Full opinion text
TRANSFER ORDER JOHN G. HEYBURN II, Chairman. Before the Panel: Before the Panel are three dockets involving allegations of defects in various models of pelvic surgical mesh products manufactured by three groups of manufacturers. Plaintiffs in almost twenty actions before the Panel have moved pursuant to 28 U.S.C. § 1407, to centralize all MDL No. 2325, MDL No. 2326, and MDL No. 2327 actions in the Southern District of West Virginia. In MDL No. 2325, defendant AMS has moved to centralize the MDL No. 2325 actions in the District of Minnesota or, alternatively, if the Panel deems centralization of three MDLs to be appropriate, suggests the Southern District of West Virginia as transferee district. This litigation currently consists of approximately 150 actions spread across the country, as listed on the attached schedules. The Panel has been notified of numerous additional potentially related actions. Plaintiffs in over 100 actions and potentially related actions support centralization of all actions in the Southern District of West Virginia. Responding plaintiffs, alternatively or in the first instance, also have suggested other transferee districts for one or more of these MDLs, including the Eastern District of Louisiana, the Western District of Louisiana, the Eastern District of Pennsylvania, and the Northern District of California. Plaintiff in the District of New Jersey Bienstock action opposes centralization, and plaintiffs in the District of Nevada Erwin action request the Panel defer transferring their case until their motion for remand to state court is decided, but concede that if remand is denied, transfer is appropriate. Defendant Boston Scientific suggests centralization of the MDL No. 2326 actions in the Western District of Oklahoma or, if the Panel deems centralization of three MDLs in one district to be appropriate, supports the Southern District of West Virginia as transferee district. Defendant Ethicon suggests centralization of only the MDL No. 2327 actions in the District of New Jersey or, alternatively, the Northern District of Georgia. Almost all parties agree that centralization of each of these separate MDLs is appropriate. The actions in each MDL share factual issues arising from allegations of defects in pelvic surgical mesh products manufactured by AMS, Boston Scientific, and Ethicon, respectively. Centralization therefore will eliminate duplicative discovery; prevent inconsistent pretrial rulings; and conserve the resources of the parties, their counsel and the judiciary. Moreover, centralization of each litigation is consistent with our decisions in In re Mentor Corp. ObTape Transobturator Sling Products Liability Litigation, MDL No. 2004, 588 F.Supp.2d 1374 (J.P.M.L.2008); and In re Avaulta Pelvic Support Systems Products Liability Litigation, MDL No. 2187, 746 F.Supp.2d 1362 (J.P.M.L.2010). The central dispute among the parties is where each MDL should proceed. Most plaintiffs argue in favor of three MDLs proceeding in one district; namely, the Southern District of West Virginia. Defendants prefer centralization of each litigation in separate districts. We are persuaded that the Southern District of West Virginia is the most appropriate transferee forum for each of these MDLs. Chief Judge Joseph R. Goodwin of that district is currently presiding over MDL No. 2187, which involves claims of defects in similar pelvic surgical mesh products, and is uniquely situated to preside over the similar claims in these three MDLs. The pelvic surgical mesh products at issue in MDL Nos. 