Case 3:19-md-02913-WHO Document 2054 Filed 07/06/21 Page 1 of 7
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`July 6, 2021
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`VIA ELECTRONIC FILING CM/ECF
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`The Honorable William H. Orrick
`United States District Court, N.D. California
`450 Golden Gate Avenue
`San Francisco, CA 94102
`
`Re:
`
`In re: Juul Labs Inc., Marketing, Sales Practices, and Products
`Liability Litigation, 19-md-02913-WHO
`
`Dear Judge Orrick:
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`Pursuant to Court’s instructions during the Case Management Conference on June 22,
`2021, the PSC respectfully submits the following for the Court’s consideration regarding multi-
`plaintiff personal injury bellwether trials.
`
`
`INTRODUCTION
`
`
`
`Plaintiffs assert that all six bellwether cases under consideration—Bain, Westfaul, Fish,
`Pesce, Widergren, Willis—satisfy the Rule 42(a) standard and should be tried together.
`Alternatively, if the Court prefers smaller multi-plaintiff trials, Plaintiffs propose two alternatives:
`(1) dividing the bellwether plaintiffs based on those pursuing common law claims (Fish, Pesce,
`Widergren, Willis) and those pursuing consolidated statutory claims (Bain and Westfaul); or (2)
`conduct a single jurisdiction, multi-plaintiff trial with Plaintiffs Widergen and Willis, who are both
`Florida residents, followed by separate consolidated trials for Bain and Westfaul and then Fish and
`Pesce or whichever order the Court prefers..
`
`
`ARGUMENT
`
`Federal Rule of Civil Procedure 42(a) empowers courts to consolidate for trial all actions
`before it that “involve a common question of law or fact.” “District courts enjoy substantial
`discretion in deciding whether and to what extent to consolidate cases.” Hall v. Hall, 138 S. Ct.
`1118, 1131 (2018). In deciding whether to consolidate, a court “weighs the saving of time and
`effort consolidation would produce against any inconvenience, delay, or expense that it would
`cause.” Huene v. United States, 743 F.2d 703, 704 (9th Cir. 1984).
`
`Consolidation is intended to mitigate the burden, expense and delay of repetitive trials
`presenting largely the same evidence and resolving largely the same issues. See, e.g., In re 3M
`Combat Arms Earplug Prod. Liab. Litig., 2021 WL 773018, at *1 (N.D. Fla. Jan. 5, 2021). For
`this reason, consolidation is generally favored. Perez–Funez v. Dist. Dir., I.N.S., 611 F.Supp. 990,
`994 (C.D.Cal.1984) (“While a district court does have broad discretion in determining whether
`consolidation is appropriate, typically, consolidation is favored.”).
`
`Courts overseeing multi-district tort litigations routinely consolidate trials under Rule
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`1
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`Case 3:19-md-02913-WHO Document 2054 Filed 07/06/21 Page 2 of 7
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`42(a).1 Indeed, in cases where multiple plaintiffs allege an identical form of injury arising from
`the same conduct, consolidation is standard practice. See 19A Charles Alan Wright & Arthur R.
`Miller, FEDERAL PRACTICE AND PROCEDURE § 2384 (3d ed. 2020) (“Actions by different
`plaintiffs arising out of the same tort, such as a single accident or disaster or the use of a common
`product that is alleged to be defective in some respect, frequently are ordered consolidated under
`Rule 42(a).”); see also, e.g., In re Genetically Modified Rice Litig., 2010 WL 2926207, at *1 (E.D.
`Mo. July 20, 2010) (“Courts have routinely consolidated multiple plaintiffs for joint trial because
`the benefits of consolidation outweigh any prejudice that a defendant may incur.”); Fisher v. Ciba
`Specialty Chemicals Corp., 245 F.R.D. 539, 544 (S.D. Ala. 2007) (“In short, the Court finds that
`defendants have failed to make a showing of prejudice sufficient to justify the heavy burden that
`would be visited on the litigants and this Court alike by virtue of the proposed fragmentation of
`the plaintiffs' claims into five overlapping trials.”).
