In re AH Robins Co., Inc., 211.

• Decision Date: 08 January 1981
• Docket Number: No. 211.,211.
• Citation: 505 F. Supp. 221
• Parties: In re A. H. ROBINS CO., INC. "Dalkon Shield" IUD Products Liability Litigation. Susan COSTELLO v. A. H. ROBINS CO., INC., D. Nebraska, C.A. No. 80-0-460. Carol SOUCY et al. v. A. H. ROBINS CO., INC., D. New Hampshire, C.A. No. C-80-384-D. Jo Ann COWAN v. A. H. ROBINS CO., INC. et al., N.D. California, C.A. No. C-80-3086-SW Claire C. SHARPE v. A. H. ROBINS CO., INC., et al., N.D. California, C.A. No. C-80-3099-SW. Angela GALLOP v. A. H. ROBINS CO., INC. et al., N.D. California, C.A. No. 80-3138-SW.
• Court: Judicial Panel on Multidistrict Litigation

505 F. Supp. 221

In re A. H. ROBINS CO., INC. "Dalkon Shield" IUD Products Liability Litigation.

Susan COSTELLO v. A. H. ROBINS CO., INC., D. Nebraska, C.A. No. 80-0-460.

Carol SOUCY et al. v. A. H. ROBINS CO., INC., D. New Hampshire, C.A. No. C-80-384-D.

Jo Ann COWAN v. A. H. ROBINS CO., INC. et al., N.D. California, C.A. No. C-80-3086-SW

Claire C. SHARPE v. A. H. ROBINS CO., INC., et al., N.D. California, C.A. No. C-80-3099-SW.

Angela GALLOP v. A. H. ROBINS CO., INC. et al., N.D. California, C.A. No. 80-3138-SW.

No. 211.

Judicial Panel on Multidistrict Litigation.

January 8, 1981.

Before ANDREW A. CAFFREY, Chairman, and ROY W. HARPER, CHARLES R. WEINER, EDWARD S. NORTHROP, ROBERT H. SCHNACKE, FREDERICK A. DAUGHERTY, and SAM C. POINTER, Jr., Judges of the Panel.

OPINION AND ORDER

PER CURIAM.

The Panel has previously transferred, pursuant to 28 U.S.C. § 1407, actions in this litigation to the District of Kansas and, with the consent of that court, assigned them to the Honorable Frank G. Theis for coordinated or consolidated pretrial proceedings.¹ This litigation has grown to include over 971 actions of which about 300 have been settled and dismissed in the transferee district and approximately 441 have been remanded by the Panel to their respective transferor courts following receipt of suggestions of remand from Judge Theis.² The complaints in the actions in the transferee district basically allege that: 1) defendant A. H. Robins Company, Inc., (Robins) promoted and labeled an intrauterine device known as the Dalkon Shield in a manner that was misleading and that failed to warn the prospective wearer of the dangers of the Dalkon Shield; and 2) Robins was negligent in the design, testing, manufacture, inspection and/or distribution of the Dalkon Shield. Additional defendants in the actions in the transferee district include plaintiffs' personal physicians, hospitals and/or clinics, and two physicians who have served as medical consultants to Robins and who at one time held proprietary rights and interests in the Dalkon Shield.

The transferee judge has reported to the Panel that common discovery relating to product liability has been completed in the transferee district. Three months ago the Panel considered the objections of Robins to the transfer of nineteen potential tag-along actions that were pending in the Northern District of California. The Panel denied transfer with respect to those nineteen actions, holding in relevant part as follows:

On the basis of the papers filed, the Panel is persuaded that transfer of these actions would neither serve the convenience of the parties and witnesses nor promote the just and efficient conduct of the litigation. Robins stresses that pretrial proceedings are no longer active in the MDL-211 transferee district and that the primary purpose for transfer of new tag-along actions has been limited to obtaining the benefits and restrictions deriving from the pretrial orders entered by the transferee judge. Robins urges that this purpose can be accomplished, with respect to Northern District of California actions, without transfer under Section 1407 because 1) the court in the Northern District of California has consolidated, pursuant to local rules, all Dalkon Shield actions in that district (including actions already remanded from the transferee district and newly filed actions), and 2) voluntary coordination between the Kansas and California courts, parties and counsel can secure the benefits of Section 1407 transfer while avoiding the frustration of the local consolidation in the Northern District of California which transfer of these nineteen actions would generate. In view of the unanimous agreement by the parties to the nineteen actions that transfer should be denied, and considering the framework for processing Dalkon Shield actions established by the court in the Northern District of California, we agree that transfer of the nineteen actions is inappropriate. Footnote omitted.

In re A. H. Robins Co., Inc. "Dalkon Shield" IUD Products Liability Litigation, Docket No. 211 (J.P.M.L., Oct. 7, 1980) (unpublished order).

The first above-captioned action (Costello) was brought against Robins in July, 1980. Plaintiff is a woman who alleges that she suffered injuries from using the Dalkon Shield which required her to undergo a hysterectomy. Plaintiff seeks recovery under theories of negligence, fraud and malice, failure to warn, and breach of warranties.

The second above-captioned action (Soucy) was brought against Robins in August, 1980. Plaintiffs are a husband and wife who allege that the wife suffered permanent injuries as a result of using the Dalkon Shield. Plaintiffs seek recovery under theories of negligence, gross negligence, strict liability, and breach of express and implied warranties.

The remaining three above-captioned actions (the Northern District of California actions) also incorporate allegations against Robins based on theories of negligence, breach of warranties, and/or strict liability in tort.

Because Costello, Soucy and the Northern District of California actions appeared to share questions of fact with the actions in this docket previously transferred to the District of Kansas, the Panel, pursuant to Rule 9, R.P.J.P.M.L., 78 F.R.D. 561, 567-68 (1978), entered orders conditionally transferring the actions to that district for inclusion in the centralized pretrial proceedings occurring there. Plaintiffs in Costello and Soucy oppose transfer of their respective actions. Robins favors transfer of Costell...