Prejudice & Conflict of Interest in Consolidating Negligence Actions, Study notes of Civil procedure

Download Prejudice & Conflict of Interest in Consolidating Negligence Actions and more Study notes Civil procedure in PDF only on Docsity! RECENT DEVELOPMENTS FEDERAL CIVIL PROCEDURE: CONSOLIDATION OF NEGLIGENCE ACTIONS INAPPROPRIATE WHERE LEAD COUNSEL ORDER AGGRAVATES CONFLICT OF INTEREST BETWEEN PLAINTIFFS IN Dupont v. Southern Pac. Co.' the Fifth Circuit Court of Appeals held that it was an abuse of discretion for the trial court to consoli- date suits initiated by the survivors of the passengers and the driver, especially when the appointment of a lead counsel was also required. Following a railroad crossing collision involving an automobile and one of defendant's trains, separate suits were brought against the railroad by the survivors of the .driver and by the survivors of the three other occupants of the car. The trial judge, utilizing his discretionary power under rule 42 (a),2 consolidated the cases and further required the designation of a lead counsel. Counsel for the passengers objected to consolidation, asserting that the additional issue of contributory negligence *in the driver's suit would confuse and prejudice the jury and that, because the passengers intended to prove concurrent negligence, a conflict of interests between the passengers and driver would result. The objection was overruled, .although the lead counsel order was modified to provide that at the trial each party might have an *opportunity to examine all witnesses. The jury retfirned four general. verdicts in favor of the defendant; thereupon plaintiffs appealed, contending that the order of consoli- dation was prejudicial and thus an abuse of the trial judge's dis- cretion. Federal Rule 42 (a)3 provides as follows: When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning pro- ceedings therein as may tend to avoid unnecessary costs or delay. 1 366 F.2d 193 (5th Cir. 1966), cert. denied, 87 Sup. Ct. 1027 (1967). 2 FED. R. Civ. P. 42 (a). 8 See generally 2B BARRON & HOLTOFF, FEDERAL PRACTICE AND PROCEDURE §§ 941-42 (Wright ed. 1961); 5 MooPa, FEDERAL PRACTICE 42.02 (2d ed. 1964). FEDERAL CIVIL PROCEDURE The trial judge is thus given broad authority to consolidate cases, for the only specified requirement is that the suits contain a single common question of law or fact; and, in accordance with the stated purpose of the Federal Rules "to secure the just, speedy, and in- expensive determination of every action,"4 the judge is encouraged to make use of this consolidation power wherever possible and fair.5 Courts have consolidated actions by different plaintiffs arising out of the same tort,6 suits involving the naturalization of several aliens," actions challenging the validity of a patent," and numerous claims in- volving a bankrupt's estate.9 Since the original consolidation statute of 1813,10 which provided that courts could consolidate cases where reasonable to avoid unnecessary costs or delay in the administration of justice, the chief purposes in allowing such consolidation have been convenience, justice, and judicial economy." Separate trials are eliminated, time and cost of reduplication of evidence is saved, a more thorough trial is made possible by having all the parties and evidence presented at one time, and inconsistent results from identi- cal or similar evidence are avoided.12 Concomitant with these advantages of judicial economy and justice are certain limitations on the power to consolidate. As one commentator has observed, courts, in keeping with the policy of judicial economy, postulate that the actions be capable of reasonably parallel determination, 1 although under the rule suits need contain only a single common question of law or fact to be consolidated. aFRD. R. Civ. P. 1. See also Blume, Required Joinder of Claims, 45 MicH. L. REv. 797, 803 (1947). 5See Popkin v. Eastern Air Lines, 204 F. Supp. 426, 431 (E.D. Pa. 1962), aff'd, 376 U.S. 612 (1964); Weitort v. A. H. Bull & Co., 192 F. Supp. 165, 166 (E.D. Pa. 1961). See generally CARre, CoDE PLEADING § 76 (2d ed. 1947). 0 E.g., Schreiber Trucking Co. v. Rail Trailer Co., 194 F. Supp. 164 (ED. Pa. 1961); Rando v. Luckenbach S.S. Co., 155 F. Supp. 220 (E.D.N.Y. 1957). 7 E.g., United States v. Knauer, 149 F.2d 519 (7th Cir. 1945), aff'd, 328 U.S. 654 (1946). 8 E.g., Scovill Mfg. Co. v. Dulberg, 194 F. Supp. 165 (S.D.N.Y. 1960), aff'd, 290 F.2d 821 (2d Cir.), cert. denied, 368 U.S. 882 (1961). ' E.g., Martin v. Campanaro, 156 F.2d 127 (2d Cir.), cert. denied, 329 U.S. 759 (1946). 20 Act of July 22, 1813, ch. 14, § 3, 3 Stat. 21. Il See MacAlister v. Guterma, 263 F.2d 65, 68 (2d Cir. 1958); Polak v. Koninklijke Luchtvaart Maatschappij N. V. KLM Royal Dutch Airlines Holland, 19 F.R.D. 87, 88 (S.D.N.Y. 1956). See also Note, 38 IND. L.J. 86 (1962). 12 See Getz v. Robinson, 232 F. Supp. 763, 765 (W.D. Pa. 1964); Moss v. Assodated Transp., Inc., 33 F.R.D. 335, 337 (ED. Tenn. 1963), aff'd, 344 F.2d 23 (6th Cir. 1965). 130 U. CHi. L. R.y. 373, 375 (1963). 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