IN RE: Swine Flu Immunization Products Liability Litigation

- Case MDL No. 330 Document 2 Filed 05/05/15 Page 10f50 -
: ‘ pL PANEL 8 : E
oo LEAT	T HGCA ig oo
: I Se 1) : : co
BEFORE THE JUDICIAL PANEL re b ; RENE
ON TI Sa ET Po eeCEB 23 i i Tl
} MULTIDISTRICT LITIGATION ; oo B
PATRIA CL FA : -
IN RE SWINE FLU IMMUNIZATION ) CLERC CF THE Panik 38).	PRODUCTS LIABILITY LITIGATION) - DOCKET NO. 330 , '
OPINION AND ORDER
BEFORE JOHN MINOR WISDOM*, CHAIRMAN, AND EDWARD WEINFELD¥, | . . a.EDWIN A. ROBSON *, JOSEPH S. LORD, III, STANLEY A. WEIGEL, I } }
ANDREW A. CAFFREY, AND ROY W. HARPER, JUDGES OF THE PANEL. ! oo
: |
PER CURIAM |i
Cs : f
I. Background of the Litigation :
/ EE
"This litigation presently consists of 26 actions pending | 0
in seventeen federal districts. The distribution of the actions | :H .
is as follows: !
Northern District of Alabama 5 | ooNorthern District of California = 2 a
Eastern District of California 2
Southern District of New York 2
District of Minnesota 2
District of Hawaii 2 .
Northern District of New York 1
Northern District of Oklahoma 1 . . Co
Northern District of Ohio 1 |EE co
Southern District of Florida 1
Western District of Michigan 1 :
Eastern District	of Missouri 1 i
Eastern District of Pennsylvania 1 ‘
Middle District of Tennessee 1 Po Co
District of Colorado 1 Eo SA
District of Arizona 1 : Co
District of Vermont 1 i :
* Judges Wisdom, Weinfeld and Robson took no part in the decision
of this matter.

: Case MDL No. 330 Document 2 Filed 05/05/15 Page 2 of 50
: - 2 =
These actions involve claims for personal injuries or :
® wrongful death resulting from administration of swine flu |
vaccinations under the National Swine Flu Immunization Program
of 1976, 42 U.S.C. §247b(j)-(1). The legislation provided |
that the United States would assume exclusive liability, with
certain limitations, for all personal injuries or deaths re-
sulting from manufacture, distribution or administration of
vaccine under the swine flu program. 42 U.S.C. §247b(k) . |
The legislation further provided that, with certain modifi-
‘ cations, the customary procedures for filing tort claims
against the United States must be followed. Id. Those
procedures require a claimant to file a written notice of
claim with the United States and, if the claim is not re-
® solved within six months, it is deemed to have been disallowed |
and the claimant is entitled to file suit in federal court
on the claim. 28 U.S.C. §2675. The present actions
apparently have been filed after compliance with those pro-
cedures. : i
The United States is the sole defendant in all except | |
i/ |
two of the actions. Plaintiffs in the actions generally : |y
Ba |
1/ In one of the Alabama actions (Jarrett), four pharmaceu- : |	tical manufacturers that participated in the swine flu program
are also named as defendants. Plaintiff in Jarrett alleges
that any interpretation of the statutory provisions of the swine |flu program that would preclude actions against participants
in the program other than the United States is unreasonableand unconstitutional.
Plaintiff in one of the Southern District of New York
actions (Shiels) alleges that while he was hospitalized in a
[ New York hospital with injuries resulting from administration
of a swine flu vaccination to him, he was allowed to fall from
an x-ray table, sustaining further injuries. The New York :
hospital is named as a second defendant in Shiels. |

. | Case MDL No. 330 Document 2 Filed 05/05/15 Page	3 of 50 -
allege that the swine flu vaccine was improperly developed,
® researched, tested, manufactured, marketed, distributed,
promoted and administered. In particular, plaintiffs allege
that the risks of injuries and neurological complications
that might result from administration	of the vaccine were
inadequately disclosed. Liability is claimed under theories
of, inter alia, negligence, strict liability, fraudulent
misrepresentation and breach of express and implied warranties.
The injuries most frequently alleged are paralysis, a particular
‘ type of paralysis known as Guillain-Barre Syndrome, loss of
sensation and death. Plaintiff in the action pending in the
Southern District of Florida (Reichlin) seeks to represent
a class consisting of all individuals who have contracted
® Guillain-Barre Syndrome as a proximate result of having beeninnoculated with swine flu vaccine. The other 25 actions
are individual actions. | :
II. Proceedings Before the Panel
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 26 actions should not be transferred
to a single district for coordinated or consolidated pretrial
proceedings. The plaintiffs in several actions favor transfer.
2/ &knother action, Rosaleen Fergus v. The United States	of
America, N.D, Illinois, Civil Action No. 77C3697, was included
in the show cause order but has recently been dismissed. A
motion to reconsider that dismissal is presently under consider-
ation by the Illinois court, however. If this action is
reinstated, it will be treated as a tag-along action. See
@ Rules 1, 9 and 10, R.P.J.P.M.L., 65 F.R.D. 253, 255, 259-60	(1975),

: Case MDL No. 330 Document	2, Eiled 05/05/15 Page	4 of 50 oo
The United States and plaintiffs in several other actions
® oppose transfer. A number of different transferee forums
have been suggested by the parties.. |
We find that these actions involve common questions of Co
fact and that their transfer under Section 1407 to the
District of the District of Columbia for coordinated or
consolidated pretrial proceedings will serve the convenience
of the parties and witnesses and promote the just and
efficient conduct of this litigation.
‘ III. The Question of Transfer
Although the United States and some of the other parties
opposing transfer recognize that these actions involve common
guestions of fact regarding pertinent scientific and medical
data, the parties opposing transfer contend that individual
® factors predominate in each action. For example, they urge
that the types and degrees of injuries vary; that causation
varies significantly with individual factors such as age,
medical history, and the amount of time that elapsed from
receipt of the vaccine until the onset of injuries; that the
substantive law applicable in each action will be that of |
the state wherein each action was filed; and that liability
questions against the United States differ because in actuality
the United States stands in the shoes of a number of partic-
ipants in the swine flu program, including the five manu-
facturers of the swine flu vaccine and the numerous local
|
@

oo Case MDL No. 330 Document2 Filed 05/05/15 Page	5 of 50 |
| - 5 -
® groups that administered the vaccine. In addition, some 1opponents maintain that transfer will cause undue expense
to plaintiffs of limited financial means and that, because
new actions will continuously be filed, pretrial proceedings
in the actions in this litigation will be in many different !
stages and therefore coordination or consolidation of :
3/
these proceedings will be difficult. : |We find these arguments unpersuasive. Although we
. . . f
acknowledge that the swine flu actions differ in certain i
respects, we are persuaded that all these actions involve |
substantial common questions of fact concerning the develop-
ment, production, testing and administration of the swine
flu vaccine. Scientific knowledge concerning the efficacy
® of the swine flu vaccine and the potential risks involved
in administration of the vaccine is relevant to all actions.
Transfer is thus necessary in order	to prevent duplicative |
discovery concerning the same documents and witnesses and |i
to eliminate the possibility of conflicting pretrial rulings.
Any discovery unique to a particular action can be scheduled
by the transferee judge to proceed concurrently with the ;
: 7
common discovery, which will allow the litigation to proceed : r
3/ We are advised that over 1100 claims have been filed with
the United States for injuries allegedly resulting from the
administration of vaccinations under the swine flu program,
and that over 300 of these claims involve Guillain-Barre
Syndrome. We are further advised that no Guillain-Barre
claims have been settled by the United States. A large number
of tag-along actions are therefore anticipated and, in fact,
@ several have already been filed. Our order of December 5, 1977,	directing the United States to notify the Panel of any new
actions remains in effect.

