Frankum v. Boston Scientific Corporation

Filing 130

ORDER denying (125) in case 1:15-cv-91-MOC and (106) in case 1:15-cv-92-MOC Motions to conduct individual trials; these cases are consolidated for trial, with Bertie Frankum v. Boston Scientific Corp., 1:15-cv-91-MOC, designa ted as the Lead Case for docketing purposes; and these consolidated cases to be set for trial for the Asheville civil term commencing January 11, 2016. Parties advised that the obligations of counsel prior to and during trial can be found in this court's standing order regarding pretrial orders and case management. Signed by District Judge Max O. Cogburn, Jr. on 06/19/15. (emw) Modified text on 6/22/2015 (emw).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
DOCKET NO. 1:15-cv-00091-MOC; 1:15-cv-00092-MOC
BERTIE FRANKUM,
Plaintiff,
Vs.
BOSTON SCIENTIFIC CORPORATION,
Defendant.
___________________________________________

TERI MATHISON and NORMAN MATHISON,
Plaintiffs,
Vs.
BOSTON SCIENTIFIC CORPORATION,
Defendant.

)
)
)
)
)
)
)
)
)

ORDER

)
)
)
)
)
)
)
)
)

THIS MATTER is before the court on Defendant’s Motion to Conduct Individual Trials
in Frankum v. Boston Scientific, 1:15-cv-00091-MOC (#125), and Mathison v. Boston
Scientific, 1:15-cv-00092-MOC (#106). These cases were transferred to this district from the
Southern District of West Virginia and are directly related to MDL 2326, In re Boston Scientific
Corp. Pelvic Repair System Products Liability Litigation. Both cases are ready for trial.
Defendant filed these motions the day before the court held a status conference on these cases. In
its Order scheduling the status conference, the court indicated that it would likely consolidate
these cases for trial pursuant to Fed. R. Civ. P. 42(a), which permits district courts to join cases

-1-

for hearing or trial where “actions before the court involve a common question of law or fact.”
Fed. R. Civ. P. 42(a). As discussed at the hearing, Defendant asks the court to conduct individual
trials in these cases, while Plaintiffs ask the court to consolidate them. Plaintiffs having been
given an opportunity to respond in writing to Defendant’s motions, Frankum v. Boston Scientific
(#129) and Mathison v. Boston Scientific (#110), the motions are ripe for review. For the reasons
explained herein, the court will deny Defendant’s motions and consolidate these matters for trial.
I.

LEGAL STANDARDS FOR CONSOLIDATION
Fed. R. Civ. P. 42(a) permits consolidation “[i]f actions before the court involve a common

question of law of fact.” The rule provides courts with discretion over whether to consolidate actions
for trial. See Arnold v. Eastern Air Lines, Inc., 681 F.3d 186, 192 (4th Cir. 1982). Courts considering
consolidation should evaluate:
(1) whether the specific risks of prejudice and possible confusion [are] overborne by the risk
of inconsistent adjudications of common factual and legal issues,
(2) burden on the parties,
(3) witnesses and available judicial resources posed by multiple lawsuits,
(4) the length of time required to conclude multiple suits as against a single one, and
(5) the relative expense to all concerned of the single-trial, multiple-trial alternatives.
Id. at 193. Generally, under Rule 42(a), when two causes of action involve common witnesses,

identical evidence, and similar issues, judicial economy will generally favor consolidation. See
Johnson v. Celotex Corp., 899 F.2d 1281, 1284-85 (2d Cir. 1990). Consolidation of actions
involving common questions of law and fact also avoids the risk of inconsistent judgments.
Switzenbaum v. Orbital Scis. Corp., 187 F.R.D. 246, 248 (E.D. Va. 1999). Nevertheless, “even
where cases involve some common issues of law or fact, consolidation may be inappropriate
where individual issues predominate.” Michael v. Wyeth, LLC, No. 2:04-cv-0435, 2011 WL
1527581, at *2 (S.D. W. Va. Apr. 20, 2011) (Copenhaver, J.) (internal quotations omitted).

-2-

II.

