In re A. H. Robins Co.
This text of 406 F. Supp. 540 (In re A. H. Robins Co.) is published on Counsel Stack Legal Research, covering United States Judicial Panel on Multidistrict Litigation primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
OPINION AND ORDER
I. Background of the Litigation
The Daikon Shield is an intrauterine contraceptive device that was invented in 1968. It was clinically tested from September 1968 to November 1969, at which time it was commercially introduced to the medical profession by the Daikon Corporation. On June 12, 1970, the A. H. Robins Co., Inc. (Robins), a manufacturer and distributor of pharmaceuticals and other products, acquired all rights to the Daikon Shield. Robins then initiated its own program to test the product and simultaneously began to market it. Between June 12, 1970, and June 28, 1974, approximately 2.2 million Daikon Shields were inserted in women in the United States. On the latter date, Robins voluntarily suspended distribution of the Daikon Shield.
A Daikon Shield could be inserted only by a' physician, who normally obtained the device from a surgical supply house. Each Daikon Shield package contained labeling instructions and materials that described its advantages and disadvantages. It was the physician’s responsibility to explain to the prospective wearer these advantages and disadvantages and, if the decision was made to have the Daikon Shield inserted, to perform certain preliminary fitting procedures outlined in the labeling instructions.
During the years in which the Daikon Shield has been utilized, a number of women have had adverse reactions to the device. Robins informs us that 286 actions involving the Daikon Shield are currently pending, 94 actions in 35 feder[541]*541al district courts and 192 actions in state courts.
The plaintiffs in the federal actions have alleged that the Daikon Shield caused them to sustain various injuries, including perforation of the uterus, infections of the reproductive organs, pregnancy, spontaneous abortion, fetal injuries, cancer of the uterus, maternal blindness and loss of consortium. Although not named in every action, the defendants include Robins; its personnel; other companies and their personnel involved in the manufacture, distribution and testing of the Daikon Shield; and local physicians, clinics and hospitals. Plaintiffs are proceeding on legal theories that differ from action to action. One legal theory is that defendants were negligent in the design, testing, manufacture, inspection or distribution of the Daikon Shield. Another theory is that Robins’ promotion and labeling were misleading and failed to warn the prospective wearer of the dangers of the Daikon Shield.
Discovery has begun in some of the actions and has progressed to various stages of completion. In addition, one action has gone to trial in a Kansas state court and judgment has been entered against Robins.
II. Proceedings Before the Panel ,
Fifty-four actions pending in 22 different districts are before the Panel for Section 1407 consideration as a result of a show cause order issued by the Panel.1 Defendant Robins favors transfer to the Eastern District of Virginia. Plaintiffs in one action support transfer to the Northern District of Illinois or, in the alternative, to a federal district court in Kansas, or Michigan. While a few other plaintiffs favor transfer, most of the other responding parties oppose transfer. Some of these opponents of transfer present arguments in the alternative: plaintiffs in thirteen actions support transfer to the District of Kansas at Wichita; plaintiffs in one action suggest transfer to a federal district court in the Kansas City metropolitan area; plaintiffs in four actions request transfer to the District of Kansas, the Northern District of Illinois or the Southern District of Indiana; and the defendant in one action urges that the claims of plaintiffs against it be separated and remanded to the District of the District of Columbia.
We find that these actions involve common questions of fact and that their transfer to the District of Kansas for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407 will best serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation.
III. Arguments of the Parties
Defendant Robins argues that every action shares common factual issues relating to what it did or did not do, knew or did not know and told or did .not tell with respect to the design, testing, manufacture, inspection, distribution, promotion and labeling of the Daikon Shield. It stresses that discovery is at an early stage in all but a few actions and that transfer of all actions to a single district will eliminate the possibility of duplicative discovery and conflicting pretrial rulings. Moreover, it contends that the net savings to many parties and the courts more than offsets any inconvenience which some of the parties may suffer. Robins argues that the Eastern District of Virginia is the most appropriate transferee district because all of its relevant documents and most of the important witnesses are in Richmond. Thus, it asserts that most of the discovery will occur there. Also, it points out that the docket of the Eastern District of Virginia is current.
[542]*542Most of the other responding parties argue that transfer is inappropriate because the questions of fact in each action are unique and only questions of law predominate. They maintain that the difference in factual issues arises from the presence of different defendants, different injuries, different dates of injury, different warning labels and different legal theories. In addition, some of these parties contend that transfer will not serve the convenience of most of the parties and witnesses, but will serve the convenience of only defendant Robins. Plaintiffs in nine actions oppose transfer because they believe that their actions are well along in discovery and that transfer will unnecessarily delay their resolution.
A number of plaintiffs who oppose transfer present alternative arguments. Should the Panel decide to transfer all actions, plaintiffs in thirteen actions would favor transfer to the District of Kansas at Wichita because it is the geographical center of the nation and the jurisdiction in which the greatest number of federal actions are pending. Plaintiffs in four other actions suggest that the District of Kansas, the Northern District of Illinois or the Southern District of Indiana would be an appropriate transferee district because each of these districts is geographically central,. each is familiar with the nature of the litigation and each has actions pending that are well advanced in discovery.
IV. The Question of Transfer
We are persuaded that all the actions in this litigation belong in a single district for coordinated or coordinated pretrial proceedings under Section 1407. Although we recognize that the actions differ in certain respects, an .analysis of the complaints reveals a commonality of factual issues concerning the design, testing, manufacture, labeling and inspection of the Daikon Shield.
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Cite This Page — Counsel Stack
406 F. Supp. 540, 1975 U.S. Dist. LEXIS 14948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-a-h-robins-co-jpml-1975.