In re Antibiotic Drugs

• Citation: 320 F. Supp. 586
• Decision Date: 08 December 1970
• Docket Number: No. 10.,10.
• Parties: In re Multidistrict Civil Antitrust Actions Involving ANTIBIOTIC DRUGS.
• Court: Judicial Panel on Multidistrict Litigation

320 F. Supp. 586

In re Multidistrict Civil Antitrust Actions Involving ANTIBIOTIC DRUGS.

No. 10.

Judicial Panel on Multidistrict Litigation.

December 2, 1970.

As Amended December 8, 1970.

Before ALFRED P. MURRAH, Chairman, and JOHN MINOR WISDOM, EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, and

JOSEPH S. LORD, III^*, Judges of the Panel.

OPINION AND ORDER

PER CURIAM.

More than one hundred and fifty related civil antitrust actions have been transferred to the Southern District of New York and assigned to Judge Inzer B. Wyatt for coordinated or consolidated pretrial proceedings under 28 U.S.C. § 1407. In re Antibiotic Drug Litigation, 309 F.Supp. 155 (J.P.M.L.1970), 303 F. Supp. 1056 (J.P.M.L.1969), 301 F.Supp. 1158 (J.P.M.L.1969), 299 F.Supp. 1403 (J.P.M.L.1969), and 295 F.Supp. 1402 (J.P.M.L.1968). All of these actions are to some degree related to the 1958 Federal Trade Commission proceedings and to the 1961 criminal antitrust prosecution which resulted in a conviction later reversed on appeal. United States v. Charles Pfizer & Co., 426 F.2d 32 (2d Cir. 1970).

On September 29, 1970 orders and judgments were filed in sixty-six of these actions approving previously proposed settlements and dismissing them with prejudice. Notices of appeal have been filed in many if not all of these actions. Approximately twenty-eight other actions are in the process of being settled. The remaining fifty-eight cases,¹ many of which seek class action status, are not included in the various settlements either because the plaintiffs rejected the settlement offer of, for example, in the farm cases,² because the settlement offer was not extended to them.

On October 2, 1970 the non-settling plaintiffs' "National Steering Committee" filed a motion with the Panel for an order retransferring all non-settling cases previously transferred to the Southern District of New York under § 1407 and transferring all non-settling actions filed in the Southern District of New York to the District of Minnesota or to another district, preferably in the West or Midwest. Because of the decision herein denying this request, we do not decide whether such a second transfer of the same cases is within the power of the Panel. The eight grounds for the requested relief can be combined into three:

(a) The burden of administering the settling cases and conducting discovery and other pretrial proceedings in the non-settling cases coupled with the normal duties imposed on Judge Wyatt as a judge of the Southern District of New York is "entirely too great a task for any one judge."

(b) Discovery and other pretrial proceedings in the non-settling cases have not proceeded as rapidly as they should have.

(c) Judge Wyatt's approval of the settlement presents "potential barriers to or conflicts with non-settling plaintiffs' requirement for full discovery * * *

Not satisfied with having one judge and one court for the settling cases and another judge and court for the non-settling cases, the States of California, Kansas and North Carolina request that all non-settling government cases³ be assigned to still another judge and presumably another district.

After a complete and careful review of the status of this litigation we have concluded that neither the just and efficient conduct of this massive litigation nor the convenience of the parties and their witnesses would be served by granting the requested relief. We do recognize that this litigation has become too large and too complex to be processed by a single judge and believe that the just and efficient conduct of this litigation would be best served by assigning the non-settling cases to a second judge. With the consent and cooperation of the Chief Judges of the affected courts, Judge Miles Lord of the District of Minnesota has been assigned to the Southern District of New York pursuant to 28 U.S.C. § 292(c) and the non-settling cases will be assigned to him for the completion of coordinated or consolidated pretrial proceedings.⁴

It might be well to add a few words about the factors which have not influenced our decision to assign the non-settling cases to another judge. First and foremost this decision reflects no dissatisfaction with the way that Judge Wyatt has handled this litigation. We doubt that any other single judge could have done so well. Certainly no one could have been more conscientious, diligent and scrupulously fair to all parties.

