Case 3:19-md-02913-WHO Document 2053 Filed 07/06/21 Page 1 of 7
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`Facsimile:
`+1 312 862 2200
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`Renee D. Smith
`To Call Writer Directly:
`+1 312 862 2310
`renee.smith@kirkland.com
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`300 North LaSalle
`Chicago, IL 60654
`United States
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`+1 312 862 2000
`www.kirkland.com
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`July 6, 2021
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`The Honorable William H. Orrick, III
`U.S. District Court for the N. District of California
`450 Golden Gate Avenue
`San Francisco, CA 94102
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`Re:
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`In re Juul Labs, Inc., Mktg., Sales Prac. & Prods. Liab. Litig., 19-md-02913
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`Dear Judge Orrick:
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`The bellwether cases will be the first JUUL personal injury trials in this MDL or anywhere
`else. Each case raises a host of variable substantive and temporal issues regarding alleged injuries,
`product use, marketing exposure, party conduct, reliance, and causation (among others). Plaintiffs
`cannot meet their burden to show that consolidation is appropriate under Rule 42.
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`First, grafting multi-plaintiff trials onto the inaugural bellwether process poses the inherent
`risk of unfair prejudice from aggregation, and the reinforcing effects that one plaintiff’s evidence
`will have on others will only be magnified in the setting of youth use and the unique issues in these
`proceedings. Consolidation will erode the integrity of and confidence in verdicts or settlements—
`a situation that can neither be cured nor justified under the guise of efficiency. In this manner,
`separate trials are required to avoid prejudice and preserve Defendants’ rights to a jury trial.
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`Second, consolidating the early bellwether trials will frustrate MDL goals by obscuring
`heterogeneous value- and viability-driving factors that are critical to focusing future trials and
`informing settlement. This is precisely the reason why MDL bellwether “[c]ases should generally
`not be consolidated for trial.” BOLCH JUD. INSTIT., DUKE LAW SCHOOL, GUIDELINES & BEST
`PRACTICES FOR LARGE & MASS-TORT MDLS 25 (2d ed. 2018) (“Duke MDL Guidelines”)
`(emphasis added). Instead, “[a]t the bellwether stage, the goal should be to achieve valid tests, not
`to resolve large number of claims.” Id. The Court should not consolidate these cases for trial.
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`Finally, adding two Florida plaintiffs would exacerbate these problems. Those two cases
`cannot be tried together simply because Florida law “would apply to each case.” ECF No. 1981-
`3 at 8. The artificial masking of individual facts will remain. And enlarging the number of trial
`candidates from four to six to make room for two more Plaintiff picks now will only increase the
`unfair prejudice and amplify the representativeness concerns that already hang over the trial slate.
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`In sum, the Court should separately try four bellwether cases as contemplated by the extant
`trial selection process. Given the importance of this issue, Defendants respectfully request oral
`argument and look forward to discussion at the July 16, 2021 Case Management Conference.
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`Austin Bay Area Beijing Boston Brussels Dallas Hong Kong Houston London Los Angeles Munich New York Paris Shanghai Washington, D.C.
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`Case 3:19-md-02913-WHO Document 2053 Filed 07/06/21 Page 2 of 7
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`Hon. William Orrick
`July 6, 2021
`Page 2
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`I. Consolidated Trials Will Unfairly Prejudice Defendants And Frustrate Bellwether Goals.
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`A.
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`Separate Trials Are Required To Avoid Unfair Prejudice To Defendants.
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`Consolidation is not appropriate here because it will result in “unfair prejudice to a party.”
`See Snyder v. Nationstar Mortg. LLC, 2016 WL 3519181, at *2 (N.D. Cal. June 28, 2016) (J.
`Corley) (citation omitted); see also Fed. R. Civ. P. 42. Multi-plaintiff trials would improperly
`litigate cases on a group basis, even though, as Judge Corley recognized, “everything may be very
`individual with respect to someone’s experience with Juul.” 2/9/2021 Hr’g Tr. at 19:1-19:19.