’ Case MDL No. 330 Document2 Filed 05/05/15 Page	6 of 50
- 6 -
® expeditiously in all areas. See In re Republic National-
Realty Equities Securities Litigation, 382 F. Supp. 1402,
1405-06 (J.P.M.L. 1974).
The concern that transfer might	be financially burden-
some to plaintiffs of limited financial means is unwarranted.
Transfer under Section 1407 will have the salutary effect
of placing all swine flu actions before a single judge who
will be in the best position to determine the manner and
: extent of coordination or consolidation of the pretrial
proceedings for the optimum conduct of the litigation as
a whole, including minimizing the overall expense to the
parties. See In re A. H. Robins, Inc. "Dalkon Shield"
IUD Products Liability Litigation, 406 F. Supp. 540, 542
® (J.P.M.L. 1975). Since a Section 1407 transfer is for | | i
pretrial proceedings only, there is usually no need for :i
the parties and witnesses to travel to the transferee |
district for depositions or otherwise. See, e.q.,
Fed.R.Civ.P. 45(d}) (2). Furthermore, the judicious use
of liaison counsel, lead counsel and steering committees
will eliminate the need for most counsel ever to travel :
to the transferee district. See Manual for Complex
Litigation, Part I, §§1.90-1.93 (rev. ed. 1977). And ;
it is most logical to assume that prudent counsel will .
combine their forces and apportion the workload in order
to streamline the efforts of the parties and witnesses, t

SE Case MDL No. 330 Document2 Filed 05/05/15 Page	7 of 50° |
—- 7 =
their counsel and the judiciary, thereby effectuating
® an overall savings of cost and a minimum of inconvenience |
to all concerned. See In re Nissan Motor Corporation ;
Antitrust Litigation, 385 F. Supp. 1253, 1255 (J.P.M.L. g
1974). |
Nor need the parties worry about incorporating tag- 1
along actions into the coordinated or consolidated :
pretrial proceedings in this litigation. The transferee :
judge has procedures available through which appropriate
‘ discovery already completed in earlier actions can be
made applicable to actions that are later filed. See
Manual for Complex Litigation, Parts I and II, §§3.11
(rev. ed. 1977). Indeed, this will be an additional
® benefit of transfer under Section 1407.
IV. Selection	of the Transferee District
Since this litigation is national in scope, and many
actions filed in several different districts are involved,
any of several districts might be an appropriate trans-
feree forum. On balance, however, we believe that the
District of the District of Columbia is the preferable | :
transferee forum for this litigation, even though none f
of the actions yet filed in this litigation is pending 1
there. Administrative control over the swine flu program
was exercised by officials of the Department of Health, :
Education and Welfare, which is headquartered in the
PY District of Columbia. The District of the District of |
|

: Case MDL No. 330 Document2 Filed 05/05/15 Page 8 of 50
Cs.
Columbia therefore has a greater nexus to the principal :
® issues involved in this litigation than any other federal
district. See In re Sundstrand Data Control, Inc. Patent
Litigation, _ F. Supp. ___, _____ (J.P.M.L., filed h
January 27, 1978) (slip opinion at 6-8).
Although we are particularly sensitive to the arguments :
of certain plaintiffs for selection of a transferee district
in the central part of the country in order to best facilitate
| the convenience of the plaintiffs, we are satisfied that the
need for a central location will be minimized by optimum
use of lead counsel.
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C.
§1407, the actions listed on the following Schedule A be,
[ and the same hereby are, transferred	to the District of the
District of Columbia and, with the consent of that court,
assigned to the Honorable Gerhard A. Gesell for coordinated |
or consolidated pretrial proceedings. |
®

: Case MDL No. 330 Document 2 Filed 05/05/15 Page 9 of 50 :
DOCKET NO. 330 SCHEDULE A
® NORTHERN DISTRICT OF ATABAMA :
Roland Ryan v. The United States Civil Action
of America No. 77M16668S
Leevotus Cooper v. The United States Civil Action
of America No. 77P1500S8
George T. Jarrett, etc. v. The United Civil Action
States of America, et al. No. 77L5051NE : :
Bert Moss v. The United States of Civil Action
America, No. 77H1587M
Mary A. Moss v. The United States of Civil Action
. America No. 77H1586M
"NORTHERN DISTRICT OF CALIFORNIA
Robert Ray Putman v. The United States of Civil Action
America No. C77-2201-RHS
Stephen Burke v. The United States of Civil Action
[ America : No. C77-2234-SAW
EASTERN DISTRICT OF CALIFORNIA
Howard Edwin Blake v. The United States Civil Action
of America : No. Civ S 77-665-TJM
Albert J. Heitz v. The United States Civil Action
of America No, Civ S$-77-578-TJM
SOUTHERN DISTRICT OF NEW YORK
George F, Shiels v. The United States Civil Action |
of America No. 77 Civ. 5231 :
Benton Fischer v. The United States Civil Action i
of America No. 77 Civ 5495 :
® |
| |

in
: Case MDL No. 330 Document 2 Filed 05/05/15 Page 10 of 50
MDI~330 —~ Schedule A ~-~ p.2 :
DISTRICT OF MINNESOTA
Dorothy Burdine, etc. v., The United States Civil Action
of America No. Civ 4-77-333
Rodney J. Ganje v. The United States of Civil Action
America No. Civ 4-77-412
DISTRICT OF HAWAII
Kenneth Tatsuro Hazemoto v. The United Civil Action
States of America No. 77-0264
Mark Charles Waldvogel, et al. v. The. Civil Action
United States of America - No. 77-0459
NORTHERN DISTRICT OF NEW YORK i
Catharine M. McDonough v. The United Civil Action
® States of America No. 77 CvV416
NORTHERN DISTRICT OF OKLAHOMA
J. Don Foster v. The United States of Civil Action
America No. 77-C-465-B Co
NORTHERN DISTRICT OF OHIO ’
Mary Ellen Ivan, et al. v. The United Civil Action
States of America No. C77-229-Y |SOUTHERN DISTRICT OF FLORIDA 4
[34
I
Celia D. Reichlin v. The United States Civil Action !
of America No. 77-5892-Civ-CA :if
it
WESTERN DISTRICT OF MICHIGAN i
| I
Kathleen Herbst, etc. v. The United Civil Action i
States of America No. G77-543
H
: }

. Case MDL No. 330 Document 2 Filed 05/05/15 . Page 11 of 50
MDL~-330 -- Schedule A -- p.3
EASTERN DISTRICT OF MISSOURI
Weldon Edward Pretre, etc. v. The United Civil Action
States of America No. 77-1107C(4)
EASTERN DISTRICT OF PENNSYLVANIA
Arthur 8S. Polk, etc. v. The United States Civil Action
: of America No. 77-4041
MIDDLE DISTRICT OF TENNESSEE
Katherine G. Wolfe, et al. v. The Civil Action
United States of America No. 77-2083-NE-CV
DISTRICT OF COLORADO |
Scott Richard Heath v. The United Civil Action
States of America No. 77-F-1113 ’
® DISTRICT OF ARIZONA |
Jerome Katz v. The United States of Civil Action
America No. Civ 77-249-Tuc
DISTRICT OF VERMONT | |
Roger A. Mitiguy v. The United States Civil Action
of America No. 77-243
i
: |
i

Se Case MDL No. 330 Document 2 Filed 05/05/15 Page 12 of 50
: | JUIIIAL PANE on | Co
PULTE AIT LTT - RRR
DOCKET NO. 330. I Co RE
a DEC-5 1377 EE
BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION : SEA a
: PATRICL, DL LHD a Co
IN RE SWINE FLU IMMUNIZATION PRODUCTS LIABILITY LITICGATION:L ~
ORDER TO SHOW CAUSE
You and each of you are hereby ORDERED to show cause |
why the actions listed on the attached Schedule A should _
not be transferred pursuant to 28 U.S.C. §1407 to a single i EE
district for coordinated or consolidated pretrial pro- #3777 Ce	ceedings. KA Co
Responses to this order shall conform with the re- : oo
quirements of Rule 8, of the Rules of Procedure of the -
Judicial Panel on Multidistrict Litigation, 65 F.R.D. :
253 (1975). } :
IT IS FURTHER ORDERED that defendant United States
inform the Panel of additional federal actions which Coo
are filed as a result of the National Swine Flu Immunization Yoo
Program of 1976, enacted by the Congress of the United ;
States on August 12, 1976 as Public Law 94-380. This Co oo
notification should encompass not only additional actions :
which are presently pending but also all future-filed - :
: federal actions. } :
You are further notified that the issuing of this oo
order by the Panel does not affect or suspend orders and Eg nr
discovery proceedings in the district courts in which co
said multidistrict litigation is pending. RPJPMI. (Rule 16).
FOR THE PANEL: .
- 0 Wn bo a«d Chm LEE. (ESO . fo
John Minor Wisdom Co - oo
Chairman Ce Co

DOCKET NO. Gage MDL No. 330 Document 2 Filed 05/05/15 Pags CHREAE A
® NORTHERN DISTRICT OF ALABAMA
Roland Ryan v. Secretary of H.E.W. Civil Action	No. 77Gl452S
Leevotus Cooper v. The United States Civil Action
of America No. 77P1500S
George T. Jarrett, etc. v. The United Civil Action
States of America, et al. No. 77L5051NE
NORTHERN DISTRICT OF CALIFORNIA
Robert Ray Putman v. United States of Civil Action
America No. C77-2201-RHS
Stephen Burke v. United States of Civil Action
America No. C77-2234-SAW
- WESTERN DISTRICT OF MICHIGAN
Kathleen Herbst, etc. v. The United Civil Action
States of America No. G77-543
C - MIDDLE DISTRICT OF LOUISIANATherese A. LaFleur v. The Unitedl Civil Action
States of America No. 77-419
DISTRICT OF VERMONT
Roger A. Mitiguy v. The United Civil Action
States of America No. 77-243
RASTERN DISTRICT OF MISSOURI
Weldon Edward Pretre, etc. v. The Civil Action
United States of America No. 77-1107cC(4)

