In Re Ortho Pharmaceutical "Lippes Loop" Products Liability Litigation , 447 F. Supp. 1073 ( 1978 )

447 F. Supp. 1073 (1978)

In re ORTHO PHARMACEUTICAL "LIPPES LOOP" PRODUCTS LIABILITY LITIGATION.

No. 336.

Judicial Panel on Multidistrict Litigation.

March 28, 1978.

Before JOHN MINOR WISDOM, Chairman, and EDWARD WEINFELD, EDWIN A. ROBSON, JOSEPH S. LORD, III^[*], STANLEY A. WEIGEL, ANDREW A. CAFFREY^[*], and ROY W. HARPER, Judges of the Panel.

OPINION AND ORDER

PER CURIAM.

This litigation consists of five actions pending in different federal districts—one each in the Middle District of Pennsylvania, the Eastern District of Michigan, the Southern District of Texas, the District of New Mexico, and the District of New Jersey. All these actions involve alleged personal injuries resulting from use of an intrauterine contraceptive device known as the "Lippes Loop." Ortho Pharmaceutical Corp., the manufacturer of the Lippes Loop, is named as a defendant in all five actions. Two of the actions also name plaintiffs' doctors as defendants. Liability is asserted against the defendants on principles of, inter alia, strict liability, breach of express and implied warranties and/or negligence, including inadequate designing, manufacturing and testing of the Lippes Loops and failure to warn adequately of the risks involved in its use.

Pursuant to 28 U.S.C. § 1407(c)(i) and Rule 8, R.P.J.P.M.L., 65 F.R.D. 253, 258-59 (1975), the Panel ordered the parties to show cause why these actions should not be transferred to a single district for coordinated or consolidated pretrial proceedings. All parties that have responded—defendant Ortho, one of the defendant physicians, and plaintiffs in three actions—oppose transfer.

Although we are of the view that these actions involve some common questions of fact, see generally In re A. H. Robins Co., Inc. "Dalkon Shield" IUD Products Liability Litigation, 406 F. Supp. 540, 542 (Jud.Pan. Mult.Lit.1975), we find that transfer under Section 1407 would not at the present time serve the convenience of the parties and witnesses or promote the just and efficient conduct of the litigation. Accordingly, we vacate the show cause order.

Plaintiff and defendant Ortho in the New Mexico action represent that pretrial proceedings have been completed and trial is imminent in that action. In the Michigan action we are advised that a discovery cutoff date of June 1, 1978, and a trial date in August of this year have been set. Because these two actions are so advanced, we believe that they should be excluded from transfer under Section 1407. See In re Celotex Corporation "Technifoam" Products Liability Litigation, 68 F.R.D. 502, 505 (Jud. Pan.Mult.Lit.1975). Since only three actions remain, we are not convinced that the common factual issues are sufficiently complex and the accompanying discovery time consuming enough to justify transfer. See In re Scotch Whiskey Antitrust Litigation, 299 F. Supp. 543, 544 (Jud.Pan.Mult.Lit. 1969).

IT IS THEREFORE ORDERED that the order to show cause regarding the actions listed on the following Schedule A be, and the same hereby is, VACATED, without prejudice to the right of any party to move for transfer under Section 1407 at a later date if additional actions are filed or if any party believes that future circumstances otherwise warrant transfer.

SCHEDULE A

Middle District of Pennsylvania
Richard and Susan Lyman v. Ortho       Civil Action
Pharmaceutical Corp.                   No. 77-18
Eastern District of Michigan
Nancy Owens v. Ortho Pharmaceutical    Civil Action
Corp.                                  No. 77-1536
Southern District of Texas
Rebecca and Luis Bodmer v. Ortho       Civil Action
Pharmaceuticals, etc.                  No. H-77-839
District of New Mexico
Carolyn Noble v. Ortho Pharmaceutical  Civil Action
Co., Inc., et al.                      No. 77-306B
District of New Jersey
Agatha and Raymond Guzzo v.            Civil Action
Ortho Pharmaceutical Corp., et al.     No. 78-162

NOTES

[*] Judges Lord and Caffrey took no part in the decision of this matter.