IN RE: Chiropractic Antitrust Litigation

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4 BEFORE THE JUDICIAL PANEL
ON
5 MULTIDISTRICT LITIGATION
6 IN RE CHIROPRACTIC ANTITRUST LITIGATION ) DOCKET NO. 402
: OPINION AND ORDER
7 ee
8 BEFORE MURRAY I. GURFEIN,* CHAIRMAN, AND ANDREW A. CAFFREY,
ROY W. HARPER, CHARLES R. WEINER, EDWARD S. NORTHROP, AND
9 ROBERT H. SCHNACKE, JUDGES OF THE PANEL.
PER CURIAM
10
This litigation consists of four actions pending in
11
four federal districts: one each in the Northern District
12
of Illinois, Eastern District of Pennsylvania, Eastern
C District of New York and Southern District of Iowa. |
® 14 The complaint in each of the four actions alleges
15 that certain physician and hospital associations, inter
16 alia, have engaged in a national conspiracy to boycott
17 or refuse to deal with chiropractors and to monopolize
health care in violation of the federal antitrust laws. |
18
Each complaint charges, inter alia, that chiropractors
19
are unable to secure the services of medical physicians
20 to serve as adjuncts to their chiropractic practice in
21 | performing x-rays or lab tests. Only one defendant is
22 now common to all four actions. Three other parties that
23 were defendants in all four actions have settled the claims
o against them in the Pennsylvania action. Seven other parties
| are named as defendants in two actions.0 * Judge Gurfein took no part in the decision of this matter.
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1 The Illinois action was filed in 1976 by five individual ®
2 chiropractors from five different states (Illinois, Michigan,
3 Missouri, Colorado and California). The complaint seeks
4 both an injunction and treble damages. Discovery is far
advanced in this action. More than one hundred thousand
° documents have been produced and more than one hundred
© persons have been deposed.
7 The Pennsylvania action was filed in 1977 by one chiroprac- |
8 tor and the Pennsylvania Chiropractic Society on behalf
9 of a statewide class of licensed chiropractors, and the district
10 court has granted a motion for certification of that class.
11 Plaintiffs pray for injunctive relief only. The claims |
12 against seven of the nine defendants in this action have |
been settled. Some discovery has occurred. C
13 The New York action was filed in 1979 by the State °14 of New York through its attorney general. The complaint
15 contains a prayer for injunctive relief and a pendent claim
16 for fines pursuant to a New York statute. Only limited |
17 discovery has taken place. On September 5, 1979, the State
18 of New York sought to intervene in the Illinois action
19 solely for the purpose of gaining access to certain discovery.
The court deferred decision on New York's motion pending
2 resolution by the Panel of the present motion.
21 The Iowa action was filed in 1979 by the state chiro-
22 practic society on behalf of 150 individual chiropractors.
23 | The complaint seeks not only an injunction, but also damages	24 | based on antitrust, civil rights and common law tort or @
25 | No discovery has taken place in this action. ®
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@: Numerous defendants have moved, or joined in motions,2 to centralize all actions in this litigation in the Northern
® 3 District of Illinois pursuant to 28 U.S.C. §1407 for coordinated
4 or consolidated pretrial proceedings.
Opposed to transfer are the plaintiffs in the Pennsyl-
° vania, New York and Iowa actions and certain defendants
© involved in only the New York and Iowa actions, respectively.
7 We conclude that transfer under Section 1407 would
8 not necessarily serve the convenience of the parties and
9 witnesses or promote the just and efficient conduct of
10 the litigation. Accordingly, we deny the motion to transfer.
11 While movants acknowledge that there may be some unique
) factual issues involved in each of the four actions because
® of specific claims of injury and some aspects of relief |
® 13 sought, movants argue that common questions of fact clearly14 predominate in this litigation. Central to each action,
15 movants contend, will be discovery concerning the same alleged
16 national conspiracy by medical organizations to criticize
17 chiropractic and discourage the use of chiropractors by
18 physicians and by the public. Common factual questions
19 pertaining to this alleged conspiracy, movants maintain,
involve, inter alia, "what chiropractic is, whether chiro-
20 practic is beneficial and efficacious, and what the valid
21 distinctions are between chiropractic and the "orthodox"
22 practice of medicine." Movants assert that many identical
23 witnesses will be involved in each action concerning the common
0. questions of fact and that Section 1407 proceedings are
® 25 | necessary in order to avoid duplication of discovery, preventI |
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1 conflicting pretrial rulings, and conserve the efforts ®2 of the parties and the judiciary.
