In re American Medical Systems, Inc.

844 F. Supp. 2d 1359

Opinion

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.

3 2 1

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.⁴

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.

1

. American Medical Systems, Inc. and related entities (AMS); Boston Scientific Corp. (Boston Scientific); and Ethicon, Inc., Johnson & Johnson, and related entities (Ethicon).

2

. 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.

3

. These actions and any other related actions are potential tag-along actions. See Rules 1.1(h), 7.1, and 7.2.

4

. 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.