Dawn Atwell v. Boston Scientific Corporation
740 F.3d 1160
| 8th Cir. | 2013Background
- Three separate Missouri state-product-liability actions (Atwell, Evans, Taylor) against Boston Scientific involving transvaginal mesh devices each named fewer than 100 plaintiffs but raised common legal/factual issues.
- Each plaintiffs’ group moved in the City of St. Louis Circuit Court for assignment to a single judge “for purposes of discovery and trial”; some motions expressly cited local rules authorizing reassignment for trial.
- At a combined hearing, plaintiffs’ counsel discussed selecting bellwether cases and achieving consistency of rulings; some counsel disavowed consolidation but endorsed single-judge assignment through trial-related stages.
- Boston Scientific removed the three actions to federal court under CAFA’s “mass action” jurisdiction, asserting the groups together proposed to have 100+ claims tried jointly.
- District courts remanded, concluding plaintiffs did not propose joint trials; Boston Scientific petitioned for permission to appeal. The Eighth Circuit granted review, held removal was timely, and vacated the remand orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CAFA’s "mass action" definition applies because plaintiffs "proposed to be tried jointly" | Plaintiffs argued their motions sought only coordination or assignment for pretrial proceedings, not joint trials | Boston Scientific argued plaintiffs proposed assignment and bellwether procedures that effectively proposed joint trials of 100+ claims, invoking CAFA | The court held plaintiffs’ motions and oral statements amounted to a proposal to try claims jointly; CAFA mass-action jurisdiction applies |
| Whether removal was timely under 28 U.S.C. § 1446(b)(3) | Plaintiffs argued their written assignment motions put defendant on notice earlier, so removal was untimely | Boston Scientific argued the 30-day clock began only after oral statements at the hearing made clear plaintiffs sought assignment through trial; those statements constitute “other paper” | The court held removal was timely because the transcript statements first clearly disclosed the trial-related proposal, triggering §1446(b)(3) |
| Proper interpretation of "tried jointly" versus "consolidated solely for pretrial proceedings" in § 1332(d)(11) | Plaintiffs urged a narrow reading: ‘‘tried jointly’’ means one single trial of all claims | Boston Scientific urged a broader reading: proposed bellwether or exemplar trials or any joint adjudicative mechanism satisfies "tried jointly" | The court adopted the broader interpretation (following Abbott Labs): proposing consolidation/assignment through trial that yields joint/adjudicative mechanisms qualifies as "tried jointly" |
| Appellate jurisdiction over remand under CAFA (28 U.S.C. §1453) | Plaintiffs said CAFA did not apply because no mass action existed, so remand orders are not reviewable | Boston Scientific said CAFA applies if cases were mass actions, authorizing interlocutory appeal of remand | The court found CAFA applied (mass action), so the court of appeals had jurisdiction to review and vacated remands |
Key Cases Cited
- In re Abbott Labs, 698 F.3d 568 (7th Cir.) (consolidation "through trial" can constitute a proposal to try claims jointly under CAFA)
- Bullard v. Burlington N. Santa Fe Ry., 535 F.3d 759 (7th Cir.) (broad reading of "tried jointly" captures exemplar or bellwether approaches)
- Koral v. Boeing Co., 628 F.3d 945 (7th Cir.) (proposal to try claims jointly may be implicit; joint trial can be limited to exemplars)
- Romo v. Teva Pharm. USA, Inc., 731 F.3d 918 (9th Cir.) (distinguishing consolidation through trial from mere coordination for pretrial proceedings)
- Knudson v. Sys. Painters, Inc., 634 F.3d 968 (8th Cir.) (30-day removal period under §1446(b)(3) begins when plaintiff explicitly discloses a removable remedy)
- Anderson v. Bayer Corp., 610 F.3d 390 (7th Cir.) (if CAFA does not apply, appellate review of remand is unavailable)