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`I.
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` Each of the plaintiffs in the bellwether pool has a near identical complaint, alleging the
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`same form of injury resulting from the same conduct, perpetrated by the same defendants.
`Common questions of fact and law pervade these proceedings and a consolidated trial will save
`the court, parties and the witnesses from the tremendous burden of presenting the same evidence
`in multiple trials. In what is a testament to the efficacy of the bellwether selection process,
`Plaintiffs submit that all six bellwether cases under consideration—Bain, Westfaul, Fish, Pesce,
`Widergren, Willis—satisfy the Rule 42(a) standard and should be tried together.
`
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`The Court Should Consolidate the Bellwether Actions for Trial.
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`A.
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`The Bellwether Actions Involve Common Questions of Fact.
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`
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`A core basis for instituting this proceeding was the Judicial Panel on Multidistrict
`Litigation’s determination that these “actions share multiple factual issues concerning the
`development, manufacture, labeling, and marketing of JUUL products, and the alleged risks posed
`by use of those products.” Dkt. No 144 at 2. Naturally, the bellwether plaintiffs share all the
`foundational factual questions that justified centralizing these cases for efficient pre-trial
`proceedings. At trial, this same constellation of conduct—the design, danger, marketing, and sale
`of the JUUL—will be at issue.
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`As with a product liability litigation, proving general liability for the JUUL product will
`significantly outweigh the individual variations as to causation and damages. Across all trials,
`general liability will turn on the same core questions of fact concerning, for example:
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`1 See, e.g., In re 3M Combat Arms Earplug Prod. Liab. Litig., 2021 WL 773018, at *1 (consolidating five
`cases for trial); In re Stand ‘N Seal Prods. Liab. Litig., 2009 WL 2224185, at *2 (N.D. Ga. July 21, 2009)
`(consolidating seven cases); In re DePuy Orthopaedics, Inc. Pinnacle Hip Implant Prods. Liab. Litig.,
`2016 WL 10719395, at *2 (N.D. Tex. Jan. 8, 2016) (consolidating five cases for trial); In re Mentor Corp
`Obtape Transobturator Sling Prods. Liab. Litig., 2010 WL 797273, at *4 (M.D. Ga. Mar. 3, 2010)
`(consolidating four cases for trial); In re Syngenta AG MIR 162 Corn Litig., 2017 WL 2876767, at *2 (D.
`Kan. July 6, 2017) (consolidating actions from different states); In re N.Y. City Asbestos Litig., 99 A.D.3d
`410, 411 (N.Y. App. Div. 1st Dep’t 2012) ( affirming consolidation of claims by plaintiffs from three
`states); Campbell v. Bos. Sci. Corp., 882 F.3d 70, 74-76 (4th Cir. 2018) (affirming consolidated trial of
`four mesh cases because they shared “many common questions of law and fact”).
`2
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`Case 3:19-md-02913-WHO Document 2054 Filed 07/06/21 Page 3 of 7
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` The nature and effect of JLI’s marketing;
` The design and function of the JUUL product;
` Nicotine’s addictive properties;
` The lack of and/or inadequacy of JUUL’s warnings;
` The knowledge of the individual defendants.