2325, 2326, and 2327 are used to treat similar conditions as those at issue in MDL No. 2187, and they have allegedly resulted in similar injuries. Almost all responding plaintiffs support centralization in this district, and defendants AMS and Boston Scientific concede that the Southern District of West Virginia is an appropriate transferee district. Finally, a number of these actions are brought by plaintiffs who were implanted with multiple products made by multiple manufacturers. Centralization of the three MDLs in one court will allow for coordination of any overlapping issues of fact in such multi-product, multi-defendant actions. We will not delay transfer of the District of Nevada Erwin action. Plaintiffs can present their motion for remand to state court to the transferee court. See, e.g., In re Ivy, 901 F.2d 7 (2nd Cir.1990); In re Prudential Insurance Company of America Sales Practices Litigation, 170 F.Supp.2d 1346, 1347-48 (J.P.M.L.2001). We similarly decline to exclude the District of New Jersey Bienstock action from MDL No. 2327, as it shares questions of fact with the actions in that MDL and does not appear to be so far advanced that it would not benefit from centralized proceedings. We decline to include three of the actions listed on the MDL No. 2325 motion in centralized proceedings, as listed on Schedule B. After the motions to centralize were filed, plaintiffs in the District of Minnesota Flight action amended their complaint to bring claims only against an unrelated manufacturer. AMS is no longer named in this action and, therefore, it appears that it does not belong in MDL No. 2325. Additionally, the Southern District of West Virginia Culbertson action that was included in the initial motion for centralization in MDL No. 2325 is currently a part of MDL No. 2187, as it involves claims against C.R. Bard, Inc. (Bard). In transferring the claims against Bard in October 2011, the Panel separated and remanded claims against AMS to the District of South Carolina. The claims involving AMS, therefore, are still pending in the District of South Carolina, not in the Southern District of West Virginia. We have determined, however, that it is beneficial in this litigation for a particular action involving claims against multiple manufacturers to remain whole and proceed as one action. Therefore, the Panel will place the remaining claims in the District of South Carolina Culbertson action on a conditional transfer order for MDL No. 2187 in due course. Finally, the Western District of Louisiana Waldroup action, which names Boston Scientific as its first defendant, is included in the MDL No. 2325 motion for centralization but not on the MDL No. 2326 motion for centralization. As we have determined to transfer such multi-product, multi-defendant actions to the MDL involving the first named defendant, the Panel will not transfer this action with the present order, but will instead place the action on a conditional transfer order in MDL No. 2326. On the basis of the papers filed and hearing session held we find that the actions contained in each MDL involve common questions of fact, and that centralization of each of MDL No. 2325, 2326 and 2327 in the Southern District of West Virginia will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. IT IS THEREFORE ORDERED that the motions for centralization of MDL No. 2325, MDL No. 2326, and MDL No. 2327 in the Southern District of West Virginia are granted. IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1407, the actions listed on Schedule A, encompassing MDL