1:77-F-00330•IN RE: Swine Flu Immunization Products Liability Litigation
IN RE: Swine Flu Immunization Products Liability Litigation
1:77-F-00330Jpml5 mai 2015
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- 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 ‘ : - 6 - 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. ® ®
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