Plaintiffs lawyer Dickie Scruggs says he is considering dismissing hundreds of Katrina coverage lawsuits in federal court and refiling then in state court after a federal magistrate shot down his idea of a mass trial. Given that a trial with one plaintiff often has its fair share of confusion, breakdowns in planning and boring interludes, it’s worth taking a moment to picture in your mind’s eye this mass trial with hundreds of plaintiffs and witnesses milling about as it stretches into its 86th week. As I pointed out here a month ago, this idea seems about as far-fetched as Yoda going out for drinks with a Sith Lord.
Earlier this year, Scruggs filed separate lawsuits against State Farm, Nationwide and Allstate in which hundreds of plaintiffs were named in each complaint. The judge’s ruling says each plaintiff must file a separate complaint, or at least the individual facts of each plaintiff must be dealt with separately. Technically, the ruling allows the cases to be consolidated at some later time, but I can tell you that is not going to happen. With the major legal rulings on the insurers’ policies already decided in other cases, what is left is case-by-case consideration of the facts.
As Scruggs was no doubt thinking about when he talked to the reporter, tactically this is a huge advantage for insurers, who have the resources to manage these cases and try them if need be. Scruggs doesn’t. Scruggs was trying for a few knock-out rulings in early cases to scare insurers to the negotiating table on his terms, but it has not worked out that way. Scruggs is an endless spinner who often dances right around reporters without a legal background who don’t know the right questions to ask. He says he may refile in state court. Why? The class certification rules aren’t any different there. And wouldn’t insurers just remove the cases to federal court anyway?
I don’t see the opinion on the website for the U.S. District Court for the Southern District of Mississippi. I’ll pull a pdf from the court’s electronic filing system later, which as a lawyer I can do, but the public can’t. When are courts going to routinely put all opinions on their websites?
UPDATE: As promised, here is the pdf of Judge Walker’s opinion in Vaz v. Allstate. He calls the request for the "mass trial" a "quasi-class action lawsuit but without the regard for the rigid requirements for class certification." Judge Senter, also of the Southern District of Mississippi, earlier this year denied an attempt to certify a class for Katrina cases in Guice v. State Farm. Like Walker, Senter said the cases lacked common facts. Here is a link to Senter’s opinion in Guice.