In re Horizon Organic Milk

844 F. Supp. 2d 1380, 2012 WL 432621, 2012 U.S. Dist. LEXIS 16409

• Court: United States Judicial Panel on Multidistrict Litigation
• Decided: February 9, 2012
• Docket: MDL No. 2324
• Status: Published

Opinion

TRANSFER ORDER

JOHN G. HEYBURN II, Chairman.

Before the Panel:

* Pursuant to 28 U.S.C. § 1407, defendants Dean Foods Co. and WhiteWave Foods Co. seek centralization of the actions listed on Schedule A in the Southern District of California. The plaintiffs’ motion encompasses five actions pending in five districts.

No party opposes centralization. Plaintiffs in the Western District of Arkansas, Middle District of Florida and Southern District of Florida actions support centralization in the Southern District of Florida. Plaintiffs in the Southern District of California and the Northern District of Illinois actions support centralization in the Northern District of Illinois.

On the basis of the papers filed and hearing session held, we find that these actions involve common questions of fact, and that centralization under Section 1407 in the Southern District of Florida will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. These actions share factual questions arising out of allegations that defendants’ representations regarding certain milk products fortified with DHA Omega-3 ¹ under the brand name “Horizon Organic Milk”² were misleading insofar as they claimed that the milk supports “brain health” in children and adults. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings, including with respect to class certification; and conserve the resources of the parties, their counsel, and the judiciary.

Any of the three proposed transferee districts would be a suitable transferee district for this product that was marketed nationwide. All actions were filed within a short time period, and none are particularly advanced. After considering all factors, the Panel has decided to order centralization in the Southern District of Florida. Several plaintiffs support centralization in the Southern District of Florida, and this district is presiding over fewer MDL dockets than other proposed districts.

IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, the actions listed on Schedule A and pending outside the Southern District of Florida are transferred to the Southern District of Florida and, with the consent of that court, assigned to the Honorable Joan A. Lenard for centralized pretrial proceedings with the action listed on Schedule A and pending in that district.

SCHEDULE A

MDL No. 2324 — IN RE: HORIZON ORGANIC MILK PLUS DHA OMEGA-3 MARKETING AND SALES PRACTICES LITIGATION

Western District of Arkansans

Steven Hulsey v. Dean Foods Company, et al, C.A. No. 5:11-05251

Southern District of California

Evereth Barrera v. Dean Foods, Inc., et al, C.A. No. 3:11-02249

Middle District of Florida

Dr. Brie Gindele, et al. v. Dean Foods, Inc., et al, C.A. No. 2:11-00600

Southern District of Florida

Michelle Schucher v. WhiteWave Foods Company, C.A. No. 1:11-23807

Northern District of Illinois

Jamie Walker v. Deans Foods, Inc., et al, C.A. No. 1:11-06944

Judges Kathryn H. Vratil and W. Royal Furgeson, Jr., took no part in the decision of this matter.

1 . According to plaintiffs, DHA is a long-chain omega-3 fatty acid typically found in cold water fish. The DHA in the products involved in this litigation is reportedly not derived from fish oil but instead is an immature short-chain omega-3 fatty acid made from an extract of mutated and fermented algae.

2 . Plaintiffs include the following Horizon products: Whole Milk plus DHA Omega-3, Reduced Fat Milk Plus DHA Omega-3, Fat-Free Milk Plus DHA Omega-3 and Chocolate Milk Plus DHA Omega-3. Plaintiff in the S.D. Florida action also includes Silk DHA Omega-3 & Calcium All Natural Soy Milk.