No. 2325 actions involving AMS, are transferred to the Southern District of West Virginia and, with the consent of that court, assigned to the Honorable Joseph R. Goodwin for coordinated or consolidated pretrial proceedings. IT IS FURTHER ORDERED that transfer under Section 1407 of the three actions listed on Schedule B is denied. IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1407, the actions listed on Schedule C, encompassing MDL No. 2826 actions involving Boston Scientific, are transferred to the Southern District of West Virginia and, with the consent of that court, assigned to the Honorable Joseph R. Goodwin for coordinated or consolidated pretrial proceedings. IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1407, the actions listed on Schedule D, encompassing MDL No. 2327 actions involving Ethicon, are transferred to the Southern District of West Virginia and, with the consent of that court, assigned to the Honorable Joseph R. Goodwin for coordinated or consolidated pretrial proceedings. SCHEDULE A MDL No. 2325 — IN RE: AMERICAN MEDICAL SYSTEMS, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION Northern District of Alabama Shannon Farr, et al. v. American Medical Systems, Inc., et al., C.A. No. 5:11-02767 District of Arizona Kaylin Oldfather v. American Medical Systems, Inc., C.A. No. 2:11-02022 Central District of California Jill Engledow v. Mentor Corporation, et al, C.A. No. 2:11-07391 Susan Galbreath, et al. v. Steve Seung Yü Koh, M.D., et al., C.A. No. 2:11-08387 Northern District of California Ellen Ambroff, et al. v. American Medical Systems, Inc., C.A. No. 3:08-04289 Shellie Hill, et al. v. American Medical Systems, Inc., C.A. No. 3:11-04610 Judy Anna Winegardner, et al. v. American Medical Systems, Inc., C.A. No. 3:11-04611 Iona Metcalf, et al. v. American Medical Systems, Inc., C.A. No. 3:11-04612 Jenelle Hoover, et al. v. American Medical Systems, Inc., C.A. No. 3:11-04614 Kathleen Nichols-Gould, et al. v. American Medical Systems, Inc., C.A. No. 3:11-04616 Vicki Gray v. American Medical Systems, Inc., C.A. No. 3:11-04668 Kathleen Schmidt, et al. v. American Medical Systems, Inc., C.A. No. 3:11— 04670 Francine Baia, et al. v. American Medical Systems, Inc., C.A. No. 3:11-04671 Summer Abrego v. American Medical Systems, Inc., C.A. No. 3:11-04672 Carole Chenoweth v. American Medical Systems, Inc., C.A. No. 3:11-05145 -Patricia Hendricksen v. American Medical Systems, Inc., C.A. No. 3:11-05146 Sherry Maloney v. American Medical Systems, Inc., C.A. No. 3:11-05312 Lisa Roddy, et al. v. American Medical Systems, Inc., C.A. No. 4:11-03970 Michelle Arsenault v. American Medical Systems, Inc., C.A. No. 4:11-04343 Susan Petkovich, et al. v. American Medical Systems, Inc., C.A. No. 4:11— 04613 Letitia Greene-Newton, et al. v. American Medical Systems, Inc. C.A. No. 4:11-04615 Veda Lester v. American Medical Systems, Inc., C.A. No. 4:11-04669 April Stevens v. American Medical Systems, Inc., C.A. No. 4:11-05143 Joette Boone, et al. v. American Medical Systems, Inc., et al., C.A. No. 4:11-05144 Cindy Wyatt, et al. v. American Medical Systems, Inc., C.A. No. 4:11-05147 Jan Glisson, et al. v. American Medical Systems, Inc., C.A. No. 5:11-04945 Ramona Foley, et al. v. American Medical Systems, Inc., C.A. No. 5:11-05014 District of Delaware Cathy Hoppe v. American Medical Systems, Inc., et al, C.A. No. 1:11-01012 District of District of Columbia Deborah Bedford v. American Medical Systems, Inc., C.A. No. 1:11-01472 Northern District of Florida Carolyn Finlay v. American Medical Systems, Inc., C.A. No. 