Secondly, we reject the contention raised by the moving plaintiffs that the rulings and comments made by Judge Wyatt in his opinion approving settlement⁵ raise "barriers to or conflict with litigating plaintiffs' requirements for full discovery * * *." The precise thrust of this argument is not totally clear. If the claim is that a judge who has approved a settlement (which necessarily involves an assessment of the probability of success) is by that reason alone somehow disqualified from processing the non-settling cases, we find it entirely without legal support. Judges are often called upon to make preliminary determinations of the merits of the cause before them, for example in determining motions for restraining orders or preliminary injunctions, and that alone forms no basis for disqualification.

If, on the other hand, the claim is that Judge Wyatt has evidenced a personal bias and prejudice toward the non-settlers, the charge is wholly unsupported by record and actually repudiated by some of the moving plaintiffs.⁶

We do believe that this litigation has simply become too massive and burdensome for any one judge to process efficiently and expeditiously. Contrary to the defendant's assertion it is clear to us that the task of administering the settlement has just begun.⁷ Supervision of discovery and other pretrial proceedings in the non-settling cases will likewise create its own substantial judicial burden.

Turning to the plaintiffs arguments in support of transfer to Minnesota we find that most of their points are in reality directed to the proposition that a second judge is needed to handle the non-settling cases, a contention with which we now agree. The remaining factors allegedly supporting transfer to the District of Minnesota are:

(1) Several farm cases were filed in the District of Minnesota and all plaintiffs in the farm cases have indicated their willingness to have all such cases consolidated for trial in Minnesota.

(2) Only six of the fifty-eight non-settling cases were filed in the Southern District of New York.

(3) It would be more convenient for plaintiff's counsel to travel to Minnesota than to New York City.

(4) The court calendar is more current in Minnesota than in New York.

(5) Two different circuits should be given an opportunity to rule on the validity of the settlement proceedings.

(6) The plaintiffs have hired expert witnesses and established a document depository in Minneapolis.

(7) There is no longer a possibility of conflicting class action decisions.

Actually only the first of these reasons gives any real support to the proposition that the District of Minnesota is a more appropriate district for the completion of pretrial proceedings in the non-settling cases than is the Southern District of New York.⁸ If this were a new group of multidistrict litigation it might be that some of these factors could lead the Panel to select a district other than the Southern District of New York. But where, as here, the litigation has for several years had its focal point in one court it would take a much stronger showing than made here to justify retransfer of these cases to another district.

There are three factors which compel us to leave these cases in the Southern District of New York. First there is an enormous quantity of relevant documents located in New York City. The files in these cases alone fill a special file room in the clerk's office in the Southern District of New York. More important, the defendants have established a document depository in New York City in which more than 24,000 documents have been deposited.⁹ Finally, of course, the files and records in the criminal case are also located in New York City. These factors alone would preclude the transfer of these cases to any other district in the absence of a strong showing that some other district had a greater nexus with this litigation. No other showing has been made here.

Second, when a not dissimilar request was rejected more than a year ago, the Panel observed the difficulties in "discerning the settling and non-settling parties." In re Antibiotic Drug Litigation, 301 F.Supp. 1158, 1160 (J.P.M.L.1969). It is true that the identity and status of the settling and non-settling cases are much clearer now than they were a year ago but they are still subject to some further change. For example, plaintiff's joint reply memorandum filed October 22, 1970 points out that counsel for the plaintiff in the French Hospital Case has asked to have the case removed from the class of miscellaneous non-settling cases and transferred to the group of private hospital and Blue Cross Plan cases which are involved in settlement proceedings. While the number of such transfers might now be small, their problems will be minimized by keeping all cases in the same court while assigned to different judges. Since it now appears that there will be an appeal from the order and judgment approving the settlement, it is possible that all settling plaintiffs could become non-settling plaintiffs. Should that happen, there can be no doubt that the maintenance of both parts of this litigation in the same court would facilitate their assimilation into the litigating group.

A final and most persuasive reason for leaving all actions in the same district relates to the ever present potential for conflicting class action determination. One pending case, Connors et al. v. Pfizer, et al. is referred to by the defendants as an example of a conflicting class action claim and by the National...