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`
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`Plaintiffs will rely on the same witnesses and documentary evidence to prove their case as
`to each of these questions. But even beyond the common factual questions underlying general
`liability, the bellwether plaintiffs share consistent profiles:
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`Plaintiff’s Name
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`Firm
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`State
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`B. Bain
`Beasley Allen
`Clark Fish
`Beasley Allen
`Roberto Pesce
`Morgan & Morgan
`Jayme Westfaul
`Beasley Allen
`Cameron Widergren Morgan & Morgan
`Lucas Willis
`Morgan & Morgan
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`TN
`KY
`RI
`MS
`FL
`FL
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`JUUL
`Initiation
`Fall 2017
`09/2017
`04/2016
`01/2018
`09/2016
`10/2017
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`Age at
`Initiation
`12
`17
`17
`17
`16
`14
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`Current
`Age
`15
`21
`22
`20
`20
`19
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`Primary
`Injury
`Addiction
`Addiction
`Addiction
`Addiction
`Addiction
`Addiction
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`Thus, each bellwether plaintiff started JUUL as a minor before JUUL packaging contained nicotine
`addiction warnings and allege addiction to nicotine as their primary injury. Additionally, each
`bellwether plaintiff:
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` Was exposed to JLI’s advertisements before and during their JUUL use;
` Was attracted to and primarily used JUUL’s kid-friendly flavors (mint, mango, fruit
`medley, cucumber, crème brûlée);
` Used 1-2 JUUL pods per day at the height of usage;
` Remains addicted to nicotine and are currently using JUUL e-cigarettes and/or
`other e-cigarettes to satisfy their addiction.
`
`Given these commonalities, each bellwether plaintiff will present common (and, if not
`consolidated, duplicative) expert testimony regarding, for example, e-cigarette design, flavorings,
`nicotine formulation, tobacco and regulatory history, marketing (specific to tobacco and in
`general), addiction (youth oriented and in general), warning adequacy or the lack thereof.
`Although causation and damages will involve some case-specific testimony, the vast majority of
`the evidence will go toward common issues and the limited evidence on individual issues will be
`straightforward. Courts have held that consolidation is appropriate on this basis alone.2
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`
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`2 See e.g. Ghogomu v. Delta Airlines Glob. Servs. LLC, 2014 WL 2481879, at *2 (N.D. Okla. June 3,
`2014) (consolidating despite “the application of different laws and provisions” because “[e]ven if that
`were true, Rule 42(a) requires only that there be common questions of fact or law, and the common issues
`of fact raised by the two cases are unavoidably similar.”); see also 9A Charles Alan Wright & Arthur R.
`Miller, FEDERAL PRACTICE AND PROCEDURE § 2382 (3d ed. 2020) (“existence of a common
`question by itself is enough to permit consolidation under Rule 42(a)”).
`3
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`Case 3:19-md-02913-WHO Document 2054 Filed 07/06/21 Page 4 of 7
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`Moreover, the existence of factual distinctions between the bellwether plaintiffs (e.g. ages
`at JUUL initiation, history of drug use, treatment for addiction, type of JUUL advertising exposure)
`also supports multi-plaintiff trials as it will yield more information. J. Eldon E. Fallon, Bellwether
`Trials in Multidistrict Litigation, 82 Tulane Law Review 2323, 2332 (2008) (“The ultimate
`purpose of holding bellwether trials in those settings was not to resolve the thousands of related
`cases pending in either MDL in one ‘representative’ proceeding, but instead to provide meaningful
`information and experience to everyone involved in the litigations.”); see, e.g., Edward F.
`Sherman, Segmenting Aggregate Litigation: Initiatives and Impediments for Reshaping the Trial
`Process, 25 REV. LITIG. 691, 697 (2006) (“[E]ven without preclusive effect, [bellwether trials]
`offer an accurate picture of how different juries would view different cases across the spectrum of
`weak and strong cases that are aggregated.”).
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`Trying multiple plaintiffs with factual distinctions will provide the Parties with data points
`for evaluating those same distinctions in plaintiff profiles on a go forward basis and be informative
`for any potential settlement program, one of the goals of bellwether trials.3
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`B.
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`The Bellwether Actions Involve Common Questions of Law.
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`The six bellwether plaintiffs under consideration are bringing claims under the laws of five
`states—Tennessee, Mississippi, Rhode Island, Kentucky, and Florida. While there is some
`variation, the core legal questions underlying the plaintiffs’ claims are the same across each
`jurisdiction. Under the laws of Rhode Island, Kentucky and Florida, the bellwether plaintiffs assert
`the strict liability claims4, negligence-based claims5 and fraud claims. The legal questions
`underlying these strict liability claims are the same, as each of these jurisdictions has adopted
`Section 402A of the Restatement (Second) of Torts. See Porter v. Rosenberg, 650 So. 2d 79, 81
`(Fla. Dist. Ct. App. 1995); Williams v. Fulmer, 695 S.W. 2d 411, 413 (Ky. 1985); Castrignano v.