Case MDLNo. 330 Document2 Filed05/05/15 Page 14of50 |	E JEL PANEL Ce
aE ETAUT LIRA i : Lo
ee oy R230 | SR
BEFORE THE JUDICIAL PANEL ony 7 Ll ;-
| oN FID 23 WIS 7 oeMULTIDISTRICT LITIGATION “ - bo. Co
DATTA DL LS -
IN RE SWINE FLU IMMUNIZATION ) opERE OT TUE FEL
PRODUCTS LIABILITY LITIGATION) DOCKET NO. 330 i
QPINION AND ORDER |1 oo
—_— : Eo SEE
BEFORE JOHN MINOR WISDOM*, CHAIRMAN, AND EDWARD WEINFELD¥*, bo
EDWIN A. ROBSON *, JOSEPH S. LORD, III, STANLEY A. WEIGEL, : |
ANDREW A. CAFFREY, AND ROY W. HARPER, JUDGES OF THE PANEL. . . so
PER CURIAM
I. Background of the Litigation oo
This litigation presently consists of 26 actions pending 5
in seventeen federal districts. The distribution of the actions
is as follows: 3 oo
Northern District of Alabama 5 N
Northern District of California = 2
Eastern District of California 2 :
Southern District of New York 2
District of Minnesota 2
District of Hawaii 2 .
Northern District of New York 1 =
Northern District of Oklahoma 1 LL .. Co
Northern District of Ohio 1 So EE
Southern District of Florida 1 : |
Western District of Michigan 1 i
Eastern District of Missouri 1 ]
Eastern District of Pennsylvania 1 i
Middle District of Tennessee 1 | Lo
District of Colorado 1 qo or
District of Arizona 1 ! :
District of Vermont 1 oo a .
* Judges Wisdom, Weinfeld and Robson took no part in the decision
of this matter.

Case MDL No. 330 Document 2 Filed 05/05/15 Page 15 of 50 :
. _ 5 -
[ These actions involve claims for personal injuries or
wrongful death resulting from administration of swine flu
vaccinations under the National Swine Flu Immunization Program
of 1976, 42 U.S.C. §247b(j)-(1). The legislation provided
that the United States would assume exclusive liability, with
certain limitations, for all personal injuries or deaths re-
sulting from manufacture, distribution or administration of
vaccine under the swine flu program. 42 U.S.C. §247b(k).
The legislation further provided that, with certain modifi-
cations, the customary procedures for filing tort claims
against the United States must be followed. Id. Those
procedures require a claimant to file a written notice of
claim with the United States and, if the claim is not re-
( solved within six months, it is deemed to have been disallowed
and the claimant is entitled to file suit in federal court
on the claim. 28 U.S.C. §2675. The present actions
apparently have been filed after compliance with those pro-
cedures. :
The United States is the sole defendant in all except
1/
two of the actions. Plaintiffs in the actions generally a
1l/ In one of the Alabama actions (Jarrett), four pharmaceu-
tical manufacturers that participated in the swine flu program
are also named as defendants. Plaintiff in Jarrett alleges
that any interpretation of the statutory provisions of the swine
flu program that would preclude actions against participants
in the program other than the United States is unreasonable
and unconstitutional.
Plaintiff in one of the Southern District of New York .
@ actions (Shiels) alleges that while he was hospitalized in a |
New York hospital with injuries resulting from administration
of a swine flu vaccination to him, he was allowed to fall from
an x-ray table, sustaining further injuries. The New York
hospital is named as a second defendant in Shiels.

| Case MDL No. 330 Document 2 Filed 05/05/15 Page 16 of 50
’ - 3 -
) allege that the swine flu vaccine was improperly developed,
researched, tested, manufactured, marketed, distributed,
promoted and administered. In particular, plaintiffs allege
that the risks of injuries and neurological complications
: that might result from administration of the vaccine were
inadequately disclosed. Liability is claimed under theories
of, inter alia, negligence, strict liability, fraudulent |
misrepresentation and breach of express and implied warranties.
The injuries most frequently alleged are paralysis, a particular
type of paralysis known as Guillain-Barre Syndrome, loss of
sensation	and death. Plaintiff in the action pending in the
Southern District of Florida (Reichlin) seeks to represent
a class consisting of all individuals who have contracted
® Guillain-Barre Syndrome as a proximate result of having been :
innoculated with swine flu vaccine. The other 25 actions
are individual actions. |
ITI. Proceedings Before the Panel
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 26 actions should not be transferred oo
to a single district for coordinated or consolidated pretrial
proceedings. The plaintiffs in several actions favor transfer.
2/ another action, Rosaleen Fergus v. The United States	of
America, N.D. Illinois, Civil Action No. 77C3697, was included
in the show cause order but has recently been dismissed. A
motion to reconsider that dismissal is presently under consider-
ation by the Illinois court, however. If this action is
® reinstated, it will be treated as a tag-along action. See
- Rules 1, 9 and 10, R.P.J.P.M.L., 65 F.,R.D. 253, 255, 259-60 :
(1975),

Case MDL No. 330 Document 2 Filed 05/05/15. Page 17 of 50
® The United States and plaintiffs in several other actions
oppose transfer. A number of different transferee forums
have been suggested by the parties.
We find that these actions involve common questions of
fact and that their transfer under Section 1407 to the
District of the District of Columbia for coordinated or |
consolidated pretrial proceedings will serve the convenience
of the parties and witnesses and promote the just and
efficient conduct of this litigation.
III. The Question of Transfer
Although the United States and some of the other parties
opposing transfer recognize that these actions involve common
questions of fact regarding pertinent scientific and medical
CJ data, the parties opposing transfer contend that individual
: factors predominate in each action. For example, they urge
that the types and degrees of injuries vary; that causation }
varies significantly with individual factors such as age,
medical history, and the amount of time that elapsed from
receipt of the vaccine until the onset of injuries; that the
substantive law applicable in each action will be that of
the state wherein each action was filed; and that liability
questions against the United States differ because in actuality
the United States stands in the shoes of a number of partic-
ipants in the swine flu program, including the five manu-
facturers of the swine flu vaccine and the numerous local
®

Case MDL No. 330 Document2 Filed 05/05/15 Page 18 of 50
- 5 — :
® groups that administered the vaccine. In addition, some
opponents maintain that transfer will cause undue expense
to plaintiffs of limited financial means and that, because
new actions will continuously be filed, pretrial proceedings
in the actions in this litigation will be in many different
stages and therefore coordination or consolidation of
| 3/
these proceedings will be difficult.
We find these arguments unpersuasive. Although we
acknowledge that the swine flu actions differ in certain
respects, we are persuaded that all these actions involve
substantial common questions of fact concerning the develop-
ment, production, testing and administration of the swine
flu vaccine. Scientific knowledge concerning the efficacy
® of the swine flu vaccine and the potential risks involved
in administration of the vaccine is relevant to all actions. :
Transfer is thus necessary in order to prevent duplicative :
discovery concerning the same documents and witnesses and |
to eliminate the possibility of conflicting pretrial rulings. -
Any discovery unique to a particular action can be scheduled H
i
by the transferee judge to proceed concurrently with the i
cormon discovery, which will allow the litigation to proceed
3/ We are advised that over 1100 claims have been filed with :
the United States for injuries allegedly resulting from the
administration of vaccinations under the swine flu program,
and that over 300 of these claims involve Guillain-Barre
Syndrome. We are further advised that no Guillain-Barre
claims have been settled by the United States. A large number
of tag—-along actions are therefore anticipated and, in fact,
@ several have already been filed. Our order of December 5, 1977,© directing the United States to notify the Panel of any new
actions remains in effect.

