IN RE: American Home Products Corp. "Released Value " Claims Litigation

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BEFORE THE JUDICIAL PANEL CIAL PANEL 5 : RR	ON SULTS TRIpY iE8 ON en
MULTIDISTRICT LITIGATION Fao TeATIgy SUE2,223
IN RE AMERICAN HOME PRODUCTS |] AR 10 | ry! coCORP. "RELEASED VALUE" CLAIMS | PATRI 78 V/A} Sa
LITIGATION ] DOCKET NCLERR IAD. oy, Po EA	COP ThE pints
OPINION AND ORDER = PANEL
BEFORE JOHN MINOR WISDOM, CHAIRMAN, AND EDWARD WEINFELD,
EDWIN A. ROBSON, JOSEPH S. LORD, III*, STANLEY A. WEIGEL, ; CE
ANDREW A. CAFFREY*, AND ROY W. HARPER, JUDGES OF THE PANEL. REE
PER CURIAM
, This litigation consists of three actions pending So
in three federal districts -- one each in the Northern : CS
District of Illinois, the Southern District of New York oo :
and the Central District of California. These actions : Cu
have been brought by the same thirteen corporationst/ Co LL
against a number of motor carriers and freight forwarders. : Te
One hundred forty-six motor carriers or freight forwarders So
are named as defendants in the Illinois action, 64 others Lo
are named in the New York action and 28 others are named Co Co oa
in the California action. The plaintiffs in these actions oo EEE
* Judges Lord and Caffrey took no part in the decision a
of this matter.
1/ A fourteenth corporation is also a plaintiff in RE
the Illinois action. | oo

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] allege that they have shipped certain commodities (drugs, Aoo medicines, toilet preparations, essential oils and other Co
articles) in interstate commerce with the defendant motor
carriers and freight forwarders, and that plaintiffs have |
suffered partial loss of or damage to those shipments : -
during the course of transportation. Plaintiffs allege : En
that they filed claims with the motor carriers or freight Le
forwarders for those losses, but have not been compensated N
for the losses in full because of a dispute over the
measure of damages. In each action, the plaintiffs seek CL
to represent a class consisting of all members of five .
trade associations that are also disputing the measure | oo
of damages with respect to losses that allegedly have occurred. SU
Plaintiffs state in their complaints that under AL
applicable provisions of the Interstate Commerce Act, 5 oo
the Interstate Commerce Commission (ICC) for specific . —
types of commodities maintains rate schedules which B -
provide lower rates to shippers in exchange for limitations . EET
on the liability of a motor carrier or a freight IRSARES
forwarder for loss of or damage to an individual shipment. Co
These lower rates and limitations on liability are :
allegedly based on an artificially low value, called the Co
"released value,'" of the commodities involved in the ER

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@® shipment. In the event of loss of an entire shipment,
plaintiffs continue, the maximum liability of a carrier
is an amount equal to the released value for each type
of commodity involved in the shipment (50 cents per pound
for the commodities involved in these actions) multiplied
by the entire weight of all commodities of that kind
in the same shipment,
On March 27, 1977, plaintiffs note, the ICC ruled
that the liability of a carrier for loss of or damage
to a portion of a shipment is the actual amount of the
loss or damage, up to a maximum amount equal to the
released value for the commodities involved multiplied
by the entire weight of all commodities of that kind
J that were involved in the shipment, whether they were
damaged or not. An appeal has been taken by the defendants
from that ruling and is presently pending in the United
States Court of Appeals for the District of Columbia
Circuit -- National Motor Freight Traffic Association,
et al. v. United States, et al., No. 77-1484. 2/
2] The position of the defendant motor carriers and
Treight forwarders is that the maximum liability for
partial loss of or damage to a shipment should be equal to the
released value of the commodities involved multiplied by the
weight of the damaged or lost portion of the shipment
only. For example, if 100 pounds of a 2000 pound shipment
were lost, and the commodities involved had a released
value of 50 cents per pound, the maximum liability
under plaintiffs' calculations would be 2000 x $.50 or
$1,000. Under defendants' calculations, the maximum
® liability would be 100 x $.50 or $50.

Case MDL No. 333 Documgnt2 Filed 05/05/15 Page	4 of 7 ’ ’
Plaintiffs allege that despite the ICC's ruling, @
defendants have failed to settle claims for partial
losses on the basis of that ruling.
The thirteen common plaintiffs move the Panel for
an order pursuant to 28 U.S.C. §l407 transferring
the New York and California actions to the Northern
District of Illinois for coordinated or consolidated
pretrial proceedings with the action pending there.
Two hundred six of the 238 defendant motor carriers
and freight forwarders oppose transfer. The other
parties have not responded.
We conclude that these actions raise few if any
common questions of fact and that transfer under Section ®
1407 would not serve the convenience of the parties and
witnesses or promote the just and efficient conduct of
this litigation. Accordingly, we deny the motion to
transfer.
Movants assert that, though these actions each involve
different defendants, these actions share questions
of fact regarding industry practices with respect to
released value shipments. Transfer under Secticn 1407
will prevent duplicative discovery by both plaintiffs
and defendants, movants maintain. They also contend that
transfer is needed to avoid inconsistent class
determinations.
®

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C We find these arguments unpersuasive. On the basis
of the record before us, the predominant, and perhaps
only, common aspect in these actions is the legal
question of what measure of damages is applicable.
The factual issues presented are primarily, if not
entirely, unique questions pertaining to the numerous
distinct shipments involved in each action. Thus,
since these actions involve a common question of law
and share few, if any, questions of fact, transfer
under Section 1407 is inappropriate. See In re
Environmental Protection AgencyPesticide	Listing Con-
fidentiality Litigation, 434 F. Supp. 1235, 1236 (J.P.M.L.
1977); In re Natural Gas Liquids Regulation Litigation,
® 434 F. Supp. 665, 667-68 (J.P.M.L. 1977). Furthermore,
another factor weighing against transfer under Section
1407 is the likelihood that a ruling on this question
of law by the Court of Appeals for the District of
Columbia Circuit in the appeal presently pending before
that court may have a substantial effect on the resolution of
these actions. See generally In re "Lite Beer'' Trademark
Litigation, 437 F. Supp. 754, 755 (J.P.M.L. 1977);
In re U. S.Navy Variable Reenlistment Bonus Litigation,
407 F. Supp. 1405, 1407 (J.P.M.L. 1976).
®

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IT IS THEREFORE ORDERED that the motion to transfer
the actions listed on the following Schedule A be, and
the same hereby is, DENIED.

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C SCHEDULE A DOCKET NO. 333
NORTHERN DISTRICT OF ILLINOIS
American Home Products Corp., et al. v. Civil Action
A&H Trucking Line, Inc., et al. No. 77C3965
SOUTHERN DISTRICT OF NEW YORK
American Home Products Corp., et al. v. Civil Action
AAA Trucking Corp., et al. No. 77 Civ. 5767
CENTRAL DISTRICT OF CALIFORNIA
American Home Products Corp., et al. v. Civil Action
Ameri-Con Cartage, et al. No. CV77-4360-WPG