3:11-00507 Northern District of Georgia Kimberly Williams v. American Medical Systems, Inc., et al., C.A. No. 1:11— 02782 Cynthia Daniel, et al. v. American Medical Systems, Inc., C.A. No. 1:11-03261 Holly Johnson, et al. v. American Medical Systems, Inc., C.A. No. 1:11-03925 Patricia Ledford, et al. v. American Medical Systems, Inc., C.A. No. 1:11— 03926 Lynn Pope, et al. v. American Medical Systems, Inc., C.A. No. 1:11-03928 Laurie Schultz v. American Medical Systems, Inc., C.A. No. 1:11-03929 Sonya Waren, et al. v. American Medical Systems, Inc., C.A. No. 2:11-00310 Tammy Powell, et al. v. American Medical Systems, Inc., C.A. No. 3:11-00159 Maritza Reneau, et al. v. American Medical Systems, Inc., C.A. No. 3:11— 00180 Western District of Louisiana Patsy J. Brandao, et al. v. American Medical Systems Holdings Inc., et al., C.A. No. 5:11-01767 JoAnn B. Pickard v. American Medical Systems Inc., et al., C.A. No. 5:11-01845 District of Maryland Robin Dahl v. American Medical Systems, Inc., C.A. No. 1:11-02925 District of Minnesota Amy Wells, et al. v. American Medical Systems, Inc., C.A. No. 0:11-02141 Bobbie Feam, et al. v. American Medical Systems, Inc., C.A. No. 0:11-02502 JoAnn Hill v. American Medical Systems, Inc., C.A. No. 0:11-02589 District of Nevada Carol S. Austirtr-Fink v. American Medical Systems, Inc., C.A. No. 2:09-01981 Connie Erwin, et al. v. American Medical Systems, Inc., et al., C.A. No. 2:11-01475 Debra Grumbles v. American Medical Systems, Inc., C.A. No. 2:11-01582 Middle District of North Carolina Tamara Tucker, et al. v. American Medical Systems, Inc., et al, C.A. No. 1:11-00974 Western District of Oklahoma Lisa Berry v. American Medical Systems, Inc., et al., C.A. No. 5:11-00748 Tina Gordon v. American Medical Systems Holdings Inc., et al, C.A. No. 5:11-01259 Jennifer Gaines, et al. v. American Medical Systems, Inc., C.A. No. 5:11— 01299 Eastern District of Pennsylvania Paulette Lewis v. American Medical Systems, Inc., C.A. No. 2:11-05445 Kathleen Craig, et al. v. American Medical Systems, Inc., C.A. No. 2:11-05462 Linda Osman, et al. v. American Medical Systems, Inc., C.A. No. 2:11-05465 Helga White v. American Medical Systems, Inc., et al, C.A. No. 2:11-05520 Jennifer Heiser v. Endo Pharmaceuticals, C.A. No. 2:11-06651 Maggie McEwan, et al. v. Endo Pharmaceuticals, C.A. No. 2:11-06652 Kathleen Kenton, et al. v. Endo Pharmaceuticals, C.A. No. 2:11-06653 Bemella Meche v. Endo Pharmaceuticals, C.A. No. 2:11-06654 Holli Allen, et al. v. Endo Pharmaceuticals, C.A. No. 2:11-06655 Mary Howard, et al. v. Endo Pharmaceuticals, C.A. No. 2:11-06656 Joann Cosma, et al. v. Endo Pharmaceuticals, C.A. No. 2:11-06657 Evelyn Bonilla, et al. v. Endo Pharmaceuticals, C.A. No. 2:11-06658 Jane Mixon, et al. v. Endo Pharmaceuticals, C.A. No. 2:11-06659 Helen Reaves v. Endo Pharmaceuticals, C.A. No. 2:11-06660 Mary Smith, et al. v. Endo Pharmaceuticals, C.A. No. 2:11-06661 Joann Fosbenner, et al. v. Endo Pharmaceuticals, C.A. No. 2:11-06662 Marie Quigley, et al. v. Endo Pharmaceuticals, C.A. No. 2:11-06663 April Perdue, et al. v. Endo Pharmaceuticals, C.A. No. 2:11-06664 Valinda Aumiller v. Endo Pharmaceuticals, et al, C.A. No. 2:11-06804 Gina Kolar v. Endo Pharmaceuticals, et al., C.A. No. 2:11-06805 Candace Lyons v. Endo Pharmaceuticals, et al., C.A. No. 2:11-06806 Gearal Moneypenny, et al. v. Endo Pharmaceuticals, et al., C.A. No. 2:11-06807 Susan Cox v. Endo Pharmaceuticals, et al, C.A. No. 2:11-06808 Katherine Simmons v. Endo Pharmaceuticals, et al, C.A. No. 2:11-06809 Kaci Mitchell v. Endo Pharmaceuticals, C.A. No. 