Case MDL No. 330 Document2 Filed 05/05/15 Page 19 of 50
- 6 -
® expeditiously in all areas. See In re Republic National- |
Realty Equities Securities Litigation, 382 F. Supp. 1402,
1405-06 (J.P.M.L. 1974). :
The concern that transfer might be financially burden-
some to plaintiffs of limited financial means is unwarranted.
Transfer under Section 1407 will have the salutary effect
of placing all swine flu actions before a single judge who |
will be in the best position to determine the manner and
| extent of coordination or consolidation of the pretrial
proceedings for the optimum conduct of the litigation as
a whole, including minimizing the overall expense to the
parties. See In re A. H. Robins, Inc. "Dalkon Shield" |
C IUD Products Liability Litigation, 406 F. Supp. 540, 542
(J.P.M.L. 1975). Since a Section 1407 transfer is for
| pretrial proceedings only, there is usually no need for
the parties and witnesses to travel to the transferee
district for depositions or otherwise. See, e.9.,
Fed.R.Civ.P. 45(d) (2). Furthermore, the judicious use
of liaison counsel, lead counsel and steering committees
will eliminate the need for most counsel ever to travel
to the transferee district. See Manual for Complex
Litigation, Part I, §§1.90-1.93 (rev. ed. 1977). And
it is most logical to assume that prudent counsel will
combine their forces and apportion the workload in order
to streamline the efforts of the parties and witnesses,
@

| | Case MDL No. 330 Document2 Filed 05/05/15 Page 20 of 50 .
Cg
0 their counsel and the judiciary, thereby effectuating
an overall savings of cost and a minimum of inconvenience
to all concerned. See In re Nissan Motor Corporation’
Antitrust Litigation, 385 F. Supp. 1253, 1255 (J.P.M.L.
1974).
Nor need the parties worry about incorporating tag-
along actions into the coordinated or consolidated
pretrial proceedings in this litigation. The transferee
judge has procedures available through which appropriate
discovery already completed in earlier actions can be |
made applicable to actions that are later filed. See
Manual for Complex Litigation, Parts I and II, §§3.11
(rev. ed. 1977). Indeed, this will be an additional
® benefit of transfer under Section 1407.
IV. Selection of the Transferee District :
Since this litigation is national in scope, and many
actions filed in several different districts are involved,
any of several districts might be an appropriate trans-
feree forum. On balance, however, we believe that the }
District of the District of Columbia is the preferable
transferee forum for this litigation, even though none
of the actions yet filed in this litigation is pending
there. Administrative control over the swine flu program
was exercised by officials of the Department of Health,
Education and Welfare, which is headquartered in the
[ District of Columbia. The District of the District of

Co Case MDL No. 330 Document2 Filed 05/05/15 Page 21 of 50
- 8 = |
LC] Columbia therefore has a greater nexus to the principal |	issues involved in this litigation than any other federal
district. See In re Sundstrand Data Control, Inc. Patent
Litigation, __ FF. Supp. ___, ___ (J.P.M.L., filed
January 27, 1978) (slip opinion at 6-8).
Although we are particularly sensitive to the arguments :
of certain plaintiffs for selection of a transferee district [
in the central part of the country in order to best facilitate |
the convenience of the plaintiffs, we are satisfied that the | |
need for a central location will be minimized by optimum
use of lead counsel. |
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C.
§1407, the actions listed on the following Schedule A be,
: ® and the same hereby are, transferred to the District of the
District of Columbia and, with the consent of that court,
assigned to the Honorable Gerhard A. Gesell for coordinated
or consolidated pretrial proceedings.
!
)

) Case MDL No. 330 Document 2 Filed 05/05/15 Page 22 of 50
DOCKET NO. 330 SCHEDULE A
UC) NORTHERN DISTRICT OF ALABAMA |
Roland Ryan v. The United States Civil Action
of America No. 77M1666S
Leevotus Cooper v. The United States Civil Action
of America No. 77P1500S
George T. Jarrett, etc. v. The United Civil Action
States of America, et al. No. 77L5051NE :
Bert Moss v. The United States of Civil Action
America No. 77H1587M
Mary A. Moss v. The United States of Civil Action
America No. 77H1586M
NORTHERN DISTRICT OF CALIFORNIA
Robert Ray Putman v. The United States of Civil Action
America No. C77-2201-RHS
® Stephen Burke v. The United States of Civil Action	America No. C77-2234-SAW
EASTERN DISTRICT OF CALIFORNIA
Howard Edwin Blake v. The United States Civil Action
of America No. Civ 8 77-665-TJdM
Albert J, Heitz v. The United States Civil Action
of America No. Civ S8-~77-578~-TJM
SOUTHERN DISTRICT OF NEW YORK Co
George F. Shiels v. The United States Civil Action
of America No. 77 Civ. 5231
Benton Fischer v., The United States Civil Action
of America No. 77 Civ 5495

) Case MDL No. 330 Document 2 Filed 05/05/15 Page 23 of 50 |
MDI~330 -- Schedule A -- p.2 |
DISTRICT	OF MINNESOTA
Dorothy Burdine, etc. v. The United States Civil Action
of America No. Civ 4-77-3333
Rodney J. Ganje v. The United States of Civil Action
America . No. Civ 4-77-412
DISTRICT OF HAWAIT
Kenneth Tatsuro Hazemoto v. The United Civil Action
States of America No. 77-0264
Mark Charles Waldvogel, et al. v. The Civil Action
United States of America No. 77-0459
NORTHERN DISTRICT OF NEW YORK i
Catharine M. McDonough v. The United Civil Action !
[ States of America No. 77 CV416
NORTHERN DISTRICT OF OKLAHOMA :[1	
: i
J. Don Foster v. The United States of Civil Action :
America : No. 77-C-465-B !
NORTHERN DISTRICT OF OHIO Ji
Mary Ellen Ivan, et al. v. The United Civil Action !
States of America No. C77-229-Y Co
o
SOUTHERN DISTRICT OF FLORIDA :
I
Celia D. Reichlin v. The United States Civil Action I
of America No. 77-5892-Civ-CA f
WESTERN DISTRICT OF MICHIGAN I
Kathleen Herbst, etc. v. The United Civil Action !States of America No. G77-543
|
| }

to Case MDL No. 330 Document 2 Filed 05/05/15 Page 24 of 50
MDI~330 -- Schedule A —- p.3 . |
EASTERN DISTRICT OF MISSOURI
Weldon Edward Pretre, etc. v. The United Civil Action
States of America No. 77-1107C	(4)
EASTERN DISTRICT OF PENNSYLVANIA
Arthur S. Polk, etc. v. The United States Civil Action
of America No. 77-4041
MIDDLE DISTRICT OF TENNESSEE
Katherine G. Wolfe, et al. v. The Civil Action
United States of America No. 77-2083-NE-CV
DISTRICT OF COLORADO
Scott Richard Heath v. The United Civil Action
® States of America No. 77-F-1113
DISTRICT OF ARIZONA
Jerome Katz v. The United States of Civil Action
America ‘No. Civ 77-249~Tuc
DISTRICT OF VERMONT
‘Roger A. Mitiguy v. The United States Civil Action
of America No. 77-243

Case MDL No. 330 Document 2 Filed 05/05/15 Page 25 of 50
SETARE TUT JUDTOTLT DAN ET iE
ZEXCRE THE JUDICIAL PANEL RE
CH . oo SURE
MULTIDISTRICT LITIGATICH cl o
id ZF SWINE FLU IMMUNIZATICHN ) CCCEET IC. ano Vite ! aDEGDUCTS LIARILITY LITIGATION ) waza	Foude Lo ZLlAD LLL Ll iGAL LUN J : .
:
Fatricia W. Childress v. Unizad States)
oI America, Z.D. Tennessse, CLA. No.)
1-77=-31% )
Debra LL. Cordon v. United Sates of ) - So Soa
-_— \ [ap Rare = So Ce :
America, et al, I. Crezgon, Z.a. do.) = fe : :
- 5 mM [aEET 3 = oes	ST oe i ery m= :
RE = ER :
- - —_ jh fa 3. .
OPINION AND ORDER 2 ma Fh eo Lo	an t FC as - :
—the gl Ree
—_— onl) El satis .
TL = =!	TITAS TANTS TANT TOT ST TODAY Rad TTA EE Sali Sr irbve SN
3EFORE JOEN MINOR WISDCM, CmaAIRHAIl, ald ZDWARD womiliIlg, fae
mT TR gp : NITDI TAC -T TART TS pena Rni in
EDWIN 4, ROB3CM, J05z=PH4 5. LORD, IIT, STANLEY A. ¥21GLL, 23
ANIREW A. CAFFRZY, AND ROY W. ZARPER®, JUDGES 27 T=n = -
PANZL, SUHT
PER CURIAM : oo Sh
T [SR ~ a TOTS pu a 1 i. Cm — ~ 3	On February 28, 1975, the Panel, pursuznt To <¢ :
7.3.2. §1407, transferred 2 number of actions in tris
Sitiz i Iv tn District £ the District © Columbi	Litigation 0 Tae L3TIricCT ©01L tae 1I3Trict ol Lgoliumoia . RE
and, witn the consent of that court, assigned them
Tc the Honcrable Gerhard 4. Gesell for coordinated
or conscolidazed pretrial vrocssdings. In re Swine :
71lu Immunizasion Products Liability Lizigaztion, LL
—~ ~~ - —- as 1 _- - — mtr q . i . :
F.Supp. 244i (J.P.M.L. 1973). Since that date, saveral
sag-aleng actions have been transferrsd to that discrict
1/
or originally filed there.= The actions in the trans-
DPR a Sa re : rela =. , ~ PIE] : N :
*Judge harper took no part in the decision of this
matter. A
: / a 1 _ rm az :
1/ See Rules 1, 9 and 10, R.P.J.P.M.L., 65 F.R.D. 252,
255, 259-60 (1575).

