Opinion
C.A. 8:01-1633, Docket No. 1203.
April 8, 2002
BEFORE WM. TERRELL HODGES, CHAIRMAN, JOHN F. KEENAN, MOREY L. SEAR, BRUCE M. SELYA, JULIA SMITH GIBBONS, D. LOWELL JENSEN AND J. FREDERICK MOTZ,fn_ JUDGES OF THE PANEL
Judge Selya took no part in the decision of this matter, and Judge Motz took no part in the decision of this matter with respect to the two Southern District of Mississippi actions.
TRANSFER ORDER
Before the Panel are motions brought, pursuant to Rule 7.4, R.P.J.P.M.L., 199 F.R.D. 425, 435-36 (2001), by plaintiffs in the Northern District of Alabama action, ten Middle District of Florida actions, and two Southern District of Mississippi actions. These plaintiffs request the Panel to vacate its orders conditionally transferring the actions to the Eastern District of Pennsylvania for inclusion in the coordinated or consolidated pretrial proceedings occurring there in this docket. Defendant American Home Products Corporation (AHP) opposes the motions to vacate and favors inclusion of the actions in MDL-1203. AHP responds on behalf of itself as well as A.H. Robins Company, Inc., which merged into AHP and no longer exists as a separate entity; Wyeth-Ayerst Laboratories Company; and Wyeth-Ayerst Pharmaceuticals, Inc. in the actions in which they are named as defendants.
On the basis of the papers filed and hearing session held, the Panel finds that these thirteen actions involve common questions of fact with the actions in this litigation previously transferred to the Eastern District of Pennsylvania, and that transfer of these thirteen actions to the Eastern District of Pennsylvania for inclusion in the coordinated or consolidated pretrial proceedings in that district will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. The Panel further finds that transfer of these actions is appropriate for reasons expressed by the Panel in its original order, as amended, directing centralization in this docket. The Panel held that the Eastern District of Pennsylvania was the proper Section 1407 forum for actions involving claims of liability for exposure to one or more of three diet drugs — phentermine, fenfluramine, or dexfenfluramine. See In re Diet Drugs (Phentermine. Fenfluramine, Dexfenfluramine) Products Liability Litigation, 990 F. Supp. 834 (J.P.M.L. 1998). We note that the motion to remand to state court pending in each Southern District of Mississippi action can be presented to and decided by the transferee court. See, e.g., In re Ivy, 901 F.2d 7 (2nd Cir. 1990); In re Air Crash Disaster at Florida Everglades on December 29, 1972, 368 F. Supp. 812, 813 (J.P.M.L. 1973).
Plaintiff in the Northern District of Alabama action argues that his poor health, including a diagnosis of primary pulmonary hypertension allegedly caused by his ingestion of the diet drugs in question, weighs against transfer of his action. This argument is unpersuasive. We note that there is disagreement between the parties concerning whether the plaintiffs claims based on his condition are precluded by the MDL-1203 class settlement. Such a matter is particularly appropriate for resolution by the transferee court. To this plaintiff and any other parties who believe that the uniqueness of their particular situation and the type of their claims renders continued inclusion in MDL-1203 unnecessary or inadvisable, we point out that whenever the transferee judge deems remand of any claims or actions appropriate, procedures are available whereby this may be accomplished with a minimum of delay. See Rule 7.6, R.P.J.P.M.L., 199 F.R.D. at 436-38.
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, these thirteen actions are transferred to the Eastern District of Pennsylvania and, with the consent of that court, assigned to the Honorable Harvey Bartle III for inclusion in the coordinated or consolidated pretrial proceedings occurring there in this docket.