2:11-07131 Joycebeth Stoutamire v. Endo Pharmaceuticals, C.A. No. 2:11-07134 Gidget Crossett v. Endo Pharmaceuticals, C.A. No. 2:11-07135 Western District of Texas Sandra Colon v. American Medical Systems, Inc., C.A. No. 1:11-00872 District of Utah Jeanne Kramer, et al. v. American Medical Systems, Inc., C.A. No. 2:11-01004 Western District of Washington Diane Horton, et al. v. American Medical Systems, Inc., et al, C.A. No. 3:11-05780 Southern District of West Virginia Jessica Swaim, et al. v. American Medical Systems, Inc., et al, C.A. No. 2:11-00827 Virginia Johnson, et al. v. American Medical Systems, Inc., C.A. No. 2:11-00933 SCHEDULE B ACTIONS FOR WHICH TRANSFER IS DENIED Western District of Louisiana Bette G. Waldroup, et al. v. Boston Scientific Corp., et al, C.A. No. 3:11-01854 District of Minnesota Marsha Flight, et al. v. American Medical Systems, Inc., et al., C.A. No. 0:11-01761 Southern District of West Virginia Fronde Culbertson, et al. v. C.R. Bard, Inc., et al, C.A. No. 2:11-00796 SCHEDULE C MDL No. 2326 — IN RE: BOSTON SCIENTIFIC CORP. PELVIC REPAIR SYSTEMS PRODUCTS LIABILITY LITIGATION Middle District of Alabama Kimberly Barber, et al. v. Boston Scientific Corp., C.A. No. 2:11-00952 Northern District of Alabama Anna Buchanan, et al. v. Boston Scientific Corp., C.A. No. 2:11-03946 Mary Nalley, et al. v. Boston Scientific Corp., C.A. No. 4:11-03521 Ava Kirkpatrick v. Boston Scientific Corp., C.A. No. 5:11-03759 District of Arizona Catherine A. Avent v. Boston Scientific Corp., C.A. No. 2:11-02280 Central District of California Sherry Herkal v. Boston Scientific Corp., et al, C.A. No. 2:11-08678 Northern District of California Michelle Spence, et al. v. Boston Scientific Corp., C.A. No. 3:11-04961 Southern District of Florida Marta Iglesias, et al. v. Boston Scientific Corp., C.A. No. 1:11-24263 Northern District of Georgia Tami Goodson v. Boston Scientific Corp., C.A. No. 1:11-03023 Geraldine Bailey, et al. v. Boston Scientific Corp., C.A. No. 1:11-03981 Nicole Preston, et al. v. Boston Scientific Corp., C.A. No. 1:11-03982 Western District of Louisiana Minnie V. Mann v. Boston Scientific Corp., C.A. No. 3:11-01785 Anita M. Jolly, et al. v. Boston Scientific Corp., C.A. No. 3:11-01871 Amanda Powell, et al. v. Boston Scientific Corp., C.A. No. 3:11-01876 Nancy K. Williams v. Boston Scientific Corp., et al, C.A. No. 3:11-01938 Karen S. Weller v. Boston Scientific Corp., C.A. No. 5:11-01696 ■Western District of North Carolina Patsy Meadows, et al. v. Boston Scientific Corp., C.A. No. 5:11-00143 Western District of Oklahoma Terre Hammonds v. Boston Scientific, Inc., C.A. No. 5:11-00663 District of South Carolina Donna Beatty, et al. v. Boston Scientific Corp., C.A. No. 2:11-03147 Lisa Daniels v. Boston Scientific Corp., C.A. No. 3:11-02849 Middle District of Tennessee Tammy L. Kennamore v. Boston Scientific Corp., C.A. No. 3:11-01064 Western District of Texas Leona Webb, et al. v. Boston Scientific Corp., C.A. No. 1:11-00873 Southern District of West Virginia Brenda Moyer, et al. v. Boston Scientific Corp., C.A. No. 2:11-00810 SCHEDULE D MDL No. 2327 — IN RE: ETHICON, INC., PELVIC REPAIR SYSTEMS PRODUCTS LIABILITY LITIGATION Northern District of Florida Barbara Dykes v. Ethicon, Inc., et al., C.A. No. 3:11-00564 Southern District of Florida Susan Thaman, et al. v. Ethicon, Inc., C.A. No. 2:11-14390 Middle District of Georgia Amy Holland, et al. v. Johnson & Johnson, et al, C.A. No. 3:11-00135 Came Smith v. Ethicon, Inc., et al., C.A. No. 5:11-00467 Northern District of Georgia Iris Geraldine