Case MDL No. 330 Document 2 Filed 05/05/15 Page 26 of 50
: - 2 - B
= feree district involve claims against the United States a mr
| for personal injuries or wrongful death allegedly resulting ;
| from administration of swine flu vaccinations under
the National Swine Flu Immunization Program of 1975,
; 42 U.S.C. §247b(j)-(1). plaintiffs in those actions oo
: generally allege that the swine flu vaccine was improperly Ra -
developed, rassearched, tested, manufactured, marketed, oo
distributed, promoted and administered. Tae injuries
most frequently alleged are paralysis, a particular
| type of paralysis known as Guillain-Barre Syndrome, To.
loss of sensation and death. In re Swine Flu Immunization -
Products Liability Litization, suora, L46 F.Supp. at 246. oo oo
The first above-captioned action (Tennsssee :
action) has been brought against the United States
by an individual who alleges that while she was exiting :
the building in which she received a swine flu vaccination,
she Tainted and fell, chivping several testi and suifering
lacerations to her mouth. Like plaintiffs in scme of Co
the actions in the transferee district, plaintiff in ToL
this action alleges that defendant is liable for her
injuries under theories of negligence, strict liability
and breach of implied warranties.
The second above-captioned action (Oregon action) BE : |
has been brought against the United States and an Oregon Co

IY -
) Case MDL No. 330 Documentgz Filed 05/05/15 Page 27 of 50
Qo county by an individual who alleges that she suffered
severe and permanent deterioration of the muscles in
her left shoulder as a result of receiving a swine
- . . 2/	flu vaccination.=
Since these actions appeared to share questions
of fact with the previously transferred actions, tne
Panel entered orders conditionally transferring these
actions to the District of the District of Columbia
for inclusion in the coordinated or consolidated pretrial
proceedings occurring in that district.3/ Plaintiff
in each action opposes transfer of her respective action.
The United States and the plaintiffs' steering committee
C in the transferee district favor transfer of both ac-Jf
tions.2’
We find that these two actions share questions
of fact with the previously transferred actions and
that transfer of the two actions to the District of
the District of Columbia pursuant to Section 1407 will
best serve the convenience of the parties and witnesses
and promote the just and efficient conduct of the liti-
gation.
27 Although not specifically stated in the complaint
in the Oregon action, plaintiff states in her brief
before the Panel that her cause of action is based
on strict liability.
9 3/ See Rule 9, R.P.J.P.M.L., supra, 65 F.R.D. at 259-60.	4/ AIT parties in these two actions waived their right
to oral argument and, accordingly, the question of
transfer in these actions was submitted for decision
on the briefs. See Rule 14, R.P.J.P.M.L., id. at 264.

/
Case MDL No. 330 Document2 Filed 05/05/15 Page 28 of 50 A
- 4 -
®
Plaintiff in the Tennessee action states that her
action is the only pending action which is based on
injuries sustained from fainting after receipt of a
swine flu vaccination. Therefore, she contends, the
factual and legal issues involved in her action are
different from the factual and legal issues involved
in all other swine flu actions. She also maintains
that she could not afford to participate fully in pretrial
proceedings in the transferee district.
Plaintiff in the Oregon action asserts that she
lacks the financial resources to pursue her cause of
action anywhere outside the State of Oregon and that ®she would be financially unable to enter an appearance
in the District of the District of Columbia.
We find the arguments in opposition to transfer
of these two actions unpersuasive. Similar arguments
in opposition to transfer were presented in connection
with our original consideration of this litigation.
For the reasons stated in our opinion and order issued |
at that time, we find that transfer of these two tag-along
actions is also appropriate. See In re Swine Flu Immuni-
zation Products Liability Litigation, supra, 446 F.Supp.
20, The following sections of that opinion are particu-
larly instructive in the present context:
@

¢
oT Case MDL No. 330 Document2 Filed 05/05/15 Page 29 of 50
- 5 =
Although we acknowledge that the swine flu actions
differ in certain respects, we are persuaded that
all these actions invelve substantial common questions
of fact concerning the development, production,
testing and administration of the swine flu vaccine.
Scientific knowledge concerning the efficacy
of the swine flu vaccine and the potential risks
involved in administration of the vaccine is relevant
to all actions. Transfer is thus necessary in
order to prevent duplicative discovery concerning
the same documents and witnesses and to eliminate
the possibility of conflicting pretrial rulings.
Any discovery unique to a particular action can
be scheduled by the transferee judge to proceed
concurrently with the common discovery, which will
allow the litigation to proceed expeditiously
in all areas. See In re Republic National-Realty
Equities Securities Litigation, 382 r.oupp. 1403,
T0506 (J.P. M.LT.19747.The concern that transfer might be financially
burdensome to plaintiffs of limited financial
4 means is unwarranted. Transfer under Section
1407 will have the salutary effect of placing
all swine flu actions before a single judge who
will be in the best position to determine the
manner and extent of coordination or consolidation
of the pretrial proceedings for the optimum conduct
of the litigation as a whole, including minimizing
the overall expense of the parties. See In re
A.H. Robins Co., Inc. '""Dalkon Shield™ IUD Products
Tiability Litigation, &406 F.Supp. 540, 547 (J.P.M.L.
1975). Since a Section 1407 transfer is for pretrial
proceedings only, there is usually no need for
the parties and witnesses to travel to the transferee
district for depositions or otherwise. See, e.g.,
red.R.Civ.P. 45(d) (2). Furthermore, the judicious
use of liaison counsel, lead counsel and steering
committees will eliminate the need for most counsel
ever to travel to the transferee district. See
Manual for Complex Litigation, Part I, §§1.90-1.93
(rev. ed. T5777 And it is most logical to assume
that prudent counsel will combine their forces
and apportion the workload in order to streamline
the efforts of the parties and witnesses, their
counsel and the judiciary, thereby effectuating
an overall savings of cost and a minimum of incon-
venience to all concerned. See In re Nissan Motor
9 Corporation Antitrust Litigation, 385 F.Supp.	75 1255 (J.P.M.L. 19747.

Case MDL No. 330 Document2 Filed 05/05/15 Page 30 of 50 oe
oC ®
Nor need tne parties worry about incorporating
tag-along actions into the coordinated or consolidated
pretrial proceedings in this litigation. The trans-
feree judge has procedures available through which
appropriate discovery already completed in earlier
actions can te made applicable to actions that
are later filed. See Manual for Complex Litigation,
Parts I and II,8§83..1 (rev. ed. 1277). Indeed,
this will be an additional benefit cof transfer
under Section 1407.
Id. at 246-L7.
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C.
§1407, the actions entitled Patricia W. Childress Vv.
United States of America, E.D. Tennessee, C.A. No.
1-77-313, and Debra L. Gordon v. United States of America, ~
et al., D. Oregon, C.A. No. 78-110, be, and the ®same hereby are, transferred to the District of the
District of Columbia and, with the consent of that
court, assigned to the Honorable Gerhard A. Gesell
for coordinated or consolidated pretrial proceedings
with the actions pending there.

| Case MDL No. 330 Document 2 Filed 05/05/15 Page 31 of 50 |
or SUDICIAL PANEL ON : -
RULTI2ISTRICT LITIGATION REE
FILE EREBEFORE THE JUDICIAL PANEL FLED Le co
ON - OCT 31 1378 EE RS
MULTIDISTRICT LITIGATION ot / EEEPATRICIA D0 nn, 7% : ooIn re Swine Flu Immunization Yt zrDocket=No 1330 SE _
Products Liability Litigation ) CTT TT
Jerry L. and Betty Porter v. United States of America,
et al., N.D.Ohio, C.A. No. C78-195
Garrett E. Winter v. United States of America, et al.,
N.D.California, C.A.No. C/8-1179-SC ; SOMES
OPINION AND ORDER - | oo
BEFORE JOHN MINOR WISDOM, CHAIRMAN, AND EDWARD WEINFELD, :
EDWIN A. ROBSON, STANLEY A. WEIGEL, ANDREW A. CAFFREY, AND
ROY W. HARPER, JUDGES OF THE PANEL.
PER CURIAM oo
"The Panel, pursuant to 28 U.S.C. §1407, previously trans- EEE
ferred a number of actions in this litigation to the District : oo Co
| of the District of Columbia for coordinated or consolidated
pretrial proceedings before the Honorable Gerhard A. Gesell.
In re Swine Flu Immunization Products Liability Litigation, -
446 F.Supp. 244; 453 F.Supp. 648 (J.P.M.L. 1978). The
actions in the transferee district involve claims for
personal injuries or wrongful death allegedly resulting Co
from administration of swine flu vaccinations under the Co ,
National Swine Flu Immunization Program of 1976, 42 U.S.C. E
§247b(j)- (1). The claims are asserted against the United
States and other participants in the Swine Flu Program.’
1/ The legislation enacting the Swine Flu Program Co
provided that the United States would assume exclusive
ST liability, with certain limitations, for all personal REE oo
injuries or deaths resulting from manufacture, distribution
or administration of vaccine under the Swine Flu Program.
42 U.S.C. §247b(k).

