Summary
transferring certain listed actions to MDL Nos. 2325–2327
Summary of this case from Shepherd v. Baptist HealthOpinion
MDL Nos. 2325 2326 2327.
2012-02-7
IN RE: AMERICAN MEDICAL SYSTEMS, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION In re: Boston Scientific Corp. Pelvic Repair System Products Liability Litigation In re: Ethicon, Inc., Pelvic Repair System Products Liability Litigation.
Before JOHN G. HEYBURN II, Chairman, KATHRYN H. VRATIL, BARBARA S. JONES, PAUL J. BARBADORO, MARJORIE O. RENDELL, and CHARLES R. BREYER, Judges of the Panel.
TRANSFER ORDER
JOHN G. HEYBURN II, Chairman.
Before the Panel:
Before the Panel are three dockets involving allegations of defects in various models of pelvic surgical mesh products manufactured by three groups of manufacturers.
Judge W. Royal Furgeson, Jr. took no part in the decision of this matter.
Plaintiffs in almost twenty actions before the Panel have moved pursuant to 28 U.S.C. § 1407, to centralize all MDL No. 2325,MDL No. 2326, and MDL No. 2327 actions in the Southern District of West Virginia. In MDL No. 2325, defendant AMS has moved to centralize the MDL No. 2325 actions in the District of Minnesota or, alternatively, if the Panel deems centralization of three MDLs to be appropriate, suggests the Southern District of West Virginia as transferee district. This litigation currently consists of approximately 150 actions spread across the country,
American Medical Systems, Inc. and related entities (AMS); Boston Scientific Corp. (Boston Scientific); and Ethicon, Inc., Johnson & Johnson, and related entities (Ethicon).
as listed on the attached schedules. The Panel has been notified of numerous additional potentially related actions.
Two additional actions were included in the MDL No. 2325 motion, and a third action was included in the motions to centralize MDL Nos. 2325 and 2327, but they have each been remanded to state court or voluntarily dismissed. An additional unrelated action inadvertently was included in the MDL No. 2327Section 1407 motion, but movants have withdrawn that action from consideration on the motion.
These actions and any other related actions are potential tag-along actions. See Rules 1.1(h), 7.1, and 7.2.
Plaintiffs in over 100 actions and potentially related actions support centralization of all actions in the Southern District of West Virginia. Responding plaintiffs, alternatively or in the first instance, also have suggested other transferee districts for one or more of these MDLs, including the Eastern District of Louisiana, the Western District of Louisiana, the Eastern District of Pennsylvania, and the Northern District of California. Plaintiff in the District of New Jersey Bienstock action opposes centralization, and plaintiffs in the District of Nevada Erwin action request the Panel defer transferring their case until their motion for remand to state court is decided, but concede that if remand is denied, transfer is appropriate. Defendant Boston Scientific suggests centralization of the MDL No. 2326 actions in the Western District of Oklahoma or, if the Panel deems centralization of three MDLs in one district to be appropriate, supports the Southern District of West Virginia as transferee district. Defendant Ethicon suggests centralization of only the MDL No. 2327 actions in the District of New Jersey or, alternatively, the Northern District of Georgia.
Almost all parties agree that centralization of each of these separate MDLs is appropriate. The actions in each MDL share factual issues arising from allegations of defects in pelvic surgical mesh products manufactured by AMS, Boston Scientific, and Ethicon, respectively. Centralization therefore will eliminate duplicative discovery; prevent inconsistent pretrial rulings; and conserve the resources of the parties, their counsel and the judiciary. Moreover, centralization of each litigation is consistent with our decisions in In re Mentor Corp. ObTape Transobturator Sling Products Liability Litigation, MDL No. 2004, 588 F.Supp.2d 1374 (J.P.M.L.2008); and In re Avaulta Pelvic Support Systems Products Liability Litigation, MDL No. 2187, 746 F.Supp.2d 1362 (J.P.M.L.2010).
