IN RE: Boncoat Products Liability Litigation

Case MDL No. 117 Document 2 Filed 04/30/15 Page 1 of 6
: : MUTE ei Co _
BEFORE THE JUDICIAL PANEL SE .
ON Fro : Coe
MULTIDISTRICT LITIGATION Se=2 1973 EE
IN RE BONCOAT PRODUCTS ) | ey ARTA:
LIABILITY LITIGATION ) DOCKET NO. "117... |
. . * }
OPINION AND ORDER IH )p" iS
BEFORE ALFRED P. MURRAH *, CHAIRMAN, AND JOHN MINOR WISDOM, I
EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, Vo :
JOSEPH S. LORD, III, AND STANLEY A. WEIGEL, JUDGES OF THE PANEL Cn Lo
PER CURIAM
Martin Marietta Corporation, a defendant in an action ~
in the Western District of Missouri and a third-party defendant Cn ;
in an action in the Eastern District of North Carolina, moves Co a
for the transfer of the Missouri action to North Carolina. Fe >
We find that there are insufficient common questions of fact oo
"raised by the two actions to make coordinated or consolidated a
pretrial proceedings necessary for the convenience of the parties Co
and witnesses or for the just and efficient conduct of the : Go
litigation. Ce a
During the years 1970 and 1971 Martin Marietta sold oo Bx
magnesium oxide to M & D Enterprises, Inc., for use in the SEE
manufacture of "Boncoat", a cement-like product designed for |
application to the exterior surfaces of buildings. It appears
that some of M & D's customers complained about the results oo
obtained with "Boncoat" purchased during this period, allegedly : oo
seeking price adjustments, removal, replacement and other relief. . R
* Although Judge Murrah was not present at the hearing,
he has, with the consent of all parties, participated in
this decision.

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¢ -
M & D has filed suit in the Western District of Missouri
against Martin Marietta, alleging that Martin Marietta supplied
defective magnesium oxide which is responsible for the difficulties
encountered by the complaining "Boncoat" purchasers. M & D seeks
recovery of the amount of damages suffered by it as a result of
these defects. More specifically, M & D alleges that it has and will
suffer lost profits and business,damage to its reputation and
costs and expenses in the removal and replacement of "Boncoat"
and in price adjustments to customers. YY
The second suit was brought later by Burroughs Wellcome
Co. in the Eastern District of North Carolina. Burroughs con-
tracted for the construction of its corporate headquarters in
® North Carolina and the exterior surface of the completed building
was finished with "Boncoat", applied by a subcontractor. Burroughs
alleges that application of the "Boncoat" resulted in erosion and
other damage to its building and seeks to recover the amount of
those damages from its architect, its general contractor, the sub-
contractor who applied the "Boncoat" and M & D. In that action,
M & D asserts a third-party claim against Martin Marietta for
indemnification or, alternatively, contribution by reason of
the allegedly defective magnesium oxide supplied.
In addition, various other cross-claims and counterclaims
are asserted in the North Carolina action. The architect and
general contractor cross-claim against each other and the
1/ Martin Marietta has moved for the transfer of this action
C to the Eastern District of North Carolina pursuant to 28 Uu.s.cC.	§1404 (a). That motion has not been argued and it is being
held in abeyance pending our decision under 28 U.S.C. §1407.

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. 2remaining two defendants for indemnification. And the subcon-
tractor counterclaims against Burroughs and cross-claims against
the general contractor for additional work done on the building
and cross-claims against the other two defendants for indemnifi-
cation.
There are obviously substantial differences in the
factual issues raised in the two actions. In opposing transfer,
both M & D and Burroughs emphasize the wide range of factual
matters which are relevant only to the North Carolina suit.
For example, Burroughs' claim against the general contractor
raises the question of the meaning and effect of the contract
between those two parties while its claim against the architect
® raises the issue of negligence and conformity with professional
standards in the design and specifications for the building.
" Discovery and pretrial proceedings on these issues would be
of little value to M & D and Martin Marietta in the litigation
of their dispute.
It is only the third-party action in North Carolina
which raises any issues of fact common to the Missouri case
and those common issues are extremely limited. Martin Marietta
asserts that any damages M & D might be required to pay Burroughs
Wellcome in North Carolina would be the subject of the third-
party action in North Carolina as well as a substantial part
of the total damages sought in Missouri. While not denying
the possibility of such an overlap in the damages sought,
® M & D argues that it has paid more than twenty claims relating to
allegedly defective "Boncoat" and denies that the indemnification

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. which it seeks from Martin Marietta in North Carolina could be
a substantial part of the damages sought from that party in Missouri.
The differences between the cases are further emphasized
by the fact that the Missouri action arises out of M & D's purchases
of magnesium oxide over a twenty-month period. During that time
it appears that Martin Marietta made twenty separate shipments
to M & D, that many separate batches of "Boncoat" were produced
and that many separate applications of the product were made
to different buildings by different persons under different
conditions. The application to the Burroughs Wellcome building
is apparently only one of more than twenty which has resulted
in complaints. Although Martin Marietta may be correct in suggest-
® ing that the general question of the defectiveness of its magnes-
ium oxide will be common to both the Missouri and North Carolina
"cases, the resolution of that general question will turn on largely
individual sets of facts for each claim paid by M & D.
A more appropriate solution to the possibility of
repetitive discovery in this litigation would be a stipulation
among the parties providing for the taking of depositions of
common witnesses before representatives of all parties in both
actions and the use of the resulting depositions in either action.
At the hearing on this matter counsel for Martin Marietta indi-
cated that such a stipulation would be agreeable to him and
it appears that the agreement of the other parties might be
obtained.
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Case MDL No. 117 Document2 Filed 04/30/15 Page	5 of 6
IT IS THEREFORE ORDERED that the motion of Martin
Marietta Corp. for the transfer and pretrial coordination
of the actions listed on the attached Schedule A, pursuant to
28 U.S.C. §1407, be, and the same hereby is, DENIED.
®
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SCHEDULE A DOCKET NO. 117
WESTERN DISTRICT OF MISSOURI
M & D Enterprises, Inc., d/b/a
M & D Corporation v. Martin Marietta Civil Action
Corp. No. 2854
EASTERN DISTRICT OF NORTH CAROLINA
Burroughs Wellcome Co. v. Daniel Civil Action
Construction Co., Inc., et al. No. 3036