`E.R. Squibb & Sons, Inc., 546 A.2d 775 (R.I. 1988). These jurisdictions also share the same
`substantive elements of fraud.6 Butler v. Yusem, 44 So.3d 102, 105 (Fla. 2010); Women’s Dev.
`Corp. v. City of Central Falls, 764 A.2d 151, 158 (R.I. 2001); Denzik v. Denzik, 197 S.W.3d 108,
`110 (Ky. 2006). As to the negligence-based claims, these claims all turn on the same question of
`whether there was duty to the plaintiff, which all three jurisdictions determine by weighing policy
`factors, with varying degrees of emphasis on the foreseeability of harm. See Alderman v. Bradley,
`957 S.W.2d 264, 267 (Ky. App., 1997) (duty “is essentially a policy determination”); Volpe v.
`Gallagher, 821 A.2d 699, 705 (R.I. 2003) (duty is determined weighing “all relevant factors”);
`Smith v. Fla. Power and Light Co., 857 So.2d 224, 229 (Fla. App. 2003) (duty attaches where
`conduct “creates a foreseeable zone of risk”).
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`3 Defendants’ real underlying objection to the bellwether pool is dissatisfaction that there are no adults
`nor smokers in the mix. If the court efficiently consolidates this pool of cases, it frees up resources to
`address defendant’s concern, by perhaps ordering the parties to work on a schedule to have a second
`bellwether pool selected that is comprised of plaintiffs who commenced as adults and or were prior
`smokers, to gain insight into a jury’s reception to those cases which represent a minority of the cases in
`the MDL.
`4 Design defect, manufacturing defect, and failure to warn.
`5 Negligent design, negligent failure to warn, negligent manufacturing, negligence.
`6 (1) a knowing material misrepresentation or omission; (2) duty to disclose; (3) intent to induce reliance;
`(4) reliance; and (5) damages.
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`Case 3:19-md-02913-WHO Document 2054 Filed 07/06/21 Page 5 of 7
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`In Tennessee and Mississippi, plaintiffs will proceed on a consolidated cause of action
`under the product liability statute in each state.7 The elements of these statutory causes of action
`are identical.8 Further, both statutory causes of action embrace the elements underlying common
`law negligence and strict liability theories. See Knoth v. Apollo Endosurgery US, Inc., 425
`F.Supp.3d 678 (S.D. Miss. 2019) (explaining that negligence and strict liability theories are
`evaluated under the MPLA framework); Smith v. ZOLL Med. Corp., 2020 WL 7233366, at *5
`(W.D. Tenn. Dec. 8, 2020) (same for TPLA). Thus, the legal questions underlying the claims in
`Mississippi and Tennessee—such as the defectiveness of the JUUL product or whether the JUUL
`product proximately caused plaintiff’s injury—will entirely overlap with one another and largely
`overlap with the questions underlying the negligence and strict liability claims in Rhode Island,
`Kentucky, and Florida.
`
`Courts have determined that varying state law claims—with similar elements—present
`common questions of law under Rule 42(a). Cadena v. Am. Honda Motor Co., No. CV 20-511-
`MWF (PJWX), 2020 WL 3107798, at *2 (C.D. Cal. June 9, 2020) (consolidating five actions,
`noting that the consumer claims brought under differing states presented “common questions of
`law”). And courts have consistently held that state law variations between claims should not
`preclude consolidated trials where there is otherwise overlapping evidence and common questions.
`See e.g., In re Syngenta AG MIR 162 Corn Litig., 2017 WL 2876767, at *2 (“[T]he Court is
`confident that differences in the state law may be addressed by appropriate instructions to the
`jury.”).