The central dispute among the parties is where each MDL should proceed. Most plaintiffs argue in favor of three MDLs proceeding in one district; namely, the Southern District of West Virginia. Defendants prefer centralization of each litigation in separate districts. We are persuaded that the Southern District of West Virginia is the most appropriate transferee forum for each of these MDLs. Chief Judge Joseph R. Goodwin of that district is currently presiding over MDL No. 2187, which involves claims of defects in similar pelvic surgical mesh products, and is uniquely situated to preside over the similar claims in these three MDLs. The pelvic surgical mesh products at issue in MDL Nos. 2325, 2326, and 2327 are used to treat similar conditions as those at issue in MDL No. 2187, and they have allegedly resulted in similar injuries. Almost all responding plaintiffs support centralization in this district, and defendants AMS and Boston Scientific concede that the Southern District of West Virginia is an appropriate transferee district. Finally, a number of these actions are brought by plaintiffs who were implanted with multiple products made by multiple manufacturers. Centralization of the three MDLs in one court will allow for coordination of any overlapping issues of fact in such multi-product, multi-defendant actions.
The Panel has determined in consultation with the transferee judge to transfer actions involving multiple manufacturer defendants to the MDL involving the first named defendant in that action.
We will not delay transfer of the District of Nevada Erwin action. Plaintiffs can present their motion for remand to state court to 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). We similarly decline to exclude the District of New Jersey Bienstock action from MDL No. 2327, as it shares questions of fact with the actions in that MDL and does not appear to be so far advanced that it would not benefit from centralized proceedings.
We decline to include three of the actions listed on the MDL No. 2325 motion in centralized proceedings, as listed on Schedule B. After the motions to centralize were filed, plaintiffs in the District of Minnesota Flight action amended their complaint to bring claims only against an unrelated manufacturer. AMS is no longer named in this action and, therefore, it appears that it does not belong in MDL No. 2325. Additionally, the Southern District of West Virginia Culbertson action that was included in the initial motion for centralization in MDL No. 2325 is currently a part of MDL No. 2187, as it involves claims against C.R. Bard, Inc. (Bard). In transferring the claims against Bard in October 2011, the Panel separated and remanded claims against AMS to the District of South Carolina. The claims involving AMS, therefore, are still pending in the District of South Carolina, not in the Southern District of West Virginia. We have determined, however, that it is beneficial in this litigation for a particular action involving claims against multiple manufacturers to remain whole and proceed as one action. Therefore, the Panel will place the remaining claims in the District of South Carolina Culbertson action on a conditional transfer order for MDL No. 2187 in due course. Finally, the Western District of Louisiana Waldroup action, which names Boston Scientific as its first defendant, is included in the MDL No. 2325 motion for centralization but not on the MDL No. 2326 motion for centralization. As we have determined to transfer such multi-product, multi-defendant actions to the MDL involving the first named defendant, the Panel will not transfer this action with the present order, but will instead place the action on a conditional transfer order in MDL No. 2326.
On the basis of the papers filed and hearing session held we find that the actions contained in each MDL involve common questions of fact, and that centralization of each of MDL No. 2325, 2326 and 2327 in the Southern District of West Virginia will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation.
IT IS THEREFORE ORDERED that the motions for centralization of MDL No. 2325,MDL No. 2326, and MDL No. 2327 in the Southern District of West Virginia are granted.
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1407, the actions listed on Schedule A, encompassing MDL No. 2325 actions involving AMS, are transferred to the Southern District of West Virginia and, with the consent of that court, assigned to the Honorable Joseph R. Goodwin for coordinated or consolidated pretrial proceedings.
IT IS FURTHER ORDERED that transfer under Section 1407 of the three actions listed on Schedule B is denied.
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1407, the actions listed on Schedule C, encompassing MDL No. 2326 actions involving Boston Scientific, are transferred to the Southern District of West Virginia and, with the consent of that court, assigned to the Honorable Joseph R. Goodwin for coordinated or consolidated pretrial proceedings.
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1407, the actions listed on Schedule D, encompassing MDL No. 2327 actions involving Ethicon, are transferred to the Southern District of West Virginia and, with the consent of that court, assigned to the Honorable Joseph R. Goodwin for coordinated or consolidated pretrial proceedings.
