IN RE: Liquid Carbonic Truck Drivers Chemical Poisoning Litigation

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BEFORE THE JUDICIAL PANEL CTA
MULTIDISTRICT LITIGATION tI 30 07s
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IN RE LIQUID CARBONIC TRUCK DRIVERS ) Claritin.
CHEMICAL POISONING LITIGATION ) DOCKET "NO. 252
OPINION AND ORDER
BEFORE JOHN MINOR WISDOM, CHAIRMAN, AND EDWARD WEINFELD, EDWIN
A. ROBSON, WILLIAM H. BECKER*, JOSEPH S. LORD, III*, STANLEY A.
WEIGEL, AND ANDREW A. CAFFREY*, JUDGES OF THE PANEL
PER CURIAM
This litigation consists of 35 actions pending in three
districts: twenty-one in the Eastern District of Louisiana; eight
in the Southern District of West Virginia; and six in the Western
1/ i
District of Louisiana.
® Plaintiffs in these actions, with one exception, are
several truck drivers formerly or presently employed by Liquid
Carbonic Corporation who allege that they suffered chemical
poisoning while hauling liquid carbon monoxide from Liquid
Carbonic's Geisman, Louisiana, plant to various chemical
plants. in the Eastern, Southern and Southwestern United States.
*/ Judges Becker, Lord, and Caffrey were unable to attend the
Panel hearing and, therefore, did not participate in the considera-
tion or decision of this matter.
1/ Hereinafter, twelve of the actions pending in the Eastern
District of Louisiana are referred to as Strain, nine of the
actions pending in that district are referred to as Frierson,
the actions pending in the Southern District of West Virginia are
referred to as Union Carbide, and the Western District of Louisiana
actions are referred to as Olin. ]

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® A former dispatcher at Liquid Carbonic's New Orleans shipping
terminal is the other claimant and he also alleges that he suffered
chemical poisoning from exposure to liguid carbon monoxide.
Defendants include several executive officers of Liquid Carbonic,
the chemical companies at whose plants most of the deliveries
were made, and the manufacturer of the trailers in which the
liquid carbon monoxide was hauled. The complaints charge defendants
with violations of the National Highway Safety Act; the laws
governing interstate transportation and storage of toxic and
hazardous substances; the Occupational Safety and Health Act
and regulations promulgated thereunder; and various state laws.
Shortly after the Strain actions were filed, the court
C dismissed two of the chemical companies, Clin Corporation and
Union Carbide Corporation, for improper venue. Several of the
plaintiffs in Strain thereafter filed actions against Clin in
the Western District of Louisiana and Union Carbide in the
Southern District of West Virginia. The complaints in these
actions are virtually identical to Strain. At the hearing on
this matter, counsel for Olin advised the Panel that Olin intends
to withdraw its venue objection in the Eastern District of
Louisiana, consent to be rejoined as a defendant there, and
move to dismiss the Q0lin actions in the Western District of
Louisiana. Transcript at 10. Apparently these actions have
not yet been dismissed, however.
®

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® Prior to the filing of Strain, Olin and Union carbide,
many of the Strain plaintiffs initiated the Frierson actions in
the Eastern District of Louisiana against Liquid Carbonic, its
group hospitalization and disability insurer, and others. These
actions have been consolidated and involve a variety of claims
under the hospitalization and disability insurance policy, a
contractual wage arrangement with Liquid Carbonic, the Civil
Rights Act, and the Fair Credit Reporting Act. Claims involving
holiday and vacation pay and the alleged firing of certain plain-
tiffs are also asserted.
Nine of the thirteen plaintiffs in total jointly move
the Panel for an order transferring Olin and Union Carbide to
(] the Eastern District of Louisiana for coordinated or consolidated
pretrial proceedings pursuant to 28 U.S.C. §1407 with the Strain
and Frierson actions. Movants suggest the Western District of
Louisiana as the transferee district in the alternative. Most
responding parties favor transfer of Qlin to the Eastern District
of Louisiana, but object to the inclusion of the Frierson actions
in Section 1407 proceedings. Only defendant Union Carbide opposes
transfer of Union Carbide. And all responding parties urge the
Eastern, and not Western, District of Louisiana as the transferee
forum, except Union Carbide which does not comment on the issue
of an appropriate transferee forum.
®

