In re Phenylpropanolamine (Ppa) Products

• Decision Date: 29 August 2006
• Docket Number: No. 05-35121.,No. 04-35614.,No. 04-35370.,No. 05-35105.,No. 04-35621.,No. 04-35588.,No. 05-35129.,No. 04-36137.,No. 05-35184.,No. 05-35147.,No. 04-35611.,No. 04-35562.,No. 04-35884.,04-35370.,04-35562.,04-35588.,04-35611.,04-35614.,04-35621.,04-35884.,04-36137.,05-35105.,05-35121.,05-35129.,05-35147.,05-35184.
• Citation: 460 F.3d 1217
• Parties: In re PHENYLPROPANOLAMINE (PPA) PRODUCTS LIABILITY LITIGATION,<SMALL><SUP>*</SUP></SMALL> Shantell Allen, on behalf of Allen, Vera, et al.,<SMALL><SUP>*</SUP></SMALL> Plaintiffs-Appellants, v. Bayer Corporation, et al., Defendants-Appellees. Leon Anderson, Jr., et al.,<SMALL><SUP>*</SUP></SMALL> Plaintiffs-Appellants, v. Bayer Corporation, et al., Defendants-Appellees. Leslie Ackel, et al.,<SMALL><SUP>*</SUP></SMALL> Plaintiffs-Appellants, v. Bayer Corporation, et al., Defendants-Appellees. Bridgett Arrington, et al.,<SMALL><SUP>*</SUP></SMALL> Plaintiffs-Appellants, v. Bayer Corporation, et al., Defendants-Appellees. Calvin McGriggs, et al.,<SMALL><SUP>*</SUP></SMALL> Plaintiffs-Appellants, v. Delaco Company, et al., Defendants-Appellees. Betty Clinton, et al.,<SMALL><SUP>*</SUP></SMALL> Plaintiffs-Appellants, v. Delaco Company, et al., Defendants-Appellees. Donna Sasseen, Plaintiff-Appellant, v. IDE Interstate Inc., et al., Defendants-Appellees. Elizabeth Page, Plaintiff-Appellant, v. Bayer Corporation, Defendant-Appellee. Marie Riley, Plaintiff-Appellant, v. Wyeth, obo itself and its unincorporated division, Wyeth Consumer Healthcare, fka Whitehall-Robins Healthcare formerly known as American Home Products Corporation, et al., Defendants-Appellees. and Keva K. Alford, on behalf of all wrongful death beneficiaries of Henry Dexter, et al.,<SMALL><SUP>*</SUP></SMALL> Plaintiffs-Appellants, and Eddie Bullock, et al., Plaintiffs, v. Wyeth, obo itself and its unincorporated division, Wyeth Consumer Healthcare, fka Whitehall-Robins Healthcare formerly known as American Home Products Corporation, et al., Defendants-Appellees, and Novartis Pharmaceuticals Corporation, et al., Defendants. Bobby Holmes, et al., Plaintiffs-Appellants, v. Bayer Corporation, Defendant-Appellee. Melody McDaniel, Plaintiff-Appellant, v. Wal-Mart Stores, Inc., et al., Defendants-Appellees. Samantha Samuels, et al., Plaintiffs-Appellants, v. Bayer Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

460 F.3d 1217

In re PHENYLPROPANOLAMINE (PPA) PRODUCTS LIABILITY LITIGATION,^* Shantell Allen, on behalf of Allen, Vera, et al.,^* Plaintiffs-Appellants, v. Bayer Corporation, et al., Defendants-Appellees.

Leon Anderson, Jr., et al.,^* Plaintiffs-Appellants, v. Bayer Corporation, et al., Defendants-Appellees.

Leslie Ackel, et al.,^* Plaintiffs-Appellants, v. Bayer Corporation, et al., Defendants-Appellees.

Bridgett Arrington, et al.,^* Plaintiffs-Appellants, v. Bayer Corporation, et al., Defendants-Appellees.

Calvin McGriggs, et al.,^* Plaintiffs-Appellants, v. Delaco Company, et al., Defendants-Appellees.

Betty Clinton, et al.,^* Plaintiffs-Appellants, v. Delaco Company, et al., Defendants-Appellees.

Donna Sasseen, Plaintiff-Appellant, v. IDE Interstate Inc., et al., Defendants-Appellees.

Elizabeth Page, Plaintiff-Appellant, v. Bayer Corporation, Defendant-Appellee.