SCHEDULE A
MDL No. 2325 — IN RE: AMERICAN MEDICAL SYSTEMS, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION
Northern District of Alabama
Shannon Farr, et al. v. American Medical Systems, Inc., et al., C.A. No. 5:11–02767
District of Arizona
Kaylin Oldfather v. American Medical Systems, Inc., C.A. No. 2:11–02022
Central District of California
Jill Engledow v. Mentor Corporation, et al., C.A. No. 2:11–07391
Susan Galbreath, et al. v. Steve Seung Yil Koh, M.D., et al., C.A. No. 2:11–08387
Northern District of California
Ellen Ambroff, et al. v. American Medical Systems, Inc., C.A. No. 3:08–04289
Shellie Hill, et al. v. American Medical Systems, Inc., C.A. No. 3:11–04610
Judy Anna Winegardner, et al. v. American Medical Systems, Inc., C.A. No. 3:11–04611
Iona Metcalf, et al. v. American Medical Systems, Inc., C.A. No. 3:11–04612
Jenelle Hoover, et al. v. American Medical Systems, Inc., C.A. No. 3:11–04614
Kathleen Nichols–Gould, et al. v. American Medical Systems, Inc., C.A. No. 3:11–04616
Vicki Gray v. American Medical Systems, Inc., C.A. No. 3:11–04668
Kathleen Schmidt, et al. v. American Medical Systems, Inc., C.A. No. 3:11–04670
Francine Baia, et al. v. American Medical Systems, Inc., C.A. No. 3:11–04671
Summer Abrego v. American Medical Systems, Inc., C.A. No. 3:11–04672
Carole Chenoweth v. American Medical Systems, Inc., C.A. No. 3:11–05145
Patricia Hendricksen v. American Medical Systems, Inc., C.A. No. 3:11–05146
Sherry Maloney v. American Medical Systems, Inc., C.A. No. 3:11–05312
Lisa Roddy, et al. v. American Medical Systems, Inc., C.A. No. 4:11–03970
Michelle Arsenault v. American Medical Systems, Inc., C.A. No. 4:11–04343
Susan Petkovich, et al. v. American Medical Systems, Inc., C.A. No. 4:11–04613
Letitia Greene–Newton, et al. v. American Medical Systems, Inc. C.A. No. 4:11–04615
Veda Lester v. American Medical Systems, Inc., C.A. No. 4:11–04669
April Stevens v. American Medical Systems, Inc., C.A. No. 4:11–05143
Joette Boone, et al. v. American Medical Systems, Inc., et al., C.A. No. 4:11–05144
Cindy Wyatt, et al. v. American Medical Systems, Inc., C.A. No. 4:11–05147
Jan Glisson, et al. v. American Medical Systems, Inc., C.A. No. 5:11–04945
Ramona Foley, et al. v. American Medical Systems, Inc., C.A. No. 5:11–05014
District of Delaware
Cathy Hoppe v. American Medical Systems, Inc., et al., C.A. No. 1:11–01012
District of District of Columbia
Deborah Tedford v. American Medical Systems, Inc., C.A. No. 1:11–01472
Northern District of Florida
Carolyn Finlay v. American Medical Systems, Inc., C.A. No. 3:11–00507
Northern District of Georgia
Kimberly Williams v. American Medical Systems, Inc., et al., C.A. No. 1:11–02782
Cynthia Daniel, et al. v. American Medical Systems, Inc., C.A. No. 1:11–03261
Holly Johnson, et al. v. American Medical Systems, Inc., C.A. No. 1:11–03925
Patricia Ledford, et al. v. American Medical Systems, Inc., C.A. No. 1:11–03926
Lynn Pope, et al. v. American Medical Systems, Inc., C.A. No. 1:11–03928
Laurie Schultz v. American Medical Systems, Inc., C.A. No. 1:11–03929
