IN RE SILICONE GEL BREAST IMPLANTS PROD. L. LIT., 926.

• Decision Date: 25 June 1992
• Docket Number: No. 926.,926.
• Citation: 793 F. Supp. 1098
• Parties: In re SILICONE GEL BREAST IMPLANTS PRODUCTS LIABILITY LITIGATION.
• Court: Judicial Panel on Multidistrict Litigation

793 F. Supp. 1098

In re SILICONE GEL BREAST IMPLANTS PRODUCTS LIABILITY LITIGATION.

No. 926.

Judicial Panel on Multidistrict Litigation.

June 25, 1992.

Before JOHN F. NANGLE, Chairman, S. HUGH DILLIN, MILTON POLLACK,^* LOUIS H. POLLAK, ROBERT R. MERHIGE, Jr., and WILLIAM B. ENRIGHT, Judges of the Panel.

OPINION AND ORDER

The record before us suggests that more than a million women have received silicone gel breast implants. Since the Food and Drug Administration held highly publicized hearings a few months ago about the safety of this product, a rush to the courthouse has ensued, although some litigation concerning the product has periodically been filed in the federal courts in the last several years.

This litigation presently consists of the 78 actions listed on the following Schedule A¹ and pending in 33 federal districts as follows:

                  Middle District of Florida                     11 actions
                  Northern District of California                 8 actions
                  District of Colorado                            7 actions
                  Southern District of New York                   7 actions
                  Southern District of Ohio                       4 actions
                  Western District of Oklahoma                    4 actions
                  Eastern District of New York                    3 actions
                  Central District of California                  2 actions
                  Northern District of Florida                    2 actions
                  District of Maryland                            2 actions
                  Eastern District of Michigan                    2 actions
                  District of Minnesota                           2 actions
                  District of New Mexico                          2 actions
                  District of South Carolina                      2 actions
                  Western District of Washington                  2 actions
                  Southern District of Florida                    1 action
                  Middle District of Georgia                      1 action
                  Northern District of Georgia                    1 action
                  District of Hawaii                              1 action
                  Northern District of Illinois                   1 action
                  Southern District of Indiana                    1 action
                  District of Kansas                              1 action
                  District of Montana                             1 action
                  District of New Jersey                          1 action
                  District of Oregon                              1 action
                  Eastern District of Pennsylvania                1 action
                  Western District of Pennsylvania                1 action
                  Western District of Texas                       1 action
                  Southern District of Texas                      1 action
                  District of Utah                                1 action
                  Eastern District of Virginia                    1 action
                  Southern District of West Virginia              1 action
                  Eastern District of Wisconsin                   1 action
                

Before the Panel are four separate motions pursuant to 28 U.S.C. § 1407: 1) motion of plaintiffs in three Northern District of California actions to centralize all actions in the Northern District of California or any other appropriate transferee forum (these plaintiffs now favor centralization in the Southern District of Ohio); 2) motion of plaintiffs in one Northern District of California action to centralize all actions in that district; 3) motion of plaintiffs in seven actions to centralize all actions in either the Northern District of California or the District of Kansas; and 4) motion of plaintiffs in the Eastern District of Virginia action (Schiavone) to centralize in that district the medical monitoring claims that are presented in seven purported class actions.²

The overwhelming majority of the more than 200 responses received by the Panel supports transfer. The major issue presented in the responses is selection of the transferee forum, with two large groups of parties aligned in favor of opposing views. The first large group of parties favors selection of either the Northern District of California (Judge Thelton E. Henderson or Judge Marilyn H. Patel) or the District of Kansas (Judge Patrick F. Kelly). This group includes 1) plaintiffs in at least 65 of the 78 actions before the Panel; 2) plaintiffs in at least 69 potential tag-along actions; and 3) approximately 250 attorneys who are purportedly investigating claims of more than 2,000 potential plaintiffs. The second large group of parties favors selection of the Southern District of Ohio (Judge Carl B. Rubin). This group includes 1) plaintiffs in nine of the 78 actions before the Panel; 2) plaintiffs in at least nine potential tag-along actions; 3) approximately 75 law firms that purport to represent approximately 4,000 actual and potential plaintiffs; and 4) sixteen defendants, including major silicone gel breast implant manufacturers Dow Corning Corporation (Dow Corning), Baxter Healthcare Corporation, McGhan Medical Corporation (McGhan), Bristol-Meyers Squibb Company and Mentor Corporation (Mentor).