DISCUSSION
A. Common Issues of Law and Fact Predominate
This case arises from both Plaintiffs’ use of transvaginal mesh to treat stress urinary

incontinence (“SUI”). Mathison Doc. #110 Ex. H, Frankum Doc. #129 Ex. I, Ex. J. In both
actions, Plaintiffs allege that they were implanted with the Obtryx Transobturator Mid-Urethral
Sling System (“Obtryx”), a product manufactured by Defendant. Id. Although different
physicians implanted the Obtryx in the two Plaintiffs, both surgeries were performed in North
Carolina. Frankum Doc. #1 at 4; Mathison Doc. #1 at 4. After resolution of summary judgment
motions in the MDL court, both Plaintiffs are pursuing claims for negligent design, breach of
implied warranty of merchantability, and punitive damages. Mathison Doc. #95 at 12; Frankum
Doc. #103 at 13. Ms. Mathison also includes a claim for loss of consortium. Mathison Doc. #95
at 12. These cases both arise under North Carolina law. Both Plaintiffs allege vaginal and pelvic
injuries, though the exact type and scope of the injuries do vary somewhat between the
Plaintiffs,1 and Ms. Mathison complains of injuries extending beyond the pelvic region.
The main factual difference between these two cases is that Ms. Mathison has had her
Obtryx surgically removed, but Ms. Frankum has not. Additionally, Defendant notes that Ms.
Mathison has also had multiple pelvic and vaginal repair surgeries which Ms. Frankum has not
undergone and that they have different medical profiles and histories (including, inter alia,

1 Ms. Mathison complains of mesh erosion into the vaginal wall causing inflammation, foreign body response,
chronic bladder infections with blood in urine, yeast infections, constant chronic pain, urinary and bowel problems,
vaginal discharge, inability to stand for periods of time, difficulty standing and sitting, balance impairment, burning,
numbness and tingling in the legs but predominantly in the left leg, pudenda never damage, dyspareunia, vaginal
scarring, auto immune disease, anxiety and depression. Mathison Doc. #110, Ex. H. Ms. Frankum complains of
boils in the vaginal area, pain in the pelvic area, difficulty urinating, painful intercourse and difficulty during sex,
bleeding, urinary infections, discharge, and odor. Frankum Doc. #129 Ex. I, Ex. J.

-3-

differences in age, smoking, heart attacks, seizures, and aneurysms). Though Defendant argues
these factual differences preclude the court from consolidating the two cases, the court finds that
the factual similarities in these cases far outweigh their differences. Additionally, many of the
factual differences cited by Defendant are irrelevant to the common issues these cases share,
including whether the Obtryx was negligently designed, whether Boston Scientific breached the
implied warranty, whether punitive damages are warranted, and whether the product is capable
of causing particular injuries. The court believes that proper jury instructions can avoid any
confusion that may arise due to these differences. See In re: Boston Scientific Corp. Pelvic
Repair Sys. Prods. Liab. Litig., MDL 2326, Pre-Trial Order #78 (Feb. 19, 2014), at p. 4.
Defendant also argues that Plaintiffs’ negligent design claims do not justify
consolidation, arguing that Plaintiffs’ differing preexisting conditions and the different timing of
Plaintiffs’ respective surgeries (almost two years apart) renders consolidation inappropriate. The
court disagrees. Ms. Mathison and Ms. Frankum’s claims arise under nearly identical
circumstances. They both had the Obtryx implanted to treat stress urinary incontinence, and the
design of the Obtryx did not change during the intervening two-year gap. Mathison Doc. #110
Ex. D, Frankum Doc. #129, Ex. E. As noted by the MDL court when facing this same issue upon
consolidation, “[w]hile there will be separate evidence relating to . . . individual damages, the
similarities in these cases, particularly as to the claim of design defect, far outweigh any differences.
In addition, carefully crafted jury instructions and special interrogatories can avoid the confusion that
may arise due to these differences.” In re: Boston Scientific, Pre-Trial Order No. 78, at p. 4
(consolidating eleven cases involving the Obtryx where different plaintiffs were implanted with the
Obtryx over four years and noting that such time period would result in only minimal variances in
state of the art evidence in relation to defective design). The court therefore finds consolidation on

-4-

the negligent design claim appropriate.

