cocounsel intended to build a Chinese wall around each of these eleven virtually
identical cases and try each one independently from scratch, including questions
of liability, free of any type of controlling or preclusive determinations that
would govern in all of the cases. In other words she intended no joint trial in
whole or in part, bellwether, exemplar, or otherwise, that would settle any issue
of law or fact common to any part or all of the eleven cases. She stated that was
the plan. That is a dubious prospect. In major litigation like this, especially
when counsel is the same in all the cases, there are common issues of law and
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employed for the sake of efficiency, and the avoidance of redundancy and
inconsistencies. Two leading cases illustrate how joint trial proposals were
deemed to have arisen in parallel circumstances: In re Abbott Labs., Inc., 698
F.3d 568 (7th Cir. 2012), and Atwell v. Boston Sci. Corp., 740 F.3d 1160 (8th Cir.
2013).
In Abbott, several hundred plaintiffs filed ten personal injury actions
against Abbott in three state courts and thereafter filed motions to have the cases
consolidated. The Seventh Circuit held that the motion to consolidate constituted
an implicit proposal for a joint trial, observing that the plaintiffs’ consolidation
request included the words “through trial”, but also stressing the plaintiffs’
assertion in their motion that such consolidation “would also facilitate the
efficient disposition of a number of universal and fundamental substantive
questions applicable to all or most of Plaintiffs’ cases without the risk of
inconsistent adjudication.” The court then stated that “[I]t 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.” Abbott, 698 F.3d at
573.
In Atwell, three groups of plaintiffs filed separate product liability actions
against four manufacturers in Missouri’s Twenty-Second Judicial Circuit. Each
group comprised less than 100 plaintiffs. The three groups filed generally similar
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motions proposing that the state court assign each group to a single judge. They
disclaimed any intent to have the cases consolidated. Rather they sought
assignment to a single judge “who could handle these cases for consistency of
rulings, judicial economy, [and] administration of justice.” And because of the
complexity that will occur all the way through, according to counsel for the
Atwell plaintiffs, “[t]here’s going to be a process in which to select the bellwether
case to try.” In ruling that these cases were properly removed to federal court
under CAFA, the Eighth Circuit stated that such statements by counsel “revealed
the purpose of their motions—a joint assignment in which the ‘inevitable result’
will be that their cases are tried jointly.” Atwell, 740 F.3d at 1165.
In Romo v. Teva Pharmaceuticals USA, Inc., 731 F.3d 918 (9th Cir. 2013),
attorneys for plaintiffs in some of the forty similar product liability actions filed
in California state courts sought coordination of their common actions. The only
question was whether the plaintiffs’ petition for coordination constituted a
proposal that the cases be tried jointly for purposes of CAFA. The majority found
that it wasn’t. Dissenting, Judge Gould stated that the “[r]easons Plaintiffs listed
as supportive of their petition, including inconsistent judgments and conflicting
determinations of liability, in my view could only be addressed through some
form of joint trial. When Plaintiffs asked the California Judicial Council to
coordinate their cases for reasons that only a joint trial could address, they
implicitly proposed a joint trial, bringing their cases within CAFA’s mass action
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provision.” Id. at 927. While Romo, at least the majority opinion, is no longer
authoritative because en banc review has been granted, I find Judge Gould’s
reasoning to be persuasive and applicable to the case before us.
The rationale of these cases (and there are others) applies here. The tactic
of filing multiple cases before a single state court judge simply takes a short cut
by eliminating the necessity in the cited cases of filing motions to assign,
consolidate or coordinate cases before a single judge. It does not, however,
eliminate all that will undoubtedly transpire by way of seeking avoidance of
inconsistent rulings, mistakes due to complexity, judicial economy, efficiency,
and so on. Such matters cannot and, in my estimation, will not be addressed in
the state court in these cases without some form of proposal (and that is all it
takes), either implicit or explicit, for some sort of joint trial. Such a joint trial
need not encompass relief. “[S]ection 1332(d)(11)(B)(i) requires only that the
plaintiffs’ claims involve common issues of law or fact. . . .” Koral v. Boeing
Co., 628 F.3d 945, 947 (7th Cir. 2011).
But, the removals in this case, based solely on the act of filing the
complaints, was premature. To the same effect, see id. at 947 (remand affirmed
because the removals were premature). Removal can occur at any time in the
future within 30-days of a triggering event. See, e.g., Atwell, 740 F.3d at 1162;
Tanoh v. Dow Chemical Co., 561 F.3d 945, 956 (9th Cir. 2009) (“Plaintiffs’
separate state court actions may, of course, become removable at some later point
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if plaintiffs seek to join the claims for joint trial.”); Bullard v. Burlington N.
Santa Fe Ry., 535 F.3d 759, 762 (7th Cir. 2008) (Section 1446(b) allows removal
within 30 days of any event that brings a previously non-removable suit within
federal jurisdiction).
In short, I believe the removals here simply to be premature.

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