Sonya Waren, et al. v. American Medical Systems, Inc., C.A. No. 2:11–00310
Tammy Powell, et al. v. American Medical Systems, Inc., C.A. No. 3:11–00159
Maritza Reneau, et al. v. American Medical Systems, Inc., C.A. No. 3:11–00180
Western District of Louisiana
Patsy J. Brandao, et al. v. American Medical Systems Holdings Inc., et al., C.A. No. 5:11–01767
JoAnn B. Pickard v. American Medical Systems Inc., et al., C.A. No. 5:11–01845
District of Maryland
Robin Dahl v. American Medical Systems, Inc., C.A. No. 1:11–02925
District of Minnesota
Amy Wells, et al. v. American Medical Systems, Inc., C.A. No. 0:11–02141
Bobbie Fearn, et al. v. American Medical Systems, Inc., C.A. No. 0:11–02502
JoAnn Hill v. American Medical Systems, Inc., C.A. No. 0:11–02589
District of Nevada
Carol S. Austin–Fink v. American Medical Systems, Inc., C.A. No. 2:09–01981
Connie Erwin, et al. v. American Medical Systems, Inc., et al., C.A. No. 2:11–01475
Debra Grumbles v. American Medical Systems, Inc., C.A. No. 2:11–01582
Middle District of North Carolina
Tamara Tucker, et al. v. American Medical Systems, Inc., et al., C.A. No. 1:11–00974
Western District of Oklahoma
Lisa Berry v. American Medical Systems, Inc., et al., C.A. No. 5:11–00748
Tina Gordon v. American Medical Systems Holdings Inc., et al., C.A. No. 5:11–01259
Jennifer Gaines, et al. v. American Medical Systems, Inc., C.A. No. 5:11–01299
Eastern District of Pennsylvania
Paulette Lewis v. American Medical Systems, Inc., C.A. No. 2:11–05445
Kathleen Craig, et al. v. American Medical Systems, Inc., C.A. No. 2:11–05462
Linda Osman, et al. v. American Medical Systems, Inc., C.A. No. 2:11–05465
Helga White v. American Medical Systems, Inc., et al., C.A. No. 2:11–05520
Jennifer Heiser v. Endo Pharmaceuticals, C.A. No. 2:11–06651
Maggie McEwan, et al. v. Endo Pharmaceuticals, C.A. No. 2:11–06652
Kathleen Kenton, et al. v. Endo Pharmaceuticals, C.A. No. 2:11–06653
Bernella Meche v. Endo Pharmaceuticals, C.A. No. 2:11–06654
Holli Allen, et al. v. Endo Pharmaceuticals, C.A. No. 2:11–06655
Mary Howard, et al. v. Endo Pharmaceuticals, C.A. No. 2:11–06656
Joann Cosma, et al. v. Endo Pharmaceuticals, C.A. No. 2:11–06657
Evelyn Bonilla, et al. v. Endo Pharmaceuticals, C.A. No. 2:11–06658
Jane Mixon, et al. v. Endo Pharmaceuticals, C.A. No. 2:11–06659
Helen Reaves v. Endo Pharmaceuticals, C.A. No. 2:11–06660
Mary Smith, et al. v. Endo Pharmaceuticals, C.A. No. 2:11–06661
Joann Fosbenner, et al. v. Endo Pharmaceuticals, C.A. No. 2:11–06662
Marie Quigley, et al. v. Endo Pharmaceuticals, C.A. No. 2:11–06663
April Perdue, et al. v. Endo Pharmaceuticals, C.A. No. 2:11–06664
Valinda Aumiller v. Endo Pharmaceuticals, et al., C.A. No. 2:11–06804
Gina Kolar v. Endo Pharmaceuticals, et al., C.A. No. 2:11–06805
Candace Lyons v. Endo Pharmaceuticals, et al., C.A. No. 2:11–06806
Gearal Moneypenny, et al. v. Endo Pharmaceuticals, et al., C.A. No. 2:11–06807
Susan Cox v. Endo Pharmaceuticals, et al., C.A. No. 2:11–06808
Katherine Simmons v. Endo Pharmaceuticals, et al., C.A. No. 2:11–06809
Kaci Mitchell v. Endo Pharmaceuticals, C.A. No. 2:11–07131