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® We find that the 0lin and Union Carbide actions share
common questions of fact with the Strain actions and that
transfer of Olin and Union Carbide to the Eastern District of
Louisiana for coordinated or consolidated pretrial proceedings
under Section 1407 with Strain will best serve the convenience
of the parties and witnesses and promote the just and efficient
conduct of the litigation. We make no determination with
regard to the propriety of including the Frierson actions in the
coordinated or consolidated pretrial proceedings.
All parties agree, and we concur, that Strain, Olin
and Union Carbide involve common factual issues relating to the
causation of plaintiffs' injuries and the liability of all
@ defendants. Thus, transfer of these actions to a single
district under Section 1407 will prevent duplication of discovery
and eliminate the possibility of conflicting pretrial rulings.
See In re Radiation Incident at Washington, D.C. on April 5, 1974,
400 F. Supp. 1404, 1406 (J.P.M.L. 1975).
Union Carbide opposes transfer of the actions pending
against it solely on the ground that once the discovery process
has been completed these actions will proceed to trial more
expeditiously in West Virginia than in Louisiana. The respondents
objecting to the Panel's inclusion of Frierson in any coordinated
or consolidated pretrial proceedings contend that Frierson
involves numerous factual and legal questions not raised in
® Strain, Olin and Union Carbide, and point out that Frierson also

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® includes additional defendants. They also stress that discovery
in Frierson is more advanced than discovery in the other actions.
Three respondents, however, argue that since the Frierson actions
already are pending in the Eastern District of Louisiana, any
question of their coordination or consolidation with the other
actions in this litigation is a matter to be considered by the
transferee court rather than the Panel.
Union Carbide's objection to transfer is wholly without
merit and apparently based on a misunderstanding of Section 1407.
Transfer pursuant to Section 1407 relates only to the conduct of
ccordinated or consolidated pretrial proceedings. 28 U.S.C.
§1407(a). At or before the completion of these pretrial pro-
C ceedings, the Union Carbide actions will in all likelihood be
remanded toc the Southern District of West Virginia for trial.
See Rule 11, R.P.J.P.M.L., 65 F.R.D. 253, 260-63 (1975). Indeed,
the Louisiana court has alrsady ruled that venue regarding Union
Carbide is improper in the Eastern District of Louisiana. (Cf.
Pfizer, Inc. v. Lord, 447 F.2d 122 (24 Cir. 1971).
Since the Frierson actions would be pending before the
transferee court regardless of the transfer we are herewith
ordering, we believe that the question of whether these actions
should be included in the coordinated or consolidated pretrial
proceedings is more properly left to the discretion of the
transferee judge. See In re National Airlines, Inc. Maternity
® Leave Practices and Flight Attendant Weight Program Litigation,

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® 399 F. Supp. 1405, 1407 (J.P.M.L. 1975). See also In re Grain
Shipments, 305 F. Supp. 3, 4 (J.P.M.L. 1969); Rule 10(a),
R.P.J.P.M.L., 65 F.R.D. 253, 260 (1975).
We agree that the Eastern District of Louisiana is
the most appropriate transferee forum for this litigation.
More actions are pending in this district than in any other.
And since the shipments were made from the New Orleans area,
many of the relevant documents and witnesses are located there.
See In re Radiation Incident at Washington, D.C. on April 5,
1974, supra, 400 F. Supp. at 406-07.
IT IS THEREFORE ORDERED that the actions listed on the
following Schedule A and pending in districts other than the
® Eastern District of Louisiana be, and the same hereby are, trans-
ferred to the Eastern District of Louisiana and, with the consent
of that court, assigned to the Honorable Morey L. Sear for
coordinated or consolidated pretrial proceedings pursuant to
28 U.S.C. §1407 with the actions already pending there and
listed on schedule A.
IT IS FURTHER ORDERED that no determination under 28
U.S.C. §1407 is hereby made regarding the actions listed on
the following Schedule B and pending in the Eastern District
of Louisiana.
®

