Opinion
Civil Action No. 02-2064-KHV
January 12, 2003.
MEMORANDUM AND ORDER
This matter is before the Court on Defendants Whirlpool Corporation And Sears, Roebuck And Co.'s Motion To Consolidate And Memorandum In Support (Doc. #18) filed July 19, 2002. Pursuant to Fed.R.Civ.P. 42(a), defendants ask the Court to consolidate McCoy v. Whirlpool Corp., 02-2064-KHV; McCoy v. Whirlpool Corp., 02-2229-KHV; McCoy v. Whirlpool Corp., 02-2230-KHV and McCoy v. Whirlpool Corp., 02-2231-GTV. For reasons stated below, the Court sustains defendants' motion.
Background
In this case, James B. and Lorray McCoy seek to recover for property damage to their home when a fire occurred on February 26, 2000. At the time of the fire, American National Property and Casualty Company ("American National") insured plaintiffs' home and personal property, and it joins the McCoys as plaintiffs in this case. The fire not only caused extensive damage to the McCoy's home and personal property, it resulted in the death of their daughter. Plaintiffs have brought additional lawsuits for bodily injury and wrongful death, and a survival action — all arising from the same fire. All four lawsuits claim that Whirlpool Corporation ("Whirlpool") and Sears, Roebuck and Company ("Sears") are liable under theories of strict liability, negligence, and breach of express and implied warranty. In this case plaintiffs also claim that Whirlpool and Sears are liable under a theory of misrepresentation. In the other three lawsuits plaintiffs claim that Whirlpool and Sears are liable under a theory of gross, wanton and reckless conduct. Defendants seek to consolidate this case with the three other cases pending against the same defendants.
Procedural History
In September of 2000, plaintiffs filed three lawsuits against Whirlpool and Sears in the District Court of Miami County, Kansas seeking damages which arose from the fire on February 26, 2000. Defendants removed each case to the United States District Court for the District of Kansas:
(1) A wrongful death action by James B. and Lorray McCoy, Heirs at Law of Emily McCoy, Deceased, Case No. 00-2461-JWL;
(2) A survival action by James B. McCoy, Administrator of the Estate of Emily McCoy, Deceased, Case No. 00-2459-JWL; and
(3) A bodily injury claim for negligent infliction of emotional distress by Lorray McCoy, Case No. 00-2458-JWL.
These cases were consolidated and discovery proceeded until November of 2001, when the Court dismissed them without prejudice on plaintiffs' motion.
Three months later, on February 15, 2002, James B. and Lorray McCoy and American National filed this action for property damage arising out of the fire. Three months after that, on May 17, 2002, James B. and Lorray McCoy, in their individual and representative capacities, refiled the wrongful death, survival and bodily injury actions in this Court. These three cases were assigned case numbers 02-2229-KHV, 02-2230-KHV and 02-2231-GTV.
Defendants argue that the Court should consolidate all four cases under Fed.R.Civ.P. 42(a), because consolidation will promote economy of time and effort without circumscribing the opportunity for full litigation of all relevant claims. Plaintiffs oppose consolidation, arguing that it will be unfairly prejudicial and confuse the jury.
Rule 42(a) provides:
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 proceedings therein as may tend to avoid unnecessary cost or delay.
The decision whether to consolidate is left to the sound discretion of the court. See Shump v. Balka, 574 F.2d 1341, 1344 (10th Cir. 1978). In exercising its discretion, the court should consider whether judicial efficiency is best served by consolidation. See Lemons v. Bd. of County Comm'rs of County of Brown, Nos. 00-2292-KHV and 00-2297-CM, 2001 WL 395395 (D.Kan. Mar. 30, 2001) (citing Johnson v. Unified Gov't of Wyandotte County/Kan. City, Kan., No. 99-2407-JWL, 1999 WL 1096038, at *1 (D.Kan. Nov. 16, 1999); Fields v. Atchison, Topeka Santa Fe Ry. Co., No. 95-4026-DES, 1996 WL 109536, at *1 (D.Kan. Feb. 7, 1996)).
All four cases involve common questions of law and fact — they all arise from the fire on February 26, 2000 which was allegedly started by a Whirlpool dishwasher that was purchased from Sears. The four cases will require virtually identical witnesses and evidence, especially on the issue of liability. Defendants are the same in all four cases, and James B. and Lorray McCoy (albeit in different capacities) are plaintiffs in all four cases. These four cases involve the same occurrences and transactions and common questions of fact and law, and judicial efficiency will be best served by consolidation. The Court therefore sustains defendants' motion to consolidate the four cases.
All four cases have been assigned to Magistrate Judge David J. Waxse for pretrial discovery. They are at similar procedural stages and consolidation will not cause undue delay.
Plaintiffs argue that consolidation would be prejudicial because evidence of insurance coverage in the property damage case might prejudicially influence the jury's determination of monetary damages which would otherwise be recoverable in the non-property damage cases. Furthermore, plaintiffs argue that under the Kansas collateral source rule, all evidence regarding payment of damages from a source other than from the tortfeasor is inadmissible. Such concerns, however, do not outweigh the anticipated benefits of the proposed consolidation. While plaintiffs have elected to join American National, its role in this litigation should have no bearing on any verdict which a properly instructed jury might render. The collateral source rule has no apparent relevance to the question of consolidation. Again, it suggests an issue of substantive law which the Court can consider at length in future proceedings.
The collateral source rule provides that benefits which plaintiffs have received from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer. Gregory v. Carey, 246 Kan. 504, 507, 791 P.2d 1329 (1990) (citing Farley v. Engelken, 241 Kan. 663, 665-66, 740 P.2d 1058 (1987)). An injured party is therefore entitled to full compensatory damages from a tortfeasor irrespective of the payment of any portion of those damages by a source independent of the tortfeasor. Wendtling v. Med. Anesthesia Servs., 237 Kan. 503, 515, 701 P.2d 939 (1985).
IT IS THEREFORE ORDERED that Defendants Whirlpool Corporation And Sears, Roebuck And Co.'s Motion To Consolidate And Memorandum In Support (Doc. #18) filed July 19, 2002 be and hereby is SUSTAINED.
IT IS FURTHER ORDERED that with the consent of Senior Judge G. Thomas Van Bebber, McCoy v. Whirlpool, 02-2231-GTV be and hereby is transferred to the undersigned judge, where it is assigned Case No. 02-2231-KHV.
IT IS FURTHER ORDERED that McCoy v. Whirlpool Corp., 02-2064-KHV be and hereby is consolidated for all purposes with McCoy v. Whirlpool Corp., 02-2229-KHV; McCoy v. Whirlpool Corp., 02-2230-KHV and McCoy v. Whirlpool Corp., 02-2231-KHV. All future pleadings in all four cases shall be filed in Case No. 02-2064-KHV.