Opinion
Docket No. 1203
June 13, 2002
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 and a defendant doctor in one Middle District of Georgia action and plaintiffs in fifteen Eastern District of Louisiana actions, one Middle District of Louisiana action, and two Southern District of Mississippi actions. These parties 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. Wyeth, except with respect to the Middle District of Georgia action to which it is not a party, opposes the motions to vacate and favors inclusion of the actions in MDL — 1203. Wyeth responds on behalf of itself as well as A.H. Robins Company, Inc., which merged into Wyeth 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. Eon Labs Manufacturing, Inc., and Geneva Pharmaceuticals, Inc., oppose the motion to vacate in the Middle District of Georgia action in which they are named as defendants and favor inclusion of that action in MDL — 1203.
On the basis of the papers filed and hearing session held, the Panel finds that these nineteen 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 nineteen 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 Prudential Insurance Company of America Sales Practices Litigation, 170 F. Supp.2d 1346, 1347-48 (J.P.M.L. 2001).
Plaintiff in the Middle District of Georgia action argues against transfer of his action that he was already a participant in the multidistrict proceedings, but voluntarily dismissed his prior action and opted out of the national class settlement. Plaintiff also argues that his present action contains unique claims, both as to causation and injury. We find, however, that the Middle District of Georgia action shares factual questions with actions in MDL-1203, including the question of whether ingestion of the diet drug in question caused the injuries and death of which plaintiff complains. We also conclude that the circumstances surrounding the plaintiffs prior action make the current matter particularly appropriate for resolution by the transferee court. To this plaintiff, the defendant doctor in this action, and any other parties who believe that the uniqueness of their particular situation or 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 nineteen 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.