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`First, each plaintiff alleges individualized: (i) means and content of ad exposure; (ii)
`knowledge of nicotine and its risks; (iii) reasons for and frequency of JUUL use; (iv) use of other
`nicotine products and/or other age-restricted substances. The Court’s four bellwether trial picks,
`B.B., Clark Fish, Roberto Pesce, and Jayme Westfaul (ECF No. 2012), underscore the merits- and
`value-driving differences among the cases. For example, with respect to the content and timing of
`JUUL ad exposure: B.B. alleges she saw ads before JUUL use, but “never paid any attention.”
`B.B. Dep. 117. Pesce claims he saw certain ads, while Fish claims he saw different ads stating
`that JUUL was safe for adult smokers. Pesce Dep. 206; Fish Dep. 154. And Westfaul does not
`remember “specifically seeing a certain ad before using JUUL.” Westfaul Dep. 239. Different ad
`exposures go both to causation and the admissibility of specific ads, content or imagery at trial.1
`Similarly, certain plaintiffs modified their JUUL devices or used non-JUUL pods, thus raising
`product misuse defenses that may apply to some but not all bellwethers. B.B. Rog. Resp. 13; Pesce
`Dep. 112. The modes of acquisition are likewise diverse: B.B. never purchased from anyone but
`friends; Westfaul and Fish acquired their products from friends and retailers; and Pesce got his
`products from friends, retailers, and eventually through online sales. B.B. Dep. 85; Fish Dep. 172,
`252; Pesce Dep. 51, 93; Westfaul Dep. 154, 158. Other individual factors include the following:2
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`Pre-JUUL Nicotine Use
`Pre-JUUL Knew Nicotine Is Addictive
`Used Nicotine Cessation Aids In Quit Attempts
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`B.B.
`No
`No
`Yes
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`Fish Pesce Westfaul
`Yes No
`Yes
`Yes No
`Yes
`No
`No
`Yes
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`Consolidation will confuse jurors who will “sift through large quantities of complicated evidence
`to determine claims that may present different issues.” Duke MDL Guidelines at 25.
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`1 As Plaintiffs noted regarding vaping or tobacco education materials, the evidence “probably should be related to
`something” that “the class representatives actually received.” 6/30/2021 Hr’g Tr. at 30-31 (emphasis added).
`2 B.B. Dep. 100, 106, 187; Fish Dep. 104, 108, 151, 187; Pesce Dep. 72, 78, 112; Westfaul Dep. 121, 142, 201,
`293; see also generally PFS Resp. Q.25.
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`Case 3:19-md-02913-WHO Document 2053 Filed 07/06/21 Page 3 of 7
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`Hon. William Orrick
`July 6, 2021
`Page 3
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`Importantly, courts are overwhelmingly reluctant to consolidate tobacco-product personal
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`injury cases because of similar individualized issues. In Ford v. R.J. Reynolds Tobacco Co., for
`example, a federal court just days ago denied consolidation where, as here, “[e]ach plaintiff will
`be required to prove his or her injury was caused by Defendant’s products,” and the “different
`products, injuries, amount of smoking, time the plaintiffs started smoking and the plaintiffs’ ages,
`all of which are different, demonstrate that the issues of fact are diverse enough to require separate
`discovery and trials.” 2021 WL 2646413, at *2 (E.D. Mo. June 28, 2021) (emphasis added). And
`despite numerous motions to consolidate, each and every one of the 300+ Engle-progeny tobacco
`personal injury cases in Florida courts have likewise been tried separately, as courts consistently
`reject consolidation efforts in smoking and health cases for precisely these reasons.
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`Second, joining two (or more) underage plaintiffs will itself imply a prevalent problem that
`is both divorced from the evidence presented at trial and untethered to an individual plaintiff’s
`claims. Moreover, a more sympathetic or “stronger” plaintiff case may unfairly buoy the claims
`of a weaker one to the unfair detriment of Defendants. See Rubio v. Monsanto Co., 181 F. Supp.