`
`Here, to the extent that consolidation risks jury confusion or prejudice, courts have held
`that appropriate trial management, verdict forms, and jury instructions can ameliorate such risk.
`See e.g. Campbell v. Bos. Sci. Corp., 882 F.3d 70, 75 (4th Cir. 2018) (affirming district court’s
`consolidation of four product liability trials and rejecting defendant’s arguments of prejudice,
`noting that the district court had provided careful instruction that the jury was to consider evidence
`“as if each have been tried by itself”); In re 3M Combat Arms Earplug Prod. Liab. Litig., 2021
`WL 773018, at *1 (“To the extent any risk of prejudice or juror confusion remains, it will be
`ameliorated through prudent trial management and the use of carefully crafted jury instructions.”);
`In re Air Crash Disaster, 720 F. Supp. 1455, 1460 (D. Colo. 1988) (“The presentation of two
`representative cases for trial of common issues in multidistrict litigation does not present problems
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`7 Plaintiffs assert this based on the guidance provided in the Court’s tentative order on the motions to
`dismiss the bellwether complaints. Dkt. No. 1997.
`8 Smith v. Goodyear Tire & Rubber Co., 495 F.3d 224, 228 (5th Cir. 2007) (listing the elements of a
`MPLA claim as “(1) the [product] was defective at the time it left the control of the manufacturer or
`seller; (2) the defective condition rendered the product unreasonably dangerous to the consumer; and (3)
`the defective and unreasonably dangerous condition of the product proximately caused the damages for
`which recovery is sought.”);
`
`***
`compare with Smith v. ZOLL Med. Corp., 2020 WL 7233366, at *5 (W.D. Tenn. Dec. 8, 2020) (“(1) the
`product was defective and/or unreasonably dangerous, (2) the defect existed at the time the product left
`the manufacturer’s control, and (3) the plaintiff’s injury was proximately caused by the defective
`product.”).
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`which could not be addressed through a combination of appropriate jury instructions and verdict
`forms.”).
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`Moreover, outcomes of consolidated trials reflect that juries can and do weigh the case
`specific issues in rendering verdicts. In Campbell, the verdict awards differed (“the four plaintiffs
`did not receive identical damages awards, but instead received damages that varied by $1 million
`across plaintiffs.” Campbell, supra. In two different Vioxx trials where the court tried two plaintiffs
`together, the verdicts were split dismissing the injury case for one plaintiff and finding for the
`other. McDarby v. Merck & Co., 401 N.J.Super. 10, (N.J. Super Ct. App. Div. 2008), certif.
`improvidently granted 200 N.J. 267(2009).
`
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`C.
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`Consolidation Would Provide Significant Efficiencies for the Court, the
`Parties, and Witnesses.
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`
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`“A joint trial is appropriate where there is clearly substantial overlap in the issues, facts,
`evidence, and witnesses required.” Allstate Ins. Co. v. Vizcay, 826 F.3d 1326, 1333 (11th Cir.
`2016)); Manual for Complex Litigation (MCL), Fourth § 11.631 (“Whether consolidation is
`permissible or desirable depends largely on the amount of common evidence among the cases.”).
`A court could try “[a] series of consolidated trials on all issues, if they are sufficiently common . .
`. [involving] defined groups of similarly situated plaintiffs.” MCL, Fourth §22.93 at 466.
`
`Plaintiffs’ proposal would allow the issues of common proof to be presented and decided
`once, promoting judicial efficiency while alleviating tremendous burdens on the parties and
`witnesses. Currently, Plaintiffs estimate that the combined evidence presentations of all parties in
`a single-plaintiff trial would require a total of approximately 45 hours. Each additional plaintiff—
`relying on the common evidence of liability and general causation—is expected to add, on average,
`no more than 6 additional hours of case-specific evidence at trial.9 Thus, a six-plaintiff trial would
`likely involve 75 hours of evidence, while six single-plaintiff trials would take 270 hours, or 60-
`days. Put differently, for every additional 6 hours expended on an individual plaintiffs’ case in a
`multi-plaintiff trial, 39 hours are saved—before factoring in the hours saved by averting multiple
`jury selections, overlapping openings and closings, and separate deliberations on common issues.