Miscellaneous responses received by the Panel include i) opposition of plaintiff in one Colorado action to transfer of her action (Reid), ii) opposition of defendant General Electric Company to transfer of the four actions in which it is a party, iii) opposition of plaintiffs in four potential tag-along actions to transfer of their actions, and iv) support of plaintiffs in one action for the motion of the Schiavone plaintiffs.

On the basis of the papers filed and the hearing held, the Panel finds that the actions in this litigation involve common questions of fact and that centralization under Section 1407 in the Northern District of Alabama before Chief Judge Sam C. Pointer, Jr., will best serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. The actions present complex common questions of fact, as nearly all responding parties have acknowledged, on the issue of liability for allegedly defective silicone gel breast implants. Centralization under Section 1407 is thus necessary in order to avoid duplication of discovery, prevent inconsistent pretrial rulings, and conserve the resources of the parties, their counsel and the judiciary.

We are not persuaded by various parties' requests for exclusion of certain actions or claims or for creation of a separate multidistrict litigation to handle medical monitoring claims. We point out that transfer under Section 1407 has the salutary effect of placing all actions in this docket before a single judge who can formulate a pretrial program that: 1) allows discovery with respect to any non-common issues to proceed concurrently with discovery on common issues, In re Multi-Piece Rim Products Liability Litigation, 464 F.Supp. 969, 974 (J.P.M.L. 1979); and 2) ensures that pretrial proceedings will be conducted in a manner leading to the just and expeditious resolution of all actions to the overall benefit of the parties. It may be, on further refinement of the issues and close scrutiny by the transferee judge, that some claims or actions can be remanded in advance of the other actions in the transferee district. But we are unwilling, on the basis of the record before us, to make such a determination at this time. Should the transferee judge deem remand of any claims or actions appropriate, procedures are available whereby this may be accomplished with a minimum of delay. See Rule 14, R.P.J.P.M.L., 120 F.R.D. 251, 259-61 (1988).

Selection of the transferee court and judge for this litigation has been a challenging task. The parties' arguments in their briefs and at the Panel hearing in this matter have focused primarily on the relative merits of the suggested California and Ohio forums. Proponents of the California forum stress that i) both Judge Henderson and Judge Patel have tried breast implant actions and are thus very familiar with the issues raised in this docket, ii) several implant manufacturers, including McGhan and Mentor, have their principal places of business in California, and iii) California is presumptively the state with the largest number of actual and potential claimants in the breast implant litigation. Meanwhile, proponents of the Ohio forum emphasize Judge Rubin's familiarity with the litigation, gained by presiding over the consolidated breast implant action (Dante) in his district since January 1992. During that time, Judge Rubin has conditionally certified a nationwide, opt-out class of breast implant recipients; established a document depository; appointed a Plaintiffs' Lead Counsel Committee consisting of seven members; scheduled trial on common issues for June 1993; and initiated the dissemination of notice to class members.

We observe that either the Northern District of California or the Southern District of Ohio could be an appropriate forum for this docket and certainly the judges referred to are experienced and well-qualified to handle this litigation. We are troubled, however, by the volume and tone of the negative arguments with which opposing counsel have sought to denigrate each other's forum choices, litigation strategies and underlying motives. A brief recitation of a few of these arguments sufficiently conveys their flavor. For example, various parties argue that 1) parties in the Ohio forum have engendered a flurry of pretrial activity in an effort to dictate our decision on selection of the transferee court; 2) the class in the Southern District of Ohio was certified in a precipitous fashion, without according adequate notice or opportunity to be heard to interested parties nationwide; 3) defendants oppose the California forum only because the two trials there resulted in substantial verdicts against one of them; and 4) the plaintiffs who favor the California forum are forum shopping for a judge who has tried a breast implant action in which plaintiffs prevailed.

Essentially, these arguments are fueled by an acrimonious dispute among counsel, relating to control of the litigation as well as to how it should proceed (class versus individual...