Opinion
DOCKET NO. 1407, C.A. No. 2:02-739
July 18, 2002
WILLIAM TERRELL HODGES, CHAIRMAN, JOHN F. KEENAN, MOREY L. SEAR, BRUCE M. SELYA, JULIA SMITH GIBBONS, D. LOWELL JENSEN AND J. FREDERICK MOTZ, JUDGES OF THE PANEL
Judge Selya took no part in the decision of this matter. Also, Judge Motz took no part in the disposition of this matter with respect to the Northern District of Mississippi action and two of the Eastern District of Louisiana actions (Ingram and Diana Williams).
TRANSFER ORDER
Before the Panel are two groups of motions brought, pursuant to Rule 7.4, R.P.J.P.M.L., 199 F.R.D. 425, 435-36 (2001), by parties seeking to vacate a Panel order conditionally transferring one or more of nine actions pending in the Southern District of Alabama, the Eastern District of Louisiana, the Western District of Louisiana, the Northern District of Mississippi or the Eastern District of Pennsylvania. These parties object to transfer of their actions to the Western District of Washington for inclusion in the centralized pretrial proceedings occurring there in this docket before Judge Barbara Jacobs Rothstein. Opposing transfer of the actions to which they are parties are i) plaintiffs in the five Eastern District of Louisiana actions, the Northern District of Mississippi and the Eastern District of Pennsylvania action; and ii) defendants The Chemins Company, Inc. (sued in the Southern District of Alabama action), Cytodyne Technologies, Inc. (sued in the Western District of Louisiana action and one of the Eastern District of Louisiana actions, Earl), and Metabolife, Inc. (sued in the Southern District of Alabama action and the Eastern District of Louisiana's Earl). If the Panel nevertheless determines to order Section 1407 transfer, then the three defendants who oppose transfer ask the Panel, pursuant to 28 U.S.C. § 1407 (a), to simultaneously sever and remand the claims asserted against them in the transferred actions to the actions' respective transferor districts. Various other defendants in the actions have responded in support of transfer.
On the basis of the papers filed and hearing session held, the Panel finds that these actions involve common questions of fact with actions in this litigation previously transferred to the Western District of Washington, and that transfer of the actions to that district for inclusion in the coordinated or consolidated pretrial proceedings occurring there will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. The Panel is persuaded that transfer of the actions is appropriate for reasons expressed by the Panel in its original order directing centralization in this docket. The Panel held that the Western District of Washington was the proper Section 1407 forum for actions brought by persons allegedly injured by products containing Phenylpropanolamine (PPA) — a substance which, until it recently became the subject of a public health advisory issued by the Food and Drug Administration, was used as an ingredient in many nasal decongestants and weight control products. See In re Phenyipropanolamine (PPA) Products Liability Litigation, 173 F. Supp.2d 1377 (J.P.M.L. 2001).
The plaintiffs opposing transfer of their actions premise much of their opposition to transfer on their argument that federal jurisdiction is lacking in their actions. These parties urge the Panel not to order transfer before remand motions are resolved by the transferor court. In some of their actions, however, remand motions have not even been filed. At any rate, we note that remand and other motions, if not resolved in the transferor court by the time of Section 1407 transfer, can be presented to and decided by the transferee judge. 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).
The defendants opposing transfer contend that their particular products contain ephedra rather than PPA, and that therefore transfer of the actions containing claims asserted against them should be denied because the actions will not share sufficient questions with the previously centralized MDL-1407 actions to warrant transfer. We point out that transfer under Section 1407 does not require a complete identity or even majority of common factual issues as a prerequisite to transfer. Nor is the presence of an additional type of defendant or product significant when all the underlying actions still contain, as here, product liability claims and factual allegations focusing on the safety of PPA. We observe that transfer under Section 1407 has the salutary effect of placing all actions in this docket before a single judge who can formulate a pretrial program that: 1) allows discovery with respect to any non-common issues to proceed concurrently with discovery on common issues, In re Joseph F. Smith Patent Litigation, 407 F. Supp. 1403, 1404 (J.P.M.L. 1976); 2) permits already completed discovery that is relevant to tag-along actions to be made applicable to those actions with a minimum of duplication and expense; and 3) ensures that pretrial proceedings will be conducted in a manner leading to the just and expeditious resolution of all actions to the overall benefit of the parties.
In light of the Panel's decision to order transfer of the three actions to which one or more of the opposing defendants are parties, these defendants alternatively request that the Panel sever and simultaneously remand the claims asserted against them in those actions (thereby effectively denying transfer of those claims). It may be, on further refinement of the issues and close scrutiny by the transferee judge, that these claims can be remanded in advance of other actions and claims in the transferee district. But we are unwilling, on the basis of the record before us, to make a determination at this time that the degree of interconnection between the claims against these defendants and the claims against other defendants in the affected actions is so small as to warrant exclusion of the "ephedra" claims from Section 1407 proceedings from the outset. 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 nine actions are transferred to the Western District of Washington and, with the consent of that court, assigned to the Honorable Barbara Jacobs Rothstein for inclusion in the coordinated or consolidated pretrial proceedings occurring there in this docket.