Joycebeth Stoutamire v. Endo Pharmaceuticals, C.A. No. 2:11–07134
Gidget Crossett v. Endo Pharmaceuticals, C.A. No. 2:11–07135
Western District of Texas
Sandra Colon v. American Medical Systems, Inc., C.A. No. 1:11–00872
District of Utah
Jeanne Kramer, et al. v. American Medical Systems, Inc., C.A. No. 2:11–01004
Western District of Washington
Diane Horton, et al. v. American Medical Systems, Inc., et al., C.A. No. 3:11–05780
Southern District of West Virginia
Jessica Swaim, et al. v. American Medical Systems, Inc., et al., C.A. No. 2:11–00827
Virginia Johnson, et al. v. American Medical Systems, Inc., C.A. No. 2:11–00933
SCHEDULE B
ACTIONS FOR WHICH TRANSFER IS DENIED
Western District of Louisiana
Bette G. Waldroup, et al. v. Boston Scientific Corp., et al., C.A. No. 3:11–01854
District of Minnesota
Marsha Flight, et al. v. American Medical Systems, Inc., et al., C.A. No. 0:11–01761
Southern District of West Virginia
Fronde Culbertson, et al. v. C.R. Bard, Inc., et al., C.A. No. 2:11–00796
SCHEDULE C
MDL No. 2326 — IN RE: BOSTON SCIENTIFIC CORP. PELVIC REPAIR SYSTEMS PRODUCTS LIABILITY LITIGATION
Middle District of Alabama
Kimberly Barber, et al. v. Boston Scientific Corp., C.A. No. 2:11–00952
Northern District of Alabama
Anna Buchanan, et al. v. Boston Scientific Corp., C.A. No. 2:11–03946
Mary Nalley, et al. v. Boston Scientific Corp., C.A. No. 4:11–03521
Ava Kirkpatrick v. Boston Scientific Corp., C.A. No. 5:11–03759
District of Arizona
Catherine A. Avent v. Boston Scientific Corp., C.A. No. 2:11–02280
Central District of California
Sherry Herkal v. Boston Scientific Corp., et al., C.A. No. 2:11–08678
Northern District of California
Michelle Spence, et al. v. Boston Scientific Corp., C.A. No. 3:11–04961
Southern District of Florida
Marta Iglesias, et al. v. Boston Scientific Corp., C.A. No. 1:11–24263
Northern District of Georgia
Tami Goodson v. Boston Scientific Corp., C.A. No. 1:11–03023
Geraldine Bailey, et al. v. Boston Scientific Corp., C.A. No. 1:11–03981
Nicole Preston, et al. v. Boston Scientific Corp., C.A. No. 1:11–03982
Western District of Louisiana
Minnie V. Mann v. Boston Scientific Corp., C.A. No. 3:11–01785
Anita M. Jolly, et al. v. Boston Scientific Corp., C.A. No. 3:11–01871
Amanda Powell, et al. v. Boston Scientific Corp., C.A. No. 3:11–01876
Nancy K. Williams v. Boston Scientific Corp., et al., C.A. No. 3:11–01938
Karen S. Weller v. Boston Scientific Corp., C.A. No. 5:11–01696
Western District of North Carolina
Patsy Meadows, et al. v. Boston Scientific Corp., C.A. No. 5:11–00143
Western District of Oklahoma
Terre Hammonds v. Boston Scientific, Inc., C.A. No. 5:11–00663
District of South Carolina
Donna Beatty, et al. v. Boston Scientific Corp., C.A. No. 2:11–03147
Lisa Daniels v. Boston Scientific Corp., C.A. No. 3:11–02849
Middle District of Tennessee
Tammy L. Kennamore v. Boston Scientific Corp., C.A. No. 3:11–01064
Western District of Texas
Leona Webb, et al. v. Boston Scientific Corp., C.A. No. 1:11–00873
Southern District of West Virginia
Brenda Moyer, et al. v. Boston Scientific Corp., C.A. No. 2:11–00810
SCHEDULE D