Case MDL No. 330 Document 2 Filed 05/05/15 Page 32 of 50°
| Plaintiffs in those actions generally allege that the : ERR
swine flu vaccine was improperly developed, researched, | : mine
5/77 tested, manufactured, marketed, distributed, promoted and oo
oT administered. The injuries most frequently alleged are
: paralysis, a particular type of paralysis known as
: Guillain-Barre Syndrome, loss of sensation and death.
a On June 20, 1978, the Secretary of the Department of Health, a }
Education, and Welfare released a statement in which the oo
Secretary stated that, to receive federal compensation, oo
Guillain-Barre claimants will not need to prove negligence
by participants in the Swine Flu Program, but would have LL
) to show only that the claimant in fact developed Guillain- - )
: Barre Syndrome as a result of a swine flu vaccination and a oo
suffered the alleged damages as a result of that condition.
The Secretary noted, however, that although negligence will
: no longer be an issue, Gullain-Barre claims will be closely B
examined to determine proof of injury, causation and the
fair amount of compensation. This policy applies only to
Guillain-Barre claims. Lo
Plaintiffs in the first above-captioned action (Porter) co oo
are an individual who allegedly contracted Guillain-Barre
Syndrome as a result of receiving a swine flu vaccination,
and his wife. In addition to the United States, the labora- oo
tory that allegedly prepared the vaccine is named as a | BR R oo
defendant. _

| ) Case MDL No. 330 Docwgent2 Filed 05/05/15 Page 33 of 50
0 Plaintiff in the second above-captioned action (Winter)
is an individual who allegedly contracted Guillain-Barre
Syndrome as a result of receiving a swine flu vaccination.
In addition to the United States, other program participants
named as defendants in Winter are a California county, a
laboratory and the parent corporation of the laboratory.
Because Porter and Winter appeared to involve common
questions of fact with the actions in this litigation pre-
viously transferred to the District of the District of
Columbia, the Panel, pursuant to Rule 9, R.P.J.P.M.L., 65
F.R.D. 253, 259-60 (1975), entered orders conditionally
transferring Porter and Winter to the District of the
C District of Columbia for inclusion in the coordinated orconsolidated pretrial proceedings occurring there. Plaintiffs
in Porter oppose transfer of Porter. The California county
which is named as a defendant in Winter opposes transfer
of Winter. The United States and plaintiffs' steering
committee for MDL-330 favor transfer of both actions.
We find that, in view of the Secretary's statement con-
cerning Guillain-Barre claims, and on the basis of the
rest of the record before us, Porter and Winter no longer
share questions of fact with any other swine flu actions,
and that transfer of these two actions would not serve the
convenience of the parties and witnesses or promote the
just and efficient conduct of the litigation. Accordingly,
®

Case MDL No. 330 Document 2 Filed 05/05/15 Page 34 of 50 ’ }
—4-
we vacate the conditional transfer orders.2/ : C
The proponents of transfer essentially argue that,
despite the Secretary's statement, these actions will still
share many of the same discovery and pretrial concerns with
other swine flu actions and would benefit from inclusion
in the coordinated or consolidated pretrial proceedings
occurring in the transferee district.
We find these arguments unpersuasive. The common
questions of fact in this litigation pertain to the
issue of liability. See In re Swine Flu Immunization
Products Liability Litigation, supra, 446 F. Supp. at
246-47. Because the Secretary's statement purports to remove
3
the issue of liability from Porter and winter, ana the 9remaining issues of proof of injury, causation and damages ~
are unique as to the plaintiffs in Porter and Winter,
respectively, inclusion of these actions in the coordinated
or consolidated pretrial proceedings is not appropriate
at the present time. See In re Air Crash Disaster at Pago
Pago, American Samoa on January 30, 1974, 394 F. Supp.
799 (J.P.M.L. 1975).
2/ All parties in Winter waived their right to oral
argument and, accordingly, the question of transfer of this
action was submitted for decision on the briefs.
Defendants in Porter also waived their right to oral
argument. See Rule 14, R.P.J.P.M.L., 73 F.R.D. 561,
572 (1978).
3/ For the purposes of this opinion, the Panel must necessarily
rely on the allegations in the complaints in porter and Winter C	that Guillain-Barre claims are involved in these actions.
See In re Kauffman Mutual Fund Actions, 337 F.Supp. 1337, 1339-40
(F.P.M.L. 1972).

} : Case MDL No. 330 Document 2 Filed 05/05/15 Page 35 of 50
—5-
® © IT IS THEREFORE ORDERED that the conditional transfer
orders in the actions entitled Jerry L. and Betty Porter
v. United States of America, et al., N.D.Ohio, C.A. No.
C78-195, and Garrett E. Winter v. United States of America,
et al., N.D.California, C.A.No. C78-1179-58C, be, and the
same hereby are, VACATED.
a
®

a Case MDL No. 330 Document 2 Filed 05/05 mgs of 50
eT LA |
BEFORE THE JUDICIAL PANEL fond . ST
ON oo Lo
MULTIDISTRICT LITIGATION NEN SU IEC
© IN RE SWINE FLU IMMUNIZATION PRODUCTS ) SMRIAT RE
LIABILITY LITIGATION ) Mme ee es ;
| ) | /8/Jerry L. and Betty Porter v. United ) I 7dStates of America, et al., N.D. Ohio, ) To
C.A. No. C78-1I95 )
Garrett E. Winter v. United States )
of America, et al., N.D. California, ) Lo EER
C.A. No. C78=1I1I79-SC ) DOCKET NO. 330 Co Co
Margaret M. Goldstein v. United States ) Co
oF America, E.D. Pennsylvania, ) Co
C.A. No. 78-2524 ) oo
John D. Moseley, etc. v. United States ) :
of America, E.D. California, ) :
C.A. No. S5-78-411-PCW )
y OPINION AND ORDER
BEFORE JOHN MINOR WISDOM, CHAIRMAN, AND EDWARD WEINFELD*, co
EDWIN A. ROBSON, STANLEY A. WEIGEL, ANDREW A. CAFFREY, Co oo
AND ROY W. HARPER, JUDGES OF THE PANEL.
I. BACKGROUND
The Panel, pursuant to 28 U.S.C. §1407, previously Lo :
transferred a number of actions in this litigation to
the District of the District of Columbia for coordinated
or consolidated pretrial proceedings before the Honorable
Gerhard A. Gesell. In re Swine Flu Immunization Products oo
Liability Litigation, 446 F. Supp. 244; 453 F. Supp. Te
648 (J.P.M.L. 1978). The actions in the transferee district
involve claims for personal injuries or wrongful death
allegedly resulting from administration of swine flu :
vaccinations under the National Swine Flu Immunization a
Program of 1976, 42 U.S.C. §247b(j)-(1). The claims 0 |
* Judge Weinfeld did not participate in the decision
of this matter.

oo | Case MDL No. 330 pocument 2 Filed 05/05/15 Page 37 of 50 oo
are asserted against the United States and other partici- 5 STE
- pants in the Swine Flu Program.Ll/ Plaintiffs in those | 3 yr
actions generally allege that the swine flu vaccine was
| improperly developed, researched, tested, manufactured,
) marketed, distributed, promoted and administered. The
injuries most frequently alleged are paralysis, a particular
3 type of paralysis known as Guillain-Barre Syndrome, loss = | oo
of sensation and death. oo
On June 20, 1978, the Secretary of the Department ’
of Health, Education and Welfare released a statement
in which the Secretary stated that, to receive federal
Compensation, Guillain-Barre claimants will not need Cc
to prove negligence by participants in the Swine Flu
Program, but will have to show only that the claimant |
in fact developed Guillain-Barre Syndrome as a result
of a swine flu vaccination and suffered the alleged damages -
as a result of that condition. The Secretary noted,
however, that although negligence will no longer be an
issue, Guillain-Barre claims will be closely examined |
to determine proof of injury, causation and the fair oo oo
amount of compensation. This policy, the Secretary stated, | |
applies only to Guillain-Barre claims.
I/ Thelegislation enacting the Swine Flu Program provided SE Co
that the United States would assume exclusive liability, co
with certain limitations, for all personal injuries or
deaths resulting from manufacture, distribution or admin-
istration of vaccine under the Swine Flu Program. 42 - REE =
U.S.C. §247b(k). Co