`3d 746, 758 (C.D. Cal. 2016) (“by trying the two [toxic tort] claims together, one plaintiff, despite
`a weaker case of causation, could benefit merely through association with the stronger plaintiff’s
`case.”). Effectively reducing a plaintiff’s burden on injury, reliance, causation and damage issues
`by allowing composite proof is manifestly prejudicial.
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`Third, consolidation will expose the same jury to evidence that may be relevant to only one
`claim. This “spillover evidence may prejudice [defendants].” McCoy v. Biomet Orthopedics, LLC,
`2019 WL 6324558, at *8 (D. Md. Nov. 25, 2019). “The jury may simply resolve the confusion by
`considering all the evidence to pertain to all the plaintiffs’ claims, even when it is relevant to only
`one plaintiff’s case.” Bailey v. N. Trust Co., 196 F.R.D. 513, 518 (N.D. Ill. 2000).” “Consolidation
`will require the jury to weave back and forth between the two actions, each involving a different
`[plaintiff] with different key players, different factual scenarios and supporting evidence, and
`different [legal] violations.” Snyder, 2016 WL 3519181, at *3. And, “significantly, consolidation
`may unfairly prejudice[ ] Defendant[s] as the jury might transfer some liability for one plaintiff
`over to others, whereas, no plaintiff will be prejudiced in any way through separate trials.” Ford,
`2021 WL 2646413, at *3. “Under these circumstances, the risk of jury confusion and prejudice to
`Defendants weighs against consolidation.” See Snyder, 2016 WL 3519181, at *3.3 And, the
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`3 See also Grayson v. K-Mart Corp., 849 F. Supp. 785, 790 (N.D. Ga. 1994) (“[T]here is a tremendous danger that
`one or two plaintiff’s unique circumstances could bias the jury against defendant generally, thus, prejudicing
`defendant with respect to the other plaintiffs’ claims.”); Hasman v. G.D. Searle & Co., 106 F.R.D. 459, 461 (E.D.
`Mich. 1985) (the verdict “could potentially be a product of cumulative confusion and prejudice.”); Ulysse v. Waste
`Mgmt., Inc., 2013 WL 11327137, at *5 (S.D. Fla. Sept. 13, 2013) (“The potential that the jury could find in favor
`of one plaintiff based on the anecdotal evidence presented by other plaintiffs in these cases would not only
`prejudice the defendant, but would also violate American jurisprudence.”).
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`Case 3:19-md-02913-WHO Document 2053 Filed 07/06/21 Page 4 of 7
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`Hon. William Orrick
`July 6, 2021
`Page 4
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`prejudice concerns here implicate due process right as well. See Gwathmey v. United States, 215
`F.2d 148, 156 (5th Cir. 1954); Philip Morris USA v. Williams, 549 U.S. 346, 353 (2007) (punitive
`damages may not “punish a defendant” for injuries to others).4
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`Fourth, purported efficiency or convenience benefits are insufficient to support
`consolidation. Perceived “benefits of efficiency can never be purchased at the cost of fairness.”
`Malcolm, 995 F.2d at 350. “[A] trial must remain fair to both parties, and such considerations of
`convenience may not prevail where the inevitable consequence to another party is harmful and
`serious prejudice.” Arnold v. Eastern Air Lines, Inc., 712 F.2d 899, 906 (4th Cir. 1983).
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`In sum, Defendants are “entitled to defend a case on its merits and should not be required
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`to lump its defense into one,” Ford, 2021 WL 2646413, at *2, and the trials should be separate.
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`B. Multi-Plaintiff Trials Will Obscure Key Metrics And Impede Resolution.
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`It is axiomatic that “[c]onsolidation can tilt the playing field, undermining the goal of
`producing representative verdicts.” Duke MDL Guidelines at 25. Multi-plaintiff bellwethers will
`prejudice Defendants and cast substantial doubt on the reliability of any verdict or settlement,
`which is counter to the use of bellwether trials as “test cases” to gather “reliable information about
`other mass tort cases.” MANUAL FOR COMPLEX LITIGATION (FOURTH) § 22.315 (“MCL”).
