Mass Torts and Multidistrict Litigation

(MDL)

Will MaibergerWatts Guerra Craft LLP

Overview

Origin & Purposes

The United States Judicial Panel on Multidistrict Litigation, known informally as the MDL Panel, was created by an Act of Congress in 1968 – 28 U.S.C.

§ 1407.

Overview

Origin & Purposes The job of the Panel is to:

(1)determine whether civil actions pending in different federal districts involve one or more common questions of fact such that the actions should be transferred to one federal district for coordinated or consolidated pretrial proceedings; and

(1)select the judge or judges and court assigned to conduct such proceedings.

Overview

Origin & Purposes The purposes of this transfer or “centralization”

process are to avoid duplication of discovery, to prevent inconsistent pretrial rulings, and to conserve the resources of the parties, their counsel and the judiciary. Transferred actions not terminated in the transferee district are remanded to their originating transferor districts by the Panel at or before the conclusion of centralized pretrial proceedings.

Overview

Historical Summary Since its inception, the Panel has considered

motions for centralization in over 2,000 dockets involving more than 300,000 cases and millions of claims therein. These dockets encompass litigation categories as diverse as airplane crashes; other single accidents, such as train wrecks or hotel fires; mass torts, such as those involving asbestos, drugs and other products liability cases; patent validity and infringement; antitrust price fixing; securities fraud; and employment practices.

Overview

Membership of the MDL Panel The MDL Panel consists of seven sitting

federal judges, who are appointed to serve on the Panel by the Chief Justice of the United States. The multidistrict litigation statute provides that no two Panel members may be from the same federal judicial circuit.

Panel Judges

Current Judges

John G. Heyburn II, Chairman, United States District Court, Western District of Kentucky;

Robert L. Miller, Jr., United States District Court, Northern District of Indiana;

Kathryn H. Vratil, United States District Court, District of Kansas;

David R. Hansen, United States Court of Appeals, Eighth Circuit;

W. Royal Furgeson, Jr., United States District Court, Northern District of Texas;

Frank C. Damrell, Jr., United States District Court, Eastern District of California; and

Barbara S. Jones, United States District Court, Southern District of New York

Checklist & Samples for Filing New MDL Motion for 28 U.S.C. §1407 Transfer

Court Rules for the Judicial Panel on Multidistrict Litigation cited @

199 F.R.D. 425

http://www.jpml.uscourts.gov/Checklist_for_New_MDL_Motion-04-

2010.pdf

Checklist for Filing Notice of Opposition to Conditional Transfer Order (CTO) and

Motion and Brief to Vacate CTO

Court Rules for the Judicial Panel on Multidistrict Litigation cited @

199 F.R.D. 425, 435

http://www.jpml.uscourts.gov/Rules___Procedures/JPML-Notice-of-

Opposition-Checklist-11-2009.pdf

http://www.jpml.uscourts.gov/JPML-Sample-Notice-of-Opposition-11-2009.pdf

Amended Panel Rules(effective October 4, 2010)

In conjunction with the transition to CM/ECF, the Panel Rules Working Group proposed

changes to the Panel’s Rules of Procedure to accommodate electronic case filing as well as update the Rules and make them more user-friendly. The Rules were adopted by General

Order on September 8, 2010, and are effective on October 4, 2010.

http://www.jpml.uscourts.gov/General_Order_Amending_Panel_Rules_and_Pan

el_Rules-9-8-10_Effective_10-4-10.pdf

FAQs

http://www.jpml.uscourts.g

ov/Rules___Procedures/

JPML-FAQ-Revised_4-1-09.pdf

A View from the Panel: Part of the SolutionJohn G. Heyburn II

Tulane Law Review (2008)

The Article Can be Found at:

http://www.jpml.uscourts.gov/PartoftheSolution_Heyburn.pdf

The Article traces the development of the Judicial Panel on Multidistrict Litigation and its role in the management of complex litigation before providing an overview of its current practices and future direction. Its purpose is to provide the reader with some insight into the Panel’s operations, to suggest how those operations have generally benefitted litigants in complex multidistrict cases, and to confirm the Panel’s intention to continue addressing the challenges that multidistrict litigation poses. In doing so, the Article provides comprehensive statistics that dispel a number of myths about multidistrict litigation and confronts concerns expressed by practitioners and academics about such varied topics as the time allotted to oral argument, the factors involved in selecting the transferee court, and the standards for transferring and remanding cases. The Article concludes with a look toward the role the Panel hopes to play in the future of complex litigation.

SNS with Flexipel

An Unreasonably Dangerous and Defective Product

No Testing of Flexipel

ICT’s Bruce Baker, Ph.D.

Q. Did ICT do any aerosol testing on [Flexipel] S-22WS?

A. No.Q. Dr. Baker, did you ever

take any action to confirm the particle size information that was given to you by SLR?

A. No.Q. Do you have any

experience at all in your career in doing any type of inhalation aerosol testing?

