IN RE: Celotex Corp. "Technifoam" Products Liability Litigation

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BEFORE THE JUDICIAL PANEL MULTif: or
— MULTIDISTRICT LITIGATION BHR) 1877	aii bd ha
IN RE CELOTEX CORPORATION "TECHNIFOAM" ) DOCKET: NO.':210
PRODUCTS LIABILITY LITIGATION ) pLors OF rE aiel
)
Peter J. Wallison, et al. v. The )
Celotex Corp., et al., N.D. New York, )
Civil Action No. 76 CV 75 )
OPINION AND ORDER
BEFORE JOHN MINOR WISDOM*, CHAIRMAN, AND EDWARD WEINFELD,
EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH S. LORD, III*,
STANLEY A. WEIGEL*, AND ANDREW A. CAFFREY, JUDGES OF THE
PANEL.
PER CURIAM
The Panel previously transferred the actions in this
litigation to the District of Minnesota and, with the con-
[ sent of that court, assigned them to the Honorable Charles
R. Weiner, sitting by designation under 28 U.S.C. §292(d),
for coordinated and consolidated pretrial proceedings
pursuant to 28 U.S.C. §1407. In re Celotex Corporation
"Technifoam" Products Liability Litigation, 68 F.R.D. 502
(J.P.M.L. 1975).
Plaintiffs in the above-captioned action (Wallison)
are two persons who together own a home in New York. They
allege that "Technifoam" was used as an insulating material
in the interior walls of their home and that a two-part
*Although Judges Wisdom, Lord, and Weigel were unable to
attend the Panel hearing, they have, with the consent of
all parties, participated in this decision.

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® polyurethane foam was used as an insulating material on the
ceilings of their home. “Technifoam" is produced in
board-like form and is either glued or nailed to a surface
in its installation. Celotex Corporation (Celotex) is
named as a defendant in this action and the claims against
it are asserted solely on the basis of plaintiffs’ use of
“Technifoam,"	the only type of cellular plastic insulation
product that Celotex manufactures. A two-part polyurethane
foam is another type of cellular plastic insulation product
and is a mixture of two liguids which upon mixing becomes
a foam that is applied directly to the surface of application
and later dries. Witco Chemical Corp. (Witco), the Upjohn
® Company (Upjohn) and an as vet unknown third corporation
are also named as defendants in this action and plaintiffs
allege that the two-part polyurethane foam was manufactured
by one of these defendants. The complaint in Wallison
) contains allegations that the fire behavior characteristics
of these insulating materials have substantially impaired
the value of plaintiffs' home, rendering it unsuitable
| for human habitation until corrected by covering or re-
moving the defective products. Liability is asserted on
theories of strict liability, negligence, breach of
warranty, and fraudulent misrepresentation.
Since Wallison appeared to share common questions
of fact with the previously transferred actions, the
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@® Panel conditionally transferred the action to the District
of Minnesota for inclusion in the Section 1407 proceedings
pending in that aistrice.” Defendants Upjohn and Witco
oppose transfer, and have moved to vacate the conditional
transfer order. Plaintiffs in wallison favor transfer of
this action, while defendant Celotex expresses a neutral
position on the question.
Wwe find that this action shares common questions of
fact with the previously transferred actions, and that its
transfer to the District of Minnesota to join the actions
already pending there for coordinated or consolidated pre-
trial proceedings under Section 1407 will best serve the
® convenience of the parties and witnesses and promote the
Just and efficient conduct of the litigation.
Defendants Upjohn and Witco oppose transfer on the
ground that Wallison does not involve a single, primary,
common defendant as do the actions pending in the District
of Minnesota. These defendants stress that this action
involves at least two different products manufactured
by different companies, and that, unlike	the alleged lia-
bility of the defendants other than Celotex in the actions
in the transferee district, the alleged liability of the
defendants other than Celotex in Wallison is unrelated to
I/See Rule 9, R.P.J.P.M.L., 65 F.R.D. 253, 259-60 (1975).
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® Celotex's development, testing, and marketing of “Technifoam."
Upjohn and Witco state that their relevant documents and
witnesses are located in or near New York state, and that
therefore undue expenses and hardships would result if they are
required to participate in pretrial proceedings in Minnesota.
They add that the installers of the two-part foam are likely
to be involved in this action either as witnesses or as
third-party defendants, and that these installers are
located in New York state.
We find these arguments unpersuasive. As all parties
at least tacitly recognize, Wallison shares common ques-
tions of fact with the actions in the transferee district
concerning the claims against Celotex. Thus, transfer
® under Section 1407 is necessary in order to eliminate the
possibility of duplicative discovery and prevent incon-
sistent pretrial rulings. In re Celotex Corporation
"Technifoam" Products Liability Litigation, supra, 68 F.R.D.
at 504. The fact that wallison may also involve parties and
issues not present in th= other actions in this litigation
is no obstacle to transfer. In re Japanese Electronic
Products Antitrust Litigation, 388 F. Supp. 565, 567 (J.P.M.L.
1975). The transferee judge, of course, has the broad
discretion in designing a pretrial program to allow dis-
covery on any issues unique to a particular action to
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® proceed concurrently with discovery on common issues.
See In re Republic Naticnal-Realty Equities Securities
Litigation, 382 F. Supp. 1403, 1405-06 (J.P.M.L. 1974).
And the individual parties need not participate in dis-
covery on issues in which they are not involved. See,
e.9g., Manual for Complex Litigation, Part I, §2.31 (rev.
ed. 1973). In addition, we observe that plaintiffs in
Wallison assert that certain organizations provide
technical assistance, such as product testing, relating
to the flammability characteristics of cellular plastic
insulation products to all manufacturers of those products,
and that questions of fact regarding this assistance will
be common to the alleged liability of Celotex and to the
® alleged liability of the other manufacturing.defendants. Hence, an |
additional benefit of transfer will be to eliminate dupli-
cative discovery concerning the industry-wide organizations.
Furthermore, transfer under Section 1407 need not re-
sult in undue expenses or hardships being incurred by the
parties. The judicious use of lead counsel, liaison
counsel, and steering committees can keep travel and
concomitant expenses to a minimum. See Manual for Complex
Litigation, supra, Part 1, §§1.90-1.93. Nor does the
transfer of Wallison mean that all discovery must occur in
the transferee district. For example, depositions of
witnesses may still be taken where they reside. See	In re
@® Stirling Homex Corporation Securities Litigation, 405 F.
Supp. 314, 316 (J.P.M.L. 1975); Fed. R. Civ. P. 45(d) (2).

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® Also, document depositories may be established at locations
to suit the convenience of the parties. See Manual for
Complex Litigation, supra, Part I, §2.50.
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C.
§1407, the action entitled Peter J. Wallison, et al. v.
The Celotex Corp., et al., N.D. New York, Civil Action No.
76 cv 75, be, and the same hereby is, transferred to the
District of Minnesota and, with the consent of that court,
assigned to the Honorable Charles R. Weiner, sitting by
designation under 28 U.S.C. §292(d), for coordinated or
consolidated pretrial proceedings with the actions pre-
: viously transferred to that district.
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