3 We find these arguments unpersuasive. While the parties |
4 before us dispute the status of discovery in the Illinois
5 action, the Panel is advised that on October 1, 1979, the :
Honorable James T. Balog, Magistrate, ruled that all discovery
© in the Illinois action is to be completed on or before
7 January 29, 1980. The magistrate also ruled that the discovery
8 cutoff date would be reconsidered only if additional actions
2 are consolidated before the court in the Northern District
10 of Illinois. A motion to vacate these rulings has been
11 continued by the district court pending the Panel's ruling
12 on the transfer motion. Thus, on the basis of the record |
before us, discovery in the Illinois action is near conprecion §)
to and inclusion of this action in centralized pretrial proceedings
14 could delay the termination of that action without producing
15 any overriding benefit to the litigation as a whole. See
16 In re Celotex Corporation "Technifoam" Products Liability |
17 Litigation, 68 F.R.D. 502, 505 (J.P.M.L. 1975). Similarly,
18 a class determination has been made in the Pennsylvania |
19 action, and the claims against seven of the nine defendants
20 in that action have been settled. We are therefore reluctant
to transfer the Pennsylvania action because the orderly
21 progress achieved thus far in that action might be disrupted. J
22 Only two other actions are involved here. And, although
23 we recognize the existence of common questions of fact C	24 between these two actions, movants have not met their burden
25 i
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C of convincing us that these common factual questions are| 2 sufficiently complex or that the accompanying discovery
® 3 will be so time consuming as to justify transfer under
4 Section 1407, especially since much of the relevant discovery
has already occurred in the Illinois action. See In re
° Scotch Whiskey, 299 F. Supp. 543, 544 (J.P.M.L. 1969).
© We observe that suitable alternatives to Section 1407
7 transfer are available in order to minimize the possibility
8 of duplicative discovery. For example, the parties may
9 request from the appropriate district courts that discovery
10 completed in any action and relevant to one or more of
11 the other actions be made applicable to those actions;
or the parties could seek to agree upon a stipulation that
® any discovery relevant to more than one action may be used
® in all those actions. See also In re The Upjohn Company
14 Antibiotic Cleocin Products Liability Litigation, 81 F.R.D.
15 482 (E.D. Mich. 1979); Manual for Complex Litigation, Parts I
16 and II, §§3.11 (rev. ed. 1977). Also, consultation
17 and cooperation among the four concerned district courts,
18 if deemed appropriate by those courts, coupled with the |
19 cooperation of the parties, would minimize the possibility
20 of conflicting pretrial rulings. See In re Raymond Lee
Organization Inc. Securities Litigation, 446 F. Supp. 1266,
21
1268 (J.P.M.L. 1978).
22 IT IS THEREFORE ORDERED that the motion pursuant to
23 28 U.S.C. §1407 to transfer the actions listed on the following
C Schedule A be, and the same hereby is, DENIED.
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C DOCKET NO. 4022 Schedule A.
® 3 NORTHERN DISTRICT OF ILLINOIS
4 Chester A. Wilk, D.C., et al. v. American Civil Action No.
5 Medical Association, et al. 76 C 3777
6 EASTERN DISTRICT OF PENNSYLVANIA
John K. Slavek, D.C., etc. v. American Civil Action No.
7 Medical Association, et al. 77-1726
8 EASTERN DISTRICT OF NEW YORK
The State of New York v. American Medicial Civil Action No.
9 Association, et al. 77-C=1732
10 SOUTHERN DISTRICT OF TOWA
11 Health Care Equalization Committee of the Civil Action No.
Iowa Chiropractic Society, etc. v. Iowa 79-381-A
12 Medical Society, et al.
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