Marie Riley, Plaintiff-Appellant, v. Wyeth, obo itself and its unincorporated division, Wyeth Consumer Healthcare, fka Whitehall-Robins Healthcare formerly known as American Home Products Corporation, et al., Defendants-Appellees. and Keva K. Alford, on behalf of all wrongful death beneficiaries of Henry Dexter, et al.,^* Plaintiffs-Appellants, and Eddie Bullock, et al., Plaintiffs, v. Wyeth, obo itself and its unincorporated division, Wyeth Consumer Healthcare, fka Whitehall-Robins Healthcare formerly known as American Home Products Corporation, et al., Defendants-Appellees, and Novartis Pharmaceuticals Corporation, et al., Defendants.

Bobby Holmes, et al., Plaintiffs-Appellants, v. Bayer Corporation, Defendant-Appellee.

Melody McDaniel, Plaintiff-Appellant, v. Wal-Mart Stores, Inc., et al., Defendants-Appellees.

Samantha Samuels, et al., Plaintiffs-Appellants, v. Bayer Corporation, Defendant-Appellee.

No. 04-35370.

No. 04-35562.

No. 04-35588.

No. 04-35611.

No. 04-35614.

No. 04-35621.

No. 04-35884.

No. 04-36137.

No. 05-35105.

No. 05-35121.

No. 05-35129.

No. 05-35147.

No. 05-35184.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 7 and 8, 2006.^**

Filed August 29, 2006.

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Damon A. Kirin, Murray Law Firm, New Orleans, LA, for plaintiffs-appellants Allen, Anderson, Clinton, Riley, Holmes and Samuels; Michael J. Miller, Miller & Associates, Alexandria, VA, for plaintiff-appellant Hill.

Stephen B. Murray, Sr., Murray Law Firm, New Orleans, LA, for plaintiffs-appellants Ackel, Arrington, and McGriggs.

David B. Vermont, Herman, Mathis, Casey, Kitchens & Gerel, LLP, Alexandria, VA, for plaintiff-appellant Page.

W. Thomas McCraney, III, McCraney & Montagnet, PLLC, Jackson, MS, for plaintiffs-appellants McDaniel and Alford.

Leila H. Watson, Cory Watson Crowder & DeGaris, P.C., Birmingham, AL, for plaintiff-appellant Sasseen.

Randolph S. Sherman (argued), Kaye Scholer, LLP, New York, NY, and D. Joseph Hurson (signed the briefs), Lane Powell Spears Lubersky LLP, Seattle, WA, for the defendants-appellees.

Terry O. Tottenham, Fulbright & Jaworski LLP, Austin, TX, and Douglas A. Hofmann, Williams, Kastner & Gibbs, PLLC, Seattle, WA, for the defendants-appellees.

D. Joseph Hurson, Lane Powell Spears Lubersky LLP, Seattle, WA, for the defendants-appellees.

Frank A. Wood, Jr., Watkins & Eager PLLC, Jackson, MS, for defendant-appellee Bayer Corporation.

Alan J. Lazarus, Drinker Biddle & Reath LLP, San Francisco, CA, for all defendants-appellees SmithKline Beecham Corporation (dba Glaxosmithkline) and GlaxoSmithKline Consumer Healthcare, L.P.

Brandi J. McKay and Wendy A. Tucker, Sedgwick, Detert, Moran & Arnold LLP, Los Angeles, CA, for defendants-appellees Bristol-Myers Squibb Company.

Appeals from the United States District Court for the Western District of Washington; Barbara Jacobs Rothstein, District Judge, Presiding. D.C. No. MD-01-01407-BJR^*, D.C. No. MD-01-01407-BJR^*, D.C. No. MD-01-01407-BJR^*, D.C. No. MD-01-01407-BJR^*, D.C. No. CV-03-03428-BJR^*, D.C. No. MD-01-01407-BJR^*, D.C. No. CV-03-03428-BJR^*, D.C. No. MD-01-01407-BJR^*, D.C. No. CV-03-03279-BJR, D.C. No. CV-03-01343-BJR, D.C. No. CV-03-02073-BJR, D.C. No. CV-04-00399-BJR^*, D.C. No. CV-01-02061-BJR, D.C. No. CV-03-03226-BJR, D.C. No. CV-01-02059-BJR.

Before DOROTHY W. NELSON, PAMELA ANN RYMER and RAYMOND C. FISHER, Circuit Judges; and EDWARD LEAVY, PAMELA ANN RYMER and RAYMOND C. FISHER, Circuit Judges.¹

RYMER, Circuit Judge.

These appeals are from judgments of dismissal entered in a multidistrict litigation (MDL) proceeding for failure to comply with case management orders. The orders were entered with the agreement of all sides that they were necessary to move hundreds of cases and thousands of plaintiffs toward resolution on the merits. The district court found that many plaintiffs inexcusably failed to do what was required, and dismissed their actions. Some appeal. We must decide whether these dismissals were a clear error of judgment.