`Bellwether trials are designed “to enable the parties and the court to determine the nature and
`strength of the claims, whether they can be fairly developed and litigated on a group basis and
`what range of values the cases may have if resolution is attempted on a group basis.” Id (emphasis
`added).5 Thus the Federal Judicial Center contemplates a “a series of individual trials on all issues”
`that “can inform parties about likely court rulings and the range of jury verdicts that may be
`expected in similar cases.” Melissa J. Whitney, BELLWETHER TRIALS IN MDL PROCEEDINGS: A
`GUIDE FOR TRANSFEREE JUDGES 35 (Fed. Jud. Ctr. & JPML 2019). By distorting heterogeneous
`metrics, consolidation will impede, rather than facilitate, resolution. Accordingly, in this MDL
`setting involving highly individualized issues and evidence, Plaintiffs cannot meet their “burden
`of demonstrating that convenience and judicial economy would result from consolidation.” See
`Snyder, 2016 WL 3519181, at *2 (citation omitted).
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`4 The prejudice of consolidation falls mostly upon defendants. D. Faigman., MODERN SCIENTIFIC EVIDENCE § 3:29
`(2020-2021 ed. 2020) (“[C]hances of a particular defendant being found civilly or criminally liable increase when
`trials are joined.); I. Horowitz & K. Bordens, The Consolidation of Plaintiffs: The Effects of Number of Plaintiffs
`on Jurors’ Liability Decisions, Damage Awards, and Cognitive Processing of Evidence, 85 J. APPLIED
`PSYCHOLOGY 909, 914 (2000) (“as the number of plaintiffs increased, more liability adhered to the defendant.”).
`5 See also In re Tylenol Mktg., Sales Pracs. & Prods. Liab. Litig., 181 F. Supp. 3d 278, 283 n.2 (E.D. Pa. 2016)
`(bellwether “verdicts and settlements” gauge claim strength to “determine if a global resolution” “is possible.”).
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`Case 3:19-md-02913-WHO Document 2053 Filed 07/06/21 Page 5 of 7
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`Hon. William Orrick
`July 6, 2021
`Page 5
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`Moreover, multi-plaintiff cases in mass tort MDLs are particularly disfavored where—as
`here—the litigation is not “mature.” See Duke MDL Guidelines at 25 (“‘until enough trials have
`occurred so that the contours of various types of claims within the . . . litigation are known, courts
`should proceed with extreme caution in consolidating claims.’”);6 MCL § 22:314, at 359 (a series
`of “single-plaintiff, single-defendant trials” may be needed at first to “test the claims of causation
`and damages and whether the evidence applies across groups, in order to provide the necessary
`information as to whether aggregation is appropriate, the form and extent of aggregation, and the
`likely range of values of the various claims.”).7
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`Finally, consolidated MDL bellwether cases are the exception, not the rule, at any stage in
`MDLs. Plaintiffs’ reliance on outlier and controversial trial consolidations in 3M Combat Arms
`Earplugs MDL—which involves hearing loss claims brought by current or former members of the
`military—is misplaced. (ECF No. 1981-3 at 8). The 3M orders are (i) inconsistent with the weight
`of MDL authority; (ii) have not been subject to appeal; (iii) involved adult use in a military setting,
`where the diverse ad content and exposure; reasons for use; and uniquely case-specific evidence
`in these underage consumer cases were not at issue; and (iv) were rendered in an MDL that
`includes hundreds of thousands of claims on the administrative docket.8
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`C.
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`Differences In State Law Pose Additional Obstacles To Consolidation.
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`Differences in governing state laws—Tennessee, Kentucky, Rhode Island/Connecticut,9
`and Mississippi—provide an additional reason to reject consolidation. “Federal courts have
`frequently concluded that dispersed mass tort personal injury claims, particularly those involving
`the law of different states, cannot generally be tried on a consolidated or aggregated basis.” MCL
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`6 Quoting In re Levaquin Prods. Liab. Litig., 209 U.S. Dist. LEXIS 116344, at *9-11 (D. Minn. Dec. 14, 2009).
`See also Duke MDL Guidelines at 25 n. 95 (citing MDL cases denying motions to consolidate).