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® SCHEDULE A
DOCKET NO. 252 —-- IN RE LIQUID CARBONIC TRUCK DRIVERS CHEMICAL
POISONING LITIGATION
EASTERN DISTRICT OF LOUISIANA
Lenny Strain v, Kenneth Turner, et al. Civil Action
No. 73-3139-H
Rodney J. Strain v. Kenneth Turner, et al. Civil Action
No. 74-2363-H
Charles J. Strain v. Kenneth Turner, et al. Civil Action
No. 74-2364-H
Roger Moran v. Kenneth Turner, et al. Civil Action
No. 74-2365-H
Alvin Frierson v. Kenneth Turner, et al. Civil Action
No. 74-2366-H
] Marvin Brown v. Kenneth Turner, et al. Civil Action	No. 74-2367-H
Carl Martin v. Kenneth Turner, et al. Civil Action
No. 74-2368-H
Dennis Morris v. Kenneth Turner, et al. Civil Action
No. 74-2452-H
Richard Lamousin v. Kenneth Turner, et al. Civil Action
No. 2579-H
Vernon Ghersanich v. Kenneth Turner, et al. Civil Action
No. 75-1502-H
Tyrone Charbonnet v. Kenneth Turner, et al. Civil Action
No. 75-745-H
Raymond Ghersanich and Frank Voss v. Kenneth Civil Action
Turner, et al. No. 75-1802-H

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Schedule A -- MDL-252 -- p. 2
® WES TERN DISTRICT OF LOUISIANA
Charles J. Strain, Jr. v. Olin Corp. Civil Action
No. 75-1337
Carl R. Martin v. Olin Corp. Civil Action
No. 75-1334
Dennis Morris, Sr. v. Olin Corp. Civil Action
No. 75-1338
Marvin Brown v. 0lin Corp. Civil Action
No. 75-1336
Alvin W. Frierson v. Olin Corp. Civil Action
: No. 75-1339
Rodney J. Strain v. Olin Corp. Civil Action
No. 75-1335
® SOUTHERN DISTRICT OF WEST VIRGINIA
Carl R. Martin v. Union Carbide Corp. Civil Action
No. 75-0832-CH
Dennis Morris, Sr. v. Olin Corp. Civil Action
No. 75-0835-CH
Richard Lamousin v. Union Carbide Corp. Civil Action
No. 75-0831-CH
Alvin W. Frierson v. Union Carbide Corp. Civil Action
No. 75-0837-CH
Rodney J. Strain v. Union Carbide Corp. Civil Action
No. 75-0836-CH
Marvin Brown v. Union Carbide Corp. Civil Action
No. 75-0838-CH
Roger Moran v. Union Carbide Corp. Civil Action
® No. 75-0834-CHCharles J. Strain, Jr. v. Union Carbide Corp. Civil Action
No. 75-0833-CH
—

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® SCHEDULE B
DOCKET NO. 252 -- IN RE LIQUID CARBONIC TRUCK DRIVERS CHEMICAL
POISONING LITIGATION
EASTERN DISTRICT OF LOUISIANA
Alvin Frierson v. Liquid Carbonic Corp., Civil Action
et al. No. 74-2329-F
Charles J. Strain v. Liquid Carbonic Corp., Civil Action
et al. No. 74-2330-F
Rodney J. Strain v. Liguid Carbonic Corp., Civil Action
et al. No. 74-2331-F
Lenny J. Strain v. Liguid Carbonic Corp., et al. Civil Action
No. 74-3278-F
Roger Moran v. Liquid Carbonic Corp., et al. Civil Action
No. 74-3279-F
Richard Lamousin v. Liguid Carbonic Corp., Civil Action
Carl Martin v. Liquid Carbonic Corp., et al. Civil Action
No. 74-3281-F
Dennis Morris v. Liquid Carbonic Corp., Civil Action
et al. No. 74-3282-F
Marvin Brown v. Liguid Carbonic Corp., et al. Civil Action
] No. 74-3283-F