The principles that guide a court's discretion to dismiss are well settled, but we have never addressed how they play out in the context of multidistrict litigation. We conclude that while the rules are the same as for ordinary litigation on an ordinary docket — that is, a court determining whether to dismiss an action on account of a plaintiff's noncompliance with a court order must weigh the public's interest in expeditious resolution of litigation; the court's need to manage its docket; the risk of prejudice to the defendants; the public policy favoring the disposition of cases on their merits; and the availability of less drastic sanctions — multidistrict litigation is different because of the large number of cases that must be coordinated, its greater complexity, and the court's statutory charge to promote the just and efficient conduct of the actions. 28 U.S.C. § 1407. As a result, the considerations that inform the exercise of discretion in multidistrict litigation may be somewhat different, and may tip the balance somewhat differently, from ordinary litigation on an ordinary docket.

Recognizing this, we cannot say that the district court abused its discretion in dismissing the cases before us, except for McGriggs and Sasseen, as to which we reverse.²

I

Phenylopropanolamine (PPA) was used in many decongestants and weight-control products until the Food and Drug Administration (FDA) issued a public health advisory on November 6, 2000 warning that this ingredient potentially increased the risk of hemorrhagic stroke. See U.S. Food & Drug Admin., Ctr. for Drug Evaluation & Research, Pub. Health Advisory Subject: Safety of Phenylpropanolamine, Nov. 6, 2000, http://www.fda.gov/cder/drug/infopage/ppa/advisory.htm (last visited Feb. 26, 2006). The advisory stated that the FDA was taking steps to remove PPA from drug products and to request drug companies to discontinue marketing products containing PPA. Id.; see also U.S. Food & Drug Admin., Ctr. for Drug Evaluation & Research, Phenylpropanolamine (PPA) Information Page, http://www.fda.gov/cder/drug/infopage/ppa/default.htm (last visited Feb. 26, 2006).

As a result, lawsuits were filed in state and federal courts throughout the country against pharmaceutical companies by persons claiming injury for ingestion of a product containing PPA. On motion of plaintiffs in one such action in the Eastern District of Louisiana, the Judicial Panel on Multidistrict Litigation found that fourteen actions then pending in several district courts were rooted in complex core questions concerning the safety of PPA and that centralization was necessary to eliminate duplicative discovery, prevent inconsistent pretrial rulings, and conserve the resources of the parties, their counsel, and the judiciary. See In re Phenylpropanolamine (PPA) Prods. Liab. Litig. No. 1407, 173 F.Supp.2d 1377, 1379 (J.P.M.L.2001). Accordingly, on August 28, 2001, the Panel designated the Western District of Washington as the appropriate forum for MDL 1407, and ordered the PPA actions to be transferred and assigned to Hon. Barbara Jacobs Rothstein for pretrial consolidation and coordination.³ Id. at 1380.

MDL 1407 got under way with an initial status conference on November 16, 2001. It addressed the leadership structure for counsel, and issues relating to discovery, experts, use of technology, class actions, and federal-state coordination. The court appointed Lead and Liaison Counsel for plaintiffs and defendants on November 21 and a Plaintiffs' Steering Committee on January 17, 2002. As part of its duties, the Plaintiffs' Steering Committee was to assist all plaintiffs in MDL 1407 by overseeing discovery, communicating with plaintiffs' lawyers, making court appearances, attending status conferences, and preparing motions and responses regarding casewide discovery matters.

At the court's direction, the parties submitted an agreed-upon Case Management Order (CMO) 1, which set out basic procedures and a master framework for discovery. Among other things, this order, filed January 29, 2002, states that "[a] party's failure to either produce a relevant document or identify same as withheld pursuant to a privilege may be viewed by the Court as an infraction of its orders, justifying appropriate sanctions." CMO 1 at ¶ VIII. It also provides that notice by the court to Plaintiffs' Liaison Counsel and Defendants' Liaison Counsel of any matter or ruling relating to all actions would be considered as notice to all MDL 1407 parties, and that service on Liaison Counsel would constitute service on all plaintiffs' and all defendants' counsel, respectively. Id. at ¶ III C, D.

A series of eighteen case management orders followed. They were applicable MDL-wide to all PPA actions transferred to MDL 1407, and governed both MDL-wide and case-specific issues. Case Management Orders were posted on the court's public website for the PPA litigation (http:// www.wawd.uscourts.gov/mdl). The primary orders at issue in these appeals are CMOs 6, 10, and 19, which control pretrial management...