`7 Cf. In re E.I. Du Pont De Nemours & Co. C-8 Pers. Injury Litig., 2019 WL 2088768 (S.D. Ohio May 13, 2019)
`(Consolidating trials in “mass tort” trials only after case “has reached maturity and is headed into its dotage.”).
`In re 3M Admin. Dkt., No. 3:19-mc-87, ECF No. 3 (N.D. Fla. Jan. 7, 2020). And consolidated 3M trial verdict
`included virtually identical damages awards to each plaintiff, despite distinct histories and alleged injuries. Case
`No. 7:20-cv-00104, ECF No. 186; Case No. 7:20-cv-00131, ECF No. 202; Case No. 7:20-cv-00137, ECF No.
`184. This result is concerning as well. See Malcolm v. Nat’l Gypsum Co., 995 F.2d 346, 352 (2d Cir. 1993)
`(identical verdicts may have resulted from “jury throwing up its hands in the face of a torrent of evidence.”).
`Pacific Fertility Center trial does not advance Plaintiffs’ cause either. ECF. No. 1981-3 at 8. That non-MDL
`case involved a single tragic incident that resulted in the loss of reproductive eggs or embryos. In re Pacific
`Fertility Ctr. Litig., 2020 WL 3432689 (N.D. Cal. June 23, 2020). And publicly-available filings indicate that
`(unlike here) the parties stipulated to consolidation. See, e.g., In re Pacific Fertility Ctr. Litig., No. 3:18-cv-1586,
`ECF Nos. 16, 552 (N.D. Cal. Sept. 14, 2020).
`9 Pesce first used JUUL products in Connecticut, then later in Rhode Island (where he moved for college).
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`8
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`Case 3:19-md-02913-WHO Document 2053 Filed 07/06/21 Page 6 of 7
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`Hon. William Orrick
`July 6, 2021
`Page 6
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`§ 22.93. See also In re Consol. Parlodel Litig., 182 F.R.D. 441, 447 (D.N.J. 1998) (consolidation
`would require the jury “to apply their factual findings to a host of complex legal principles within
`each issue and each case.”). The state-law differences are material. For example, in Kentucky,
`evidence of defendants’ net worth is inadmissible for purposes of punitive damages. But in
`Tennessee, Rhode Island, and Mississippi, the evidence is allowed; and in Connecticut, it may be
`admitted for certain punitive damages claims, but not others. 10 And including seven different
`defendants in each trial would require byzantine jury instructions and verdict forms to address
`which claims could be brought by which plaintiffs against which defendants in which case.11
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`In sum, the Court should not consolidate any of the four initial bellwether picks for trial.
`At this stage, individual, single-plaintiff trials are best positioned to facilitate resolution, while
`preserving the integrity of the process and avoiding unfair prejudice to Defendants.12
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`II. Tacking Two Florida Plaintiffs On To The Initial Four Bellwether Trial Selections Will
`Not Solve The Consolidation Problem And Would Be Fundamentally Unfair.
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`Since September 9, 2020, the Court and the parties have assessed, prepared, and nominated
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`cases from which the Court would “select a total of four cases to be set for bellwether trials.” ECF
`No. 938 at 2. On June 21, 2021, the Court picked those four cases (B.B., Fish, Pesce, and
`Westfaul). ECF No. 2012. Defendants appreciate the Court’s view that the two Florida plaintiffs
`(Lucas Willis and Cameron Widergren) also “would be appropriate for the first round of trials.”
`Id. at 2. But the Court should not revamp the bellwether trial selection process now under an
`expectation that adding these cases to the mix will justify consolidated trials. Nor should the Court
`accelerate the selection of next wave picks by bringing these plaintiff-selected Florida cases to the
`front of the line.
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`10 Hardaway Mgmt. Co. v. Southerland, 977 S.W.2d 910, 916 (Ky. 1998); Anderson v. Latham Trucking Co., 728
`S.W.2d 752, 754 (Tenn. 1987); Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 182 F.R.D. 386, 401 (D.R.I.
