Opinion
DOCKET NO. 1203, C.A. No. 3:01-948,
April 19, 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, and Judge Motz took no part in the decision of this matter with respect to four Southern District of Mississippi actions (Mosley, Stallings, Binion, and Sanders).
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 five Southern District of Mississippi actions, one Southern District of New York action, and one Western District of Pennsylvania action. 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. With respect to the Southern District of Mississippi actions and the Western District of Pennsylvania action, defendant American Home Products Corporation (ALHIP) 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. Similarly, MCR Pharmaceuticals, Inc. a/k/a American Pharmaceuticals, Inc. a/k/a MCR American Pharmaceuticals, Inc. opposes the motion to vacate in the five Southern District of Mississippi actions in which it is named as a defendant and favors inclusion of these actions in MDL-1203. The attorneys and law firms named as defendants in the Southern District of New York action oppose the motion to vacate in that action and favor inclusion of the action in MIDL-1203.
On the basis of the papers filed and hearing session held, the Panel finds that these seven 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 seven 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).
Plaintiffs in the Southern District of New York action argue against transfer that there is no commonality in questions of fact between their action and the actions already included in MDL-1203. Plaintiffs emphasize that their action does not relate to claims of products liability against pharmaceutical companies, but rather, to claims of negligence against the attorneys acting as class counsel and plaintiffs' management committee in MDL-1203. We find, however, that this action shares factual questions with actions in MDL-1203, including the question of whether ingestion of the diet drugs in question caused neurotoxic injuries similar to those alleged by plaintiffs. We note that plaintiffs' claims directly challenge the findings of the MDL-1203 court with respect to such injuries as well as the status of neurotoxic injuries in the national class action settlement in this litigation. Accordingly, this matter is particularly appropriate for resolution by the transferee court. To these plaintiffs 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 seven 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.