Finally, Defendant argues that consolidating these cases would violate the Defendant’s
right to due process, since it could potentially result in Defendant being punished for conduct
relevant to one case but not the other. The court is unpersuaded that such threat exists to
Defendant here and notes that Defendant has not pointed to any controlling authority standing for
the premise that a consolidated trial involving punitive damages violates due process. The court
again finds that consolidation on this issue is appropriate and that proper jury selection and
limiting instructions in this consolidated action will protect Defendant’s due process rights.
B. The Arnold Factors Favor Consolidation
The court has also considered the following factors from Arnold v. Eastern Airlines, Inc.
in determining whether to consolidate these actions for trial:
(1) whether the specific risks of prejudice and possible confusion [are] overborne
by the risk of inconsistent adjudications of common factual and legal issues,
(2) burden on the parties,
(3) witnesses and available judicial resources posed by multiple lawsuits,
(4) the length of time required to conclude multiple suits as against a single one,
and
(5) the relative expense to all concerned of the single-trial, multiple-trial
alternatives.
Arnold, 681 F.2d at 193. This court finds that consolidation is favored.
The court has carefully considered the risk of prejudice to Defendant in this action in
light of the fact that a jury will be presented with two plaintiffs complaining of injuries allegedly
caused by the same product. The court has also considered the risk of jury confusion that could
arise as a result of the testimony regarding the factual differences between Plaintiffs. However,
the court finds that any potential jury confusion and prejudice can be avoided if the evidence is
presented in an organized manner and with proper jury instructions. The court is confident it can
-5-

avoid confusion and prejudice, especially since the court is consolidating only two actions for
trial. The court also finds that the other four Arnold factors weigh in favor of consolidation.
Proceeding in one trial will greatly reduce the burden on the parties and the witnesses that are
scheduled to testify in both trials, both in terms of time and expense. Plaintiffs also point out that
differences in evidence to be presented at trial are limited to individual medical records covering
their individual care and treatment, and that jury instructions can account for such differences.
Judicial economy also counsels strongly in favor of consolidating these cases—Plaintiffs
represented at the hearing that they anticipate individual trials to take seven to eight days each,
and a consolidated trial to take roughly ten days. Finally, a single trial will save the financial
resources and time of both parties, which are valuable considerations when deciding whether
consolidation is appropriate. See In re Mentor Corp. Obtape Transobturator Sling Prods. Liab.
Litig., MDL 2004, 2010 WL 797273, at *3 (M.D. Ga. Mar. 3, 2010).
C. CONCLUSION
For the reasons explained herein, the court will deny Defendant’s motions to conduct
individual trials. These actions will be consolidated for trial, as the court believes that
consolidation is appropriate given the common factual and legal issues and the judicial
efficiencies achieved. See In re Dow Corning Corp., 211 B.R. 545, 581-89 (Bankr. E.D. Mich.
1997) (consolidating cases of 588 breast implant plaintiffs); Suhn v. Breg, Inc., 2011 WL
1527263 (D.S.D. 2011) (consolidating multiple plaintiffs’ cases alleging chondrolysis caused by
a shoulder pain pump); Todd-Stenberg v. Dalkon Shield Claimants Trust, 48 Cal.App.4th 976
(1996) (consolidating for trial cases filed by three women with injuries resulting from
implantation of intrauterine device).

-6-

ORDER
IT IS, THEREFORE, ORDERED that Defendant’s motions to conduct individual
trials, Frankum v. Boston Scientific, 1:15-cv-91-MOC (#125), and Mathison v. Boston
Scientific, 1:15-cv-92-MOC (#106) are DENIED.
IT IS FURTHER ORDERED that the above captioned cases be consolidated for trial,
with Bertie Frankum v. Boston Scientific Corp., 1:15-cv-91-MOC, designated as the “Lead
Case” for docketing purposes.
IT IS FURTHER ORDERED that these consolidated cases be set for trial for the
Asheville civil term commencing January 11, 2016. The parties are advised that the
obligations of counsel prior to and during trial can be found in this court’s standing order
regarding pretrial orders and case management.

Signed: June 19, 2015

-7-