IN RE: Dow Chemical Co. "Polystyrene Foam" Products Liability Litigation

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Case MDL No. 275 Document 2 Filed 05/05/15 Page 1 of 4 f
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BEFORE THE JUDICIAL PANEL Te rid SERRE
MULTIDISTRICT LITIGATION APR 1g p. Lo
IN RE DOW CHEMICAL CO. ) DOCKET YEE on Co
"POLYSTYRENE FOAM" ) F THE yp EEE
PRODUCTS LIABILITY LITIGATION ) : & 24) 77
OPINION AND ORDER
BEFORE JOHN MINOR WISDOM, CHAIRMAN, AND EDWARD WEINFELD, SIRENS OE
EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH S. LORD, III, Co RE
STANLEY A. WEIGEL, AND ANDREW A. CAFFREY*, JUDGES OF THE . : ACERT
PANEL. Coe Te
PER CURIAM
a This litigation consists of four actions pending in
two federal districts: three in the District of oo -
Minnesota and one in the Western District of Wisconsin. All :
the actions involve the alleged fire hazards of a cellular :
plastic insulation material known as "Styrofoam" which is
manufactured by Dow Chemical Co. The actions arise from the |
use of "Styrofoam" as insulation in various agricultural . :
buildings. Plaintiffs in two of the Minnesota actions
and the Wisconsin action allege that they have suffered SEE
fire losses and structural damages in their buildings Ca
because of the flammability of "Styrofoam." The plaintiffs
in the third Minnesota action, Meierhofer, allege only
*Judge Caffrey recused himself from participation in the :
consideration or decision of this matter.

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® structural damages attributable to the flammability of the
| "Styrofoam" in their buildings. Dow Chemical is the sole
defendant in all the actions. The plaintiffs rely on
theories of strict liability; negligence in development,
testing, manufacturing, and marketing of "Styrofoam;" :
breach of express and implied warranties; fraudulent mis-
representation; and failure to warn of the flammability
of "Styrofoam."
Plaintiffs in each action move the Panel pursuant.to
28 U.S.C. §1407 to transfer the action pending in the
Western District of Wisconsin to the District of Minnesota
for coordinated or consolidated pretrial proceedings with
the three actions pending in that district. Defendant Dow
® Chemical opposes transfer. We find that transfer of these
actions would not necessarily serve the overall convenience
of the parties and witnesses or promote the just and efficient
conduct of this litigation. Accordingly we deny transfer.
Plaintiffs contend that transfer is appropriate in this
| litigation because the actions share questions of fact con-
cerning the flammability of "Styrofoam," Dow's knowledge of
that flammability, Dow's disclosure of that knowledge to users,
the adequacy of testing, and Dow's marketing practices.
Plaintiffs argue that transfer is warranted for the.
same reasons that transfer was ordered in In re Celotex
Corporation "Technifoam" Products Liability Litigation,
PY

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9 68 F.R.D. 502 (J.P.M.L. 1975). The actions in that liti-
gation involved the alleged fire and related hazards of
certain cellular plastic insulation products generally
“known as "Technifoam" and manufactured by the Celotex :
Corporation. |
Discovery on the common guesticns of fact in-
volved here, however, apparently has been completed,
and the parties have entered into a stipulation whereby this
discovery may be made applicable to all four aetions. |
Transcript at 5 and 9. Indeed, plaintiffs concede that the
only common matters left to be accomplished in these actions
are questions of law. Transcript at 12-13. Thus, any need
for transfer under Section 1407 has been obviated.	Compare In re
® Celotex Corporation "Technifoam" Products Liability Litigation,
supra, 68 F.R.D. at 505 (discovery in one action completed) with
| In re Fotomat Franchisee Litigation, 394 F. Supp. 798, 799
(J.P.M.L. 1975) (voluntary cooperation among the parties).
IT IS THEREFORE ORDERED that transfer pursuant to 28 |
U.S.C. §1407 of the actions listed on the following Schedule A
be, and the same hereby is, DENIED.
®

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® SCHEDULE AEe DOCKET NO. 275
DISTRICT OF MINNESOTA
Gene Meierhofer, et al. v. The Dow Civil Action No.
Chemical Co. 4-74-454
Stanley Block, et al. v. The Dow Civil Action No.
Chemical Co. 4-74-609
Leonard B. Doucette, et ux. v. The Dow Civil Action No.
Chemical Co. -4-76-233
WESTERN DISTRICT OF WISCONSIN
Philip L. Fliflet v. The Dow Chemical Co. Civil Action No.
76-C-474