In re Antibiotic Drugs

• Decision Date: 21 August 1969
• Docket Number: No. 10.,10.
• Citation: 303 F. Supp. 1056
• Parties: In re Multidistrict Civil Antitrust Litigation Involving ANTIBIOTIC DRUGS. Jack England v. Charles Pfizer & Co., Inc., et al., W.D.Ark., Civil No. ED-69-C-8.
• Court: Judicial Panel on Multidistrict Litigation

303 F. Supp. 1056

In re Multidistrict Civil Antitrust Litigation Involving ANTIBIOTIC DRUGS Jack England v. Charles Pfizer & Co., Inc., et al., W.D.Ark., Civil No. ED-69-C-8.

No. 10.

Judicial Panel on Multidistrict Litigation.

August 21, 1969.

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.

The complaint filed on March 21, 1969 disclosed that the above-captioned case was related to litigation which had previously been transferred to the Southern District of New York for consolidated or coordinated pretrial proceedings under § 1407. A conditional transfer order was entered on May 14, 1969 transferring this case to the Southern District of New York on the basis of prior hearings held by the Panel in connection with this litigation and for the reasons stated in the previous transfer orders and opinions.¹ This order was automatically stayed ten days to permit any party to oppose the transfer if it wished to do so. Counsel for the plaintiff filed a motion to vacate the conditional transfer order and that order was stayed until further order of the Panel. Counsel for the plaintiff also requested a hearing on its objection to the proposed transfer and the matter was set for hearing during the regular July session held in Denver on July 25, 1969.

In his original brief opposing the transfer counsel for the plaintiff contended that the transfer of this case to the Southern District of New York would neither be for the convenience of parties and witnesses nor would it promote the just and efficient conduct of this action. Counsel further asserted that the only parties who would be convenienced by the transfer are the defendants but that the transfer of this case would cause the plaintiff and its attorney additional expense and inconvenience. Of course we realize that each plaintiff would prefer to have all of the proceedings in his suit handled in his district. "But the Panel must weigh the interests of all the plaintiffs and of all the defendants, and must consider multiple litigation as a whole in the light of the purposes of the law." In re Library Editions of Children's Books, 297 F.Supp. 385, 386 (JPML 1968). We also recognize that some extra expense and inconvenience will be involved in counsel's travel to New York for pretrial conferences but we believe that this expense and inconvenience will be more than offset by savings from, and convenience of coordinated and consolidated pretrial proceedings directed by the transferee judge. In re Antibiotic Drugs, 295 F.Supp. 1402, 1404 (JPML 1968).

Counsel is also concerned about the great burden which has been imposed on Judge Wyatt by the assignment of these many cases to him and he apparently fears that the nonsettling cases will be ignored while Judge Wyatt concentrates on administering the settlement program. As we have recently pointed out "none of the parties in the nonsettling cases has requested Judge Wyatt to proceed with pretrial discovery and there is absolutely no indication that Judge Wyatt is unwilling or unable to conduct pretrial proceedings in the nonsettling cases while supervising the administration of the settlement program." In re Antibiotic Drug Litigation, 301 F.Supp. 1158 (JPML July 9, 1969).

In his supplemental brief counsel urges that his case lacks the predicate common questions of fact with the other drug cases which have been filed in, or transferred to the Southern District of New York since this is a case involving drugs used in poultry feed² rather than drugs for human consumption. Perhaps the most important question of fact common to the agricultural cases is whether or not they can rely on the prior criminal convictions of these defendants in the Southern District of New York. In excluding this class of plaintiffs from their settlement offer, the defendants have indicated that they do not believe that agricultural products were included in the criminal actions. The plaintiffs on the other hand hope to rely on the criminal convictions.³ In any event we have already held that the agriculture cases are sufficiently factually related to the human consumption cases to justify their transfer for coordinated or consolidated pretrial proceedings under 28 U.S.C. § 1407. In re Antibiotic Drug Litigation 299 F.Supp. 1403 (JPML April 3, 1969). We are...