Carr, et al. v. Ethicon, Inc., et al, C.A. No. 1:11-02217 Cathy Warlick, et al. v. Ethicon, Inc., et al, C.A. No. 1:11-02758 Doris Jackson v. Johnson & Johnson, et al, C.A. No. 1:11-03903 Guillan Garnett, et al. v. Johnson & Johnson, et al, C.A. No. 1:11-03904 Kathy Barton v. Gynecare, Inc., et al, C.A. No. 3:11-00176 Southern District of Georgia Mary Luellen Kilday, et al. v. Johnson & Johnson, et al, C.A. No. 4:11-00286 Janice Swaney v. Johnson & Johnson, et al, C.A. No. 4:11-00287 Mary F. Cone v. Ethicon, Inc., et al., C.A. No. 5:11-00110 District of Kansas Joy Essman, et al. v. Ethicon, Inc., et al, C.A. No. 2:11-02595 Eastern District of Louisiana Linda B. Ryan v. Johnson & Johnson, Inc., et al, C.A. No. 2:11-02751 Western District of Louisiana Teri Key Shively, et al. v. Johnson & Johnson, et al, C.A. No. 3:11-00362 Teme S. Gregory, et al. v. Johnson & Johnson Inc., et al, C.A. No. 3:11-01768 Tina Morrow, et al. v. Johnson & Johnson Inc., et al, C.A. No. 3:11-01866 Susan C. Hayes, et al. v. Johnson & Johnson Inc., et al, C.A. No. 3:11-01897 Charlene Logan Taylor v. Johnson & Johnson Inc., et al, C.A. No. 5:11-01894 Shirley Carroll, et al. v. Johnson & Johnson Inc., et al, C.A. No. 5:11-01937 Southern District of Mississippi Polly Middlebrook v. Ethicon, Inc., C.A. No. 4:11-00169 Western District of Missouri Sandra L. Woolfe v. Ethicon, Inc., et al, C.A. No. 4:11-01040 District of New Jersey Caryn Bienstock v. Ethicon, Inc., et al, C.A. No. 3:11-04080 Northern District of New York Kathleen Wolfe v. Ethicon, Inc., C.A. No. 6:11-00180 Northern District of Ohio Judy White, et al. v. Ethicon, Inc., et al, C.A. No. 1:11-01562 Joann Heather, et al. v. Ethicon, Inc., et al, C.A. No. 5:11-02012 Southern District of Ohio Sharon Boggs, et al. v. Ethicon, Inc., C.A. No. 1:11-00516 Eastern District of Pennsylvania Joanna Jacobson v. Ethicon, Inc., C.A. No. 2:11-05591 Rose Gomez, et al. v. Ethicon, Inc., C.A. No. 2:11-05625 Amanda Deleon, et al. v. Ethicon, Inc., C.A. No. 5:11-05538 Western District of Pennsylvania Deborah A. Smith v. Ethicon, Inc., C.A. No. 1:11-00279 District of South Carolina Charlotte Hargrove v. Johnson & Johnson, et al, C.A. No. 2:11-03242 Eastern District of Tennessee Helen Brown, et al. v. Johnson & Johnson, et al, C.A. No. 3:11-00483 District of Utah Carol Dimock v. Ethicon, Inc., et al, C.A. No. 2:11-01048 Western District of Washington Dawna Hankins v. Ethicon, Inc., C.A. No. 2:11-01635 Southern District of West Virginia Wilma Johnson v. Ethicon, Inc., C.A. No. 2:11-00809 Eastern District of Wisconsin Deborah Lozano, et al. v. Ethicon, Inc., C.A. No. 2:11-00836 Judge W. Royal Furgeson, Jr. took no part in the decision of this matter. . American Medical Systems, Inc. and related entities (AMS); Boston Scientific Corp. (Boston Scientific); and Ethicon, Inc., Johnson & Johnson, and related entities (Ethicon). . Two additional actions were included in the MDL No. 2325 motion, and a third action was included in the motions to centralize MDL Nos. 2325 and 2327, but they have each been remanded to state court or voluntarily dismissed. An additional unrelated action inadvertently was included in the MDL No. 2327 Section 1407 motion, but movants have withdrawn that action from consideration on the motion. . These actions and any other related actions are potential tag-along actions. See Rules 1.1(h), 7.1, and 7.2. . The Panel has determined in consultation with the transferee judge to transfer actions involving multiple manufacturer defendants to the MDL involving the first named defendant in that action.