`1998); MISS. CODE ANN. § 11-1-65(1)(e); Izzarelli v. R.J. Reynolds Tobacco Co., 767 F. Supp. 2d 324, 329 (D.
`Conn. 2010); Lenz v. CNA Assur. Co., 42 Conn. Supp. 514, 515, 630 A.2d 1082, 1083 (Conn. Super. Ct. 1993).
`11 The complexities are sampled in the Court’s recent ruling on motions to dismiss bellwether claims, where it
`tentatively: (i) dismissed strict liability claims against the Founders under all states laws, “except perhaps” certain
`states, including Mississippi, Tennessee, and Connecticut; and (ii) dismissed strict liability claims against Altria
`as preempted under Connecticut law, but allowed them under Mississippi and Tennessee law. ECF No. 1997.
`12 Unlike in the class certification context, “[a] common question or questions do not have to predominate,” for Rule
`42 consolidation. Indiana State Dist. Council of Laborers and Hod Carriers Pension Fund v. Gecht, 2007 WL
`902554 (N.D. Cal. Mar. 22, 2007). But the overwhelmingly individualized issues in the personal injury cases
`must be considered here in balancing the benefits and risks of consolidation. See McCoy, 2019 WL 6324558, at
`*7 (denying consolidation because “despite some factual similarities, individual issues predominate” where
`plaintiffs were “implanted with different [ ] devices in different states”). Ultimately, however, the predominance
`question can and should be addressed in connection with class certification motions.
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`Case 3:19-md-02913-WHO Document 2053 Filed 07/06/21 Page 7 of 7
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`Hon. William Orrick
`July 6, 2021
`Page 7
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`First, these cases should not be consolidated. With the exception of state law issues, the
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`primary problems with and risk of unfair prejudice from consolidated trials as described above
`apply with equal force to their claims. Among other things, these plaintiffs differ in their claimed
`(i) knowledge of nicotine and its presence in JUUL products; (ii) ad exposure and content; and (iii)
`means of acquisition. Widergren Dep. 58, 95, 98, 158-59, 240; Willis Dep. 123, 251-53.
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`Second, the Court should not change the rules of engagement now. The Court already gave
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`Plaintiffs a second chance to amend their complaints to change their designated forum (see ECF
`No. 1125), which in turn resulted in a skewed plaintiff-driven 147-plaintiff bellwether eligible
`pool. ECF No. 1191 at 3-4. Adding two additional plaintiff picks to the early bellwether trial
`candidates will result in a trial roster consisting of all five remaining plaintiffs’ initial picks; one
`random initial pick; and zero defense initial picks. This one-sided menu will undermine
`confidence in the process and the reliability of bellwether verdicts in gauging settlement value.
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`Third, Defendants agree with Plaintiffs’ suggestion that it may be helpful to start to “talk
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`about a second round” of bellwether candidates. 6/21/2021 Hr’g Tr. at 62. But the status of the
`Florida plaintiffs in subsequent bellwether trial waves should be addressed as part of a
`comprehensive second round selection process. Among other things, plaintiff-pick cases must be
`accompanied by additional defense-selected cases drawn from a now-expanded bellwether-
`eligible case pool, which includes at least 50 more plaintiffs who designated N.D. California for
`trial. And special care must be taken to include candidates from core categories—like adult
`initiators and former smokers—who were wholly excluded from any representative presence at all
`in the first round trials. See id. at 57; ECF No. 1981-3 at 1; ECF No. 1981-4 at 1-2.
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`*
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`For these reasons, Defendants respectfully request that the Court: (i) hold individual trials
`for each of the four initial bellwether picks (B.B., Fish, Pesce, and Westfaul); (ii) decline any
`invitation to consolidate cases for trials in this first round; and (iii) consider joint or competing
`proposals regarding the process and criteria for the next wave of personal injury bellwether cases.
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`Respectfully submitted,
`/s/ Renee D. Smith
`/s/ Peter A. Farrell
`Counsel for Defendant Juul Labs, Inc.
`Liaison Counsel for Defendants
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`cc: MDL Counsel of Record
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