A. Oh, no. No experience.

Foreseeable Use by Consumers

Use in confined areas with poor

ventilation

Use without respiratory

equipment or masks

Use without eye protection

Use without fans or exhaust ventilation

equipment

Notice and Recall

Negligence and Gross Negligence

First Notice of Claims

May 2005

Stephanie Perilli - Home Depot Risk Management Director

Q. So there was a notice of claim to Home Depot from Mr. Cox on May 13th of 2005, correct?

A. Yes.Q. In your experience as the

director of the risk management area from late 2003, early 2004, through March of 2006, can you think of any other product besides SNS where there was notice to Home Depot on at least 11 or 12 occasions of people getting sick from using a product in a three-month period?

A. Nothing comes to mind right now.

Rich Tripodi - Roanoke President and CEO

Q. Do you believe May 16, 2005 is the first Chemtrec report, even though it may not have gotten in to you-all for a few days after that?

A. I believe around May 16th. I was out of the office for a period of time at the end of May.

Q. But from the standpoint of [Roanoke], you-all received that on May the 19th.

A. I would have to assume we did, yeah, uh-huh.

Michelle Kascak - Roanoke Vice-President of R&D

Q. When did you first become aware of injury claims being made?

A. May 31st [2005].Q. How did you become

aware?A. I spoke to a gentleman

whose father has used the product.

Q. Before May 31st of 2005, nobody within Roanoke ever told you anything about there being any complaints from consumers about getting sick from using SNS, is that correct?

A. That’s my recollection.

Michelle Kascak - Roanoke Vice-President of R&D

Exhibit 47: June 17, 2005 e-mail to Rich Tripodi

“I just spoke with Dr. Al Bronstein of the Rocky Mountain Poison Control Center. He advised me that he has been in conversation with Chemtrec and is now aware of increasing number of health emergency calls related to the use of SNS. In light of the overwhelming calls Chemtrec reports receiving and the hospitalizations he has discovered, he feels that it is his responsibility to report SNS to the Consumer Products Safety Comission as a consumer hazard.”

Michelle Kascak - Roanoke Vice-President of R&D

Q. So am I correct to say the first time the Consumer Products Safety Commission learned about the SNS problem was from Dr. Bronstein and not from Roanoke?

A. That’s not correct.Q. It’s not?A. That is not correct.Q. Okay. Tell us what’s

correct, then.A. I contacted the Consumer

Products Safety Commission that same day.

Rich Tripodi - Roanoke President and CEO

Q. When you write, “we are doing everything we can to convince Home Depot that there is no reason to take these batches off the shelf,” were you already getting pressure from Home Depot to get them off the shelf?

A. No. Actually what I was referring to was taking the whole product away from Home Depot. It was a successful product that had sold many cans, 1.3 million, before the problem. And the issue was, how do we deal with this issue?

Q. Without losing the account?A. Without losing the business.

Michelle Kascak - Roanoke Vice-President of R&D

Q. On July 14, 2005, Roanoke had knowledge of over 40 people that had to go to the emergency room and they also had knowledge that one of their own employees got sick from using the product, right?

A. Yes.Q. And then they decided

to recall the product, correct?

A. Yes.

Exhibit 351 - Home Depot Product Recall Process

“We will most likely lead the recall process for our proprietary-branded products, and any Home Depot-branded or private label products.”

Marcia Cowan - Home Depot Corporate Rep. & Lawyer

Q. In August or September of 2005, did Home Depot have any sort of procedure or policies in place where it would verify and confirm that a specific product such as SNS, when a vendor represents to you that it has been all removed from the shelves, that it actually has been done and that’s actually the case?

A. No. You know, we’re a retailer. We rely on our vendor.

Marcia Cowan - Home Depot Corporate Rep. & Lawyer

Q. Home Depot never sent any communication directly to its own stores or to its own managers or to its own store employees explaining the situation where cans may have made their way back onto the shelves and how to prevent that from happening in the future, correct?

A. Not specifically as to this product.

Q. At this time, August 30th of 2005, did Home Depot have any concern that there might be affected product on the shelves in the Denver market or any other market besides San Antonio?

A. Not based on the representations of Roanoke.

Exhibit 285 - Sept. 2, 2005 Correspondence on Audit

E-mail from Cowan to Tripodi: “Please advise how much bad product was found. [Your] e-mail says “limited qty”

E-mail from Tripodi to Cowan: “Total cans found is 2,637.”

Majority of stores at zero, but some stores still had up to 219 bad cans.

Injuries and Damages

Henry Spiller - Toxicologist

Initial Symptoms

Pulmonary Injury Suggesting a Chemical Pneumonitis

Henry Spiller - Toxicologist

Permanent Impairment Cases

Shortness of Breath with Exertion

Decreased Exercise Tolerance

Positive Methacholine Challenge Suggestive of Reactive Airway Disease (RADs)

Reduced Pulmonary Function Tests

Reduced Diffusion Capacity

END