Jerry Dunson v. Cordis Corporation, 2017 U.S. App. LEXIS 6446

Eight separate California state-court products-liability actions were filed against Cordis involving the same allegedly defective medical device; collectively the actions named more than 100 plaintiffs but each action had fewer than 100 plaintiffs.
Cordis removed the eight actions to federal court under CAFA’s "mass action" provision, 28 U.S.C. § 1332(d)(11), arguing the plaintiffs had "proposed to be tried jointly."
Plaintiffs had moved in state court to consolidate the actions “for all pretrial purposes, including discovery and other proceedings, and the institution of a bellwether‑trial process.”
The district court held the consolidation request did not propose a joint trial as required by § 1332(d)(11)(B)(i) and remanded the cases to state court; Cordis sought permission to appeal under 28 U.S.C. § 1453(c).
The core dispute on appeal: whether the plaintiffs’ request to establish a "bellwether‑trial process" amounted to a proposal that the cases be tried jointly (i.e., that bellwether results would be preclusive on the other plaintiffs).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiffs "proposed to be tried jointly" under CAFA § 1332(d)(11)(B)(i)	Plaintiffs argued their consolidation request sought only pretrial consolidation and a bellwether process for informational/settlement purposes, not a trial binding on other plaintiffs	Cordis argued the consolidation motion (filed under Cal. Civ. Proc. § 1048(a)) and references to avoiding "inconsistent adjudications" and a "bellwether‑trial process" plainly proposed joint trials whose results would be preclusive	Held: Plaintiffs did not propose a joint trial. Their motion sought pretrial consolidation and informational bellwether trials; nothing showed bellwether results would be binding on other plaintiffs, so CAFA mass‑action jurisdiction was not triggered

Mississippi ex rel. Hood v. AU Optronics Corp., 134 S. Ct. 736 (2014) (Congress made mass actions removable under CAFA to prevent evasion of CAFA’s jurisdictional scheme)
Corber v. Xanodyne Pharmaceuticals, Inc., 771 F.3d 1218 (9th Cir. 2014) (separate lawsuits by plaintiffs with fewer than 100 plaintiffs do not automatically create CAFA mass‑action jurisdiction absent a proposal to try claims jointly)
Briggs v. Merck Sharp & Dohme, 796 F.3d 1038 (9th Cir. 2015) (when plaintiffs propose a bellwether trial without more, it is presumed informational only and not binding on other plaintiffs)
Atwell v. Boston Scientific Corp., 740 F.3d 1160 (8th Cir. 2013) (example of requiring an affirmative proposal to try claims jointly, e.g., assignment to a single judge for discovery and trial)
In re Abbott Laboratories, 698 F.3d 568 (7th Cir. 2012) (consolidation language "through trial" distinguishes proposals that would trigger CAFA removal)
Bullard v. Burlington Northern Santa Fe Railway Co., 535 F.3d 759 (7th Cir. 2008) (bellwether trial whose results bind other plaintiffs constitutes a joint trial under CAFA)
Scimone v. Carnival Corp., 720 F.3d 876 (11th Cir. 2013) (burden on removing defendant to show plaintiffs proposed joint trial)