MDL No. 2327 — IN RE: ETHICON, INC., PELVIC REPAIR SYSTEMS PRODUCTS LIABILITY LITIGATION
Northern District of Florida
Barbara Dykes v. Ethicon, Inc., et al., C.A. No. 3:11–00564
Southern District of Florida
Susan Thaman, et al. v. Ethicon, Inc., C.A. No. 2:11–14390
Middle District of Georgia
Amy Holland, et al. v. Johnson & Johnson, et al., C.A. No. 3:11–00135
Carrie Smith v. Ethicon, Inc., et al., C.A. No. 5:11–00467
Northern District of Georgia
Iris Geraldine Carr, et al. v. Ethicon, Inc., et al., C.A. No. 1:11–02217
Cathy Warlick, et al. v. Ethicon, Inc., et al., C.A. No. 1:11–02758
Doris Jackson v. Johnson & Johnson, et al., C.A. No. 1:11–03903
Quillan Garnett, et al. v. Johnson & Johnson, et al, C.A. No. 1:11–03904
Kathy Barton v. Gynecare, Inc., et al., C.A. No. 3:11–00176
Southern District of Georgia
Mary Luellen Kilday, et al. v. Johnson & Johnson, et al., C.A. No. 4:11–00286
Janice Swaney v. Johnson & Johnson, et al., C.A. No. 4:11–00287
Mary F. Cone v. Ethicon, Inc., et al., C.A. No. 5:11–00110
District of Kansas
Joy Essman, et al. v. Ethicon, Inc., et al., C.A. No. 2:11–02595
Eastern District of Louisiana
Linda B. Ryan v. Johnson & Johnson, Inc., et al., C.A. No. 2:11–02751
Western District of Louisiana
Teri Key Shively, et al. v. Johnson & Johnson, et al., C.A. No. 3:11–00362
Terrie S. Gregory, et al. v. Johnson & Johnson Inc., et al., C.A. No. 3:11–01768
Tina Morrow, et al. v. Johnson & Johnson Inc., et al., C.A. No. 3:11–01866
Susan C. Hayes, et al. v. Johnson & Johnson Inc., et al., C.A. No. 3:11–01897
Charlene Logan Taylor v. Johnson & Johnson Inc., et al., C.A. No. 5:11–01894
Shirley Carroll, et al. v. Johnson & Johnson Inc., et al., C.A. No. 5:11–01937
Southern District of Mississippi
Polly Middlebrook v. Ethicon, Inc., C.A. No. 4:11–00169
Western District of Missouri
Sandra L. Woolfe v. Ethicon, Inc., et al., C.A. No. 4:11–01040
District of New Jersey
Caryn Bienstock v. Ethicon, Inc., et al., C.A. No. 3:11–04080
Northern District of New York
Kathleen Wolfe v. Ethicon, Inc., C.A. No. 6:11–00180
Northern District of Ohio
Judy White, et al. v. Ethicon, Inc., et al., C.A. No. 1:11–01562
Joann Heather, et al. v. Ethicon, Inc., et al., C.A. No. 5:11–02012
Southern District of Ohio
Sharon Boggs, et al. v. Ethicon, Inc., C.A. No. 1:11–00516
Eastern District of Pennsylvania
Joanna Jacobson v. Ethicon, Inc., C.A. No. 2:11–05591
Rose Gomez, et al. v. Ethicon, Inc., C.A. No. 2:11–05625
Amanda Deleon, et al. v. Ethicon, Inc., C.A. No. 5:11–05538
Western District of Pennsylvania
Deborah A. Smith v. Ethicon, Inc., C.A. No. 1:11–00279
District of South Carolina
Charlotte Hargrove v. Johnson & Johnson, et al., C.A. No. 2:11–03242
Eastern District of Tennessee
Helen Brown, et al. v. Johnson & Johnson, et al., C.A. No. 3:11–00483
District of Utah
Carol Dimock v. Ethicon, Inc., et al., C.A. No. 2:11–01048
Western District of Washington
Dawna Hankins v. Ethicon, Inc., C.A. No. 2:11–01635
Southern District of West Virginia
Wilma Johnson v. Ethicon, Inc., C.A. No. 2:11–00809
Eastern District of Wisconsin
Deborah Lozano, et al. v. Ethicon, Inc., C.A. No. 2:11–00836