`These additional hours will also add substantial expense. In addition to the hours of each trial
`team, the expense of additional presentations of extensive expert testimony will be immense. The
`effort and expense associated with repeatedly bringing the same witnesses and experts to trial to
`prove the same liability case will enable Defendants to protract proceedings and deny resolution
`to all. Consolidation is necessary and appropriate. In re Mentor Corp. Obtape Transobturator
`Sling Prods. Liab. Litig., 2010 WL 797273, at *3 (“Consolidation appears to be a particularly
`appropriate tool that should be seriously considered in modern-day multidistrict litigation.”).
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`Alternatively, The Court Should Consolidate Certain Bellwether Actions.
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`II.
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`
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`A multi-plaintiff trial is necessary to advance these proceedings efficiently. While all six
`bellwether actions under consideration can be properly consolidated in a single trial, if the Court
`seeks a smaller multi-plaintiff trial, Plaintiffs submit two alternative paths for multi-plaintiff
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`9 Since all cases involve the same primary injury – addiction, the expert and where applicable, treating
`doctor testimony will be similar with overlapping experts.
`6
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`Case 3:19-md-02913-WHO Document 2054 Filed 07/06/21 Page 7 of 7
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`Division of Plaintiffs by Common Law and Statutory Claims.
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`Single Jurisdiction, Multi-Plaintiff Trial.
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`bellwether trials.
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`A.
`
`As discussed above, the bellwether actions fall into two categories—those pursuing
`common law claims (Fish, Pesce, Widergren, Willis) and those pursuing consolidated statutory
`claims (Bain and Westfaul). Given the factual similarities of the entire bellwether pool (supra),
`consolidating the pool for trial based on their differing legal claims will iron out the primary
`differentiator, virtually eliminating any risk of jury confusion and streamlining trial management
`(e.g. jury instructions, verdict forms), while still saving an estimated 156 hours of trial time and
`attendant expense.
`
`Consolidating the common law actions for trial is also symmetrical—with two Plaintiff
`picks (Widergren and Willis) and two defendant picks (Fish and Pesce). Likewise, consolidating
`the statutory actions (Bain and Westfaul) is a natural fit: both plaintiffs are female, from
`neighboring southern states, and represented by the same counsel, Beasley Allen. Moreover,
`Westfaul is closer to a joint-selection, as Defendants previously asserted that they “do not oppose”
`the selection of Westfaul as a general matter. Dkt. No. 1981.
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`B.
`
`To the extent that the Court seeks the efficiencies of a multi-plaintiff trial with no state law
`variance, there is only one choice: consolidate the Widergren and Willis cases for the first
`bellwether trial. As discussed, the salient facts underlying Widergen and Willis’s cases are near
`identical (e.g. both started as minors, prior to addiction warnings on the packaging, attracted by
`ads and flavors, allege addiction as their primary injury) and their causes of action are identical.
`There can be no debate that Widergren and Willis present common questions of law and fact, and
`consolidating their cases for trial will save a minimum of 39 hours, or two weeks of trial. There
`are also factual distinctions between Widergren and Willis that will yield important information
`for resolution (e.g. age at JUUL initiation, timeframe of initiation, drug usage, treatment, and
`purchasing or usage habits). This initial trial will advance the proceedings as a whole. And—
`assuming the Court favors smaller trials—the Court can thereafter set consolidated trials for the
`remaining bellwether actions, based on the claim types described above (i.e. consolidated trials for
`Bain and Westfaul and then Fish and Pesce).
`
`
`Respectfully submitted,
`/s/ Dean Kawamoto
`/s/ Dena Sharp
`/s/ Sarah London
`/s/ Ellen Relkin
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`Co-Lead Counsel for Plaintiffs
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`cc: MDL Counsel of Record
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`7
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