: Co Case MDL No. 330 Document2 Filed 05/05/15 Page 38 of 50
- 3 =
C Plaintiffs in the first above-captioned action (Porter)
are an individual who allegedly contracted Guillain-Barre
Syndrome as a result of receiving a swine flu vaccination,
and his wife. In addition to the United States, the
laboratory that allegedly prepared the vaccine is named
as a defendant.
Plaintiff in the second above-captioned action (Winter)
is also an individual who allegedly contracted Guillain-
Barre Syndrome as a result of receiving a swine flu vacci-
nation. In addition to the United States, other program
participants named as defendants in Winter are a California
county, a laboratory and the parent corporation of the
C laboratory.The third above-captioned action (Goldstein) is
brought on behalf of the estate of an individual who
allegedly suffered severe and disabling injuries, "including
but not limited to Guillain-Barre polyneuritis,'" eventually
resulting in his death, as a result of receiving a swine
flu vaccination. The United States is the sole defendant.
Plaintiff in the fourth above-captioned action
(Moseley) is the executor of the estate of his wife.
She allegedly suffered injuries to her lungs and respiratory
system, eventually resulting in her death, as a result
of receiving a swine flu vaccination. The United States
is the sole defendant. No Guillain-Barre claim is made
C in Moseley.

Case MDL No. 330 Document2 Filed 05/05/15 Page 39 of 50 : .
- 4 =
Because Porter and Winter appeared to involve common C
questions of fact with the actions in this litigation
previously transferred to the District of the District
of Columbia, the Panel, pursuant to Rule 9, R.P.J.P.M.L.,
78 F.R.D. 561, 567-68 (1978), entered.orders conditionally
transferring Porter and Winter to the District of the
District of Columbia for inclusion in the coordinated
or consolidated pretrial proceedings occurring there.
Plaintiffs in Porter opposed transfer of Porter. The
California county named as a defendant in Winter opposed
transfer of Winter. The United States and plaintiffs’
steering committee for MDL-330 favored transfer of both
actions. On October 31, 1978, the Panel denied transfer Cwith respect to Porter and Winter. The following excerpts
from the Panel's opinion of that date are relevant here:
We find that, in view of the Secretary's statement
concerning Guillain-Barre claims, and on the basis
of the rest of the record before us, Porter and
Winter no longer share questions of fact with any
other swine flu actions and that transfer of these
two actions would not serve the convenience of the
parties and witnesses or promote the just and efficient
conduct of the litigation. Accoydingly, we vacate	the conditional transfer orders.=
The proponents of transfer essentially argue
that, despite the Secretary's statement, these actions
will still share many of the same discovery and
pretrial concerns with other swine flu actions and
would benefit from inclusion in the coordinated
or consolidated pretrial proceedings occurring in
the transferee district.
2/ All parties in Winter waived their right to
oral argument and, accordingly, the question of
transfer of this action was submitted for decision
on the briefs. Defendants in Porter also waived
their right to oral argument. ~See Rule 14, R.P.J.P.
M.L., 78 F.R.D. 561, 572 (1978).

: Case MDL No. 330 Document2 Filed 05/05/15 Page 40 of 50
- 5 -
C We find these arguments unpersuasive. Thecommon questions of fact in this litigation pertain
to the issue of liability. See In re Swine Flu
Immunization Products Liability Litigation, supra,446 F. Supp. at 246-47. Because the Secretary's
statement purports to rgmove the issue of liabilityfrom Porter and Winter,=' and the remaining issues
of proof of injury, causation and damages are unique
as to the plaintiffs in Porter and Winter, respec-
tively, inclusion of these actions in the coordinated
or consolidated pretrial proceedings is not appropriate
at the present time. See In re Air Crash Disaster
at Pago, Pago, American Samoa on January 30, 1974,
394 F. Supp. 7/99 (J.P.M.L. 1975).
3/ For the purposes of this opinion, the Panel
must necessarily rely on the allegations in the
complaints in Porter and Winter that Guillain-Barre
claims are involved in these actions. See In re
Kauffman Mutual Fund Actions, 337 F. Supp. 1337,
1339-40 (J.P.M.L. 1972).
II. PROCEEDINGS BEFORE THE PANEL
® A. Porter and Winter
The United States has moved for reconsideration
of the Panel's October 31, 1978 opinion denying transfer
of Porter and Winter. The United States requests the
Panel to vacate the opinion and to transfer Porter and
Winter. The California county named as a defendant in
Winter now supports the position of the United States.
Plaintiffs in Porter oppose reconsideration. Plaintiff
in Winter has not responded to the motion for recon-
sideration.

Case MDL No. 330 Document2 Filed 05/05/15 Page 41 of 50 ‘ :
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B. Goldstein and Moseley2/ C
Because Goldstein and Moseley appeared to involve
common questions of fact with the actions in this litigation
previously transferred to the District of the District
of Columbia, the Panel, pursuant to Rule 9, R.P.J.P.M.L.,
supra, 7/8 F.R.D. at 567-68, entered orders conditionally
transferring Goldstein and Moseley to the District of
the District of Columbia for inclusion in the coordinated
or consolidated pretrial proceedings occurring there.
Plaintiff in each action opposes transfer of his or her
respective action. The United States and plaintiffs’
steering committee for MDL-330 favor transfer of these
actions.3/ o	III. DECISION OF THE PANEL
With respect to Porter, Winter and Goldstein, which
for our present purposes, and without making any finding
to that effect, we will assume involve Guillain-Barre
claims,%/ we find that, in light of recent doubts concerning
27 ATIITth action which was before the Panel, Howard
and Goldie Stahl v. United States of America, S.D. Florida,
C.A. No. 78-3688-Civ-9MaA, has been dismissed. Consideration
of the question of transfer with respect to this actionis therefore moot.
3/ The plaintiffs' steering committee appeared at oral
argument. Plaintiffs Goldstein and Moseley and defendant
United States waived their right to oral argument.
4/ As we have noted earlier in this opinion, the Panel
necessarily must rely on the allegations in the complaints
in these actions. See note 3 of the quoted material C	on page 5, supra.

: : Case MDL No. 330 bocument 2 Filed 05/05/15 Page 42 of 50
C whether the Secretary's statement has removed the issueof liability from actions involving Guillain-Barre claims
in MDL-330, Porter, Winter and Goldstein still share
questions of fact with other MDL-330 actions, and transfer
of these three actions under Section 1407 for inclusion
in the coordinated or consolidated pretrial proceedings
occurring in the District of the District of Columbia
before Judge Gesell will serve the convenience of the
parties and witnesses and promote the just and efficient
conduct of the litigation. Accordingly, we grant the
motion for reconsideration with respect to Porter and
Winter, vacate our opinion and order of October 31, 1973
concerning Porter and Winter, and order transfer of Porter,
® Winter and Goldstein.
We further find that Moseley, which involves nd
Guillain-Barre claim, clearly sharés questions of fact
with other MDL-330 actions and that transfer of Moseley
under Section 1407 for inclusion in the coordinated or
consolidated pretrial proceedings occurring in the transferee
district will serve the convenience of the parties and
witnesses and promote the just and efficient conduct
of the litigation.
IV. REASONING
A. Porter, Winter and Goldstein
The opponents of transfer argue in essence that
C the Secretary's statement has removed the common issue

Case MDL No. 330 Document 2 Filed 05/05/15 Page 43 of 50 . .
of liability from their respective actions involving oGuillain-Barre claims; that the remaining issues of
proof of injury, causation and damages are unique with
respect to each action; and that inclusion of these actions
in the coordinated or consolidated pretrial proceedings
is therefore inappropriate.
The United States argues in support of reconsideration
and transfer that the Panel "erred in concluding that
Secretary Califano's statement removed the issue of lia-
bility from [the MDL-330 proceedings with respect to
actions involving Guillain-Barre claims]. Secretary
Califano's statement did not have that effect." Memorandum
of the United States in Support of Its Motion for Reconsider-
ation and to Vacate the Opinion and Order Filed October C
31, 1978 at 3. The United States contends that the Panel
misconstrued the scope of the remaining common factual
issues in the MDL-330 proceedings in its opinion and
order of October 31, 1978. The United States urges the
Panel to vacate that opinion and to continue to transfer
actions involving Guillain-Barre claims.
We note initially that there is now some uncertainty
as to how many of the actions in this litigation involve
Guillain-Barre claims. The United States has stated
that it may contest allegations that a particular injury
®

: - Case MDL No. 330 Document 2 Filed 05/05/15 Page 44 of 50
® was Guillain-Barre Syndrome. In addition to the complaints
which specifically allege Guillain-Barre Syndrome, a
number of complaints allege loss of sensation or paralysis
in general, or other neurological disorders which caused
varying degrees of loss of sensation or paralysis. It
is possible that some of these alleged disorders may
later be found to be Guillain-Barre Syndrome. Moreover,
a number of the complaints which include allegations
of Guillain-Barre Syndrome allege other types of injury
as well. We find that, among all MDL-330 actions poten-
tially involving Guillain-Barre claims, key common:
questions of fact exist concerning what, in fact, constitutes
o Guillian-Barre Syndrome.
With respect to the actions which ultimately are
found, or conceded, to involve Guillain-Barre claims,
we find the record before us unclear as to whether the
Secretary's statement has removed the issue of liability
from those claims. The plaintiffs' steering committee
for MDL-330 represents in a brief before the Panel that
the United States 'has declined to reduce [the Secretary's]
announcement to the terms of a binding stipulation, as
heretofore suggested by [Judge] Gesell, the transferee
judge." Opposition to Motions to Vacate [Conditional
Transfer Orders] at 2. Moreover, as noted above, the
®

Case MDL No. 330 Document2 Filed 05/05/15 Page 45 of 50 . :
- 10 -
United States in its brief in support of the motion for C
reconsideration denies that the Secretary's statement
has removed the issue of liability from MDL-330 actions
involving Guillain-Barre claims. Indeed, the very question
of what effect the Secretary's statement has upon the
MDL-330 actions has become an issue in this litigation,
and that issue can most efficiently be handled by the
© transferee judge in a uniform fashion in the course of
the centralized pretrial proceedings.
In a statement filed in the transferee court, the
United States has specified as follows: 'In all cases,
the United States will admit that Guillain-Barre can
result from administration of the Swine Flu vaccine, Cbut the United States may contest that a particular
injury... was contracted from the administration of the
vaccine." Statement of the United States Concerning
Litigation Procedure in Cases Arising Out of the Swine
Flu Program at 3. The issue of causation of Guillain-Barre
Syndrome from administration of a swine flu vaccination
is a common thread which runs through all swine flu actions
involving Guillain-Barre claims. Although the issue
of causation surely raises questions of fact individual
to each action involving Guillain-Barre claims, we are
now persuaded that the issue of causation in those actions
also raises common questions of fact concerning the scope
®

: - Case MDL No. 330 Document2 Filed 05/05/15 Page 46 of 50
- 11 -
@® and manner by which administration of a swine flu vaccina-
tion can cause Guillain-Barre Syndrome. This conclusion
is augmented by the fact that over 200 swine flu actions
involving Guillain-Barre claims are presently pending
in federal court and that more of these actions are antici-
pated. See In re Swine Flu Immunization Products Liability
Litigation, supra, 446 F. Supp. at 246 n. 3.
Thus, we are of the opinion, on the basis of the
record presently before us, that continued supervision
by the transferee judge, who is familiar with the nuances
of this litigation, of all swine flu actions involving
Guillain-Barre claims is necessary to promote the efficient
C judicial administration of these claims.We note that Judge Gesell, at any time he considers
it appropriate, can recommend to the Panel that the Panel
remand any action or separable claim in which the common
pretrial proceedings have been completed and which would
no longer benefit from inclusion in the coordinated or
consolidated pretrial proceedings. 28 U.S.C. §1407(a);
Rule 11l(c¢)(ii), R.P.J.P.M.L., supra, 78 F.R.D. at 569.
See, e.g., In re A. H. Robins Co., Inc. "Dalkon Shield"
IUD Products Liability Litigation, 453 F. Supp. 108 (J.P.M.L.
1978). Judge Gesell, as the transferee judge, is the
firsthand judicial observer of these actions, and therefore
the Panel would be greatly influenced by his suggestion
® that remand of any action or separable claim is appropriate.
See id. at 110.

Case MDL No. 330 Document2 Filed 05/05/15 Page 47 of 50 : -
- 12 =
B. Moseley C
Plaintiff in Moseley states that a related action
arising from the death of his wife is pending in California
state court against the physicians and facilities which
undertook the care and treatment of his wife during the
period between her receipt of a swine flu vaccination
on November 14, 1976 and her death on November 19, 1976. |
Plaintiff asserts that identical discovery concerning
the properties of the swine flu vaccine will be necessary
in both the state and federal court actions. Plaintiff
contends that transfer of Moseley to the District of
the District of Columbia would impose an unfair burden
on him because it would require him to duplicate these Cidentical discovery proceedings in two distant forums.
We find these arguments unpersuasive. Plaintiff
in Moseley does not deny that Moseley involves common
questions of fact with the actions in the transferee
district. For the reasons stated in our first two opinions
in this litigation, we find that Moseley involves common
questions of fact with the actions in the transferee
district and that transfer of Moseley is appropriate.
In re Swine Flu Immunization Products Liability Litigation,
supra, 446 F. Supp. at 246-47; 453 F. Supp. at 649-50.
The concern of plaintiff in Moseley that transfer
will result in duplicative discovery efforts and hardship
®

. : Case MDL No. 330 Document 2 Filed 05/05/15 Page 48 of 50
C is unwarranted. The judicious use by the parties in
all MDL-330 actions of liaison counsel, lead counsel
and steering committees will eliminate the need for most
counsel ever to travel to the transferee district. See
Manual for Complex Litigation, Part I, §§1.90-1.93 (rev.
ed. 1977). Furthermore, witnesses will likely be deposed
in proximity to where they reside and, since transfer
pursuant to Section 1407 is for pretrial proceedings
only, there is usually no need for the parties and witnesses
to travel to the transferee district for depositions
or otherwise. See, e.g., Fed.R.Civ.P. 45 (d)(2). In
addition, the transferee judge has procedures available
C through which appropriate discovery already completedin earlier actions can be made applicable to Moseley,
see Manual for Complex Litigation, supra, Parts I and
IT, §§3.11. Also, because plaintiff in Moseley and other
plaintiffs in the transferee district have similar interests,
the plaintiffs will be able to pool their efforts and
resources. Hence, plaintiff in Moseley will probably
experience a net savings of cost and effort as a result
of transfer.
We observe that certain measures could be taken
by plaintiff in Moseley to avoid duplication of effort
between his federal and state court actions. For example,
plaintiff could seek to agree on a stipulation with de-
C fendants that discovery schedules will be coordinated

: : Case MDL No. 330 Document 2 Filed 05/05/15 Page 49 of 50 : .
in both actions and that all relevant discovery could ®be used in each action. See, e.g., The Union Light, Heat
& Power Co. v. United States District Court, F.2d
(6th Cir., filed December 6, 1978) (No. 78-3442).
IT IS THEREFORE ORDERED that the motion for reconsider-
ation of the Panel's October 31, 1978 opinion and order
denying transfer under 28 U.S.C. §1407 with respect to
the actions entitled Jerry L. and Betty Porter v. United
States of America, et al., N.D. Ohio, C.A.No. C78-195,
and Garrett E. Winter v. United States of America, et
al., N.D. California, C.A. No. C78-1179-SC, be, and the
same hereby is, GRANTED; that the opinion dated October 31,
1978 be, and the same hereby is, VACATED; and that the
actions entitled Jerry L. and Betty Porter v. United ®
States of America, et al., N.D. Ohio, C.A. No. C78-195,
and Garrett E. Winter v. United States of America, et
al., N.D. California, C.A. No. C78-1179-SC, be, and the
same hereby are, transferred to the District of the District
of Columbia and, with the consent of that court, assigned
to the Honorable Gerhard A. Gesell for inclusion in the
coordinated or consolidated pretrial proceedings occurring
there.
®

oo. Case MDL No. 330 Document 2 Filed 05/05/15 Page 50 of 50
C IT IS FURTHER ORDERED that the actions entitledMargaret M. Goldstein wv. United States of America, E.D.
Pennsylvania, C.A. No. 78-2524, and John D. Moseley,
etc. v. United States of America, E.D. California, C.A.
No. S-78-411-PCW, be, and the same hereby are, trans-
ferred to the District of the District of Columbia and,
with the consent of that court, assigned to the Honorable
Gerhard A. Gesell for inclusion in the coordinated or
consolidated pretrial proceedings occurring there.
®
®