Case: 1:08-gd-50000-DAP Doc #: 1073 Filed: 12/21/11 1 of 9.

PageID #: 35768

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION | | | | | | | Case No. 1:08 GD 50000 MDL No. 1909

IN RE: GADOLINIUM BASED CONTRAST AGENTS PRODUCTS LIABILITY LITIGATION

Judge Dan Aaron Polster

PLAINTIFFS MOTION FOR EXPEDITED TRIAL SETTING AND MOTION TO TRANSFER PLAINTIFFS CASES COME NOW, Plaintiffs in the twenty-two cases identified in Exhibit A (hereinafter Plaintiffs), by and through their counsel of record, and file this, their Motion for Expedited Trial Setting and Motion to Transfer Plaintiffs Cases. In support of this Motion, Plaintiffs would respectfully show the Court the following: I. INTRODUCTION Plaintiffs are dying. Five of the twenty-two Plaintiffs represented by Plaintiffs counsel have died since the inception of MDL 1909. Three died this past summer. Another has just been placed on hospice care. Numerous others are critically ill or are steadily losing their ability to be meaningful participants in their own cases. Consequently, this may be the most important motion Plaintiffs will present in this litigation. Plaintiffs ask that (1) the twenty-one cases involving out-of-state Plaintiffs be transferred to federal courts of proper venue where they can proceed expeditiously to trial, and (2) that Ohio plaintiff Roberto Garcia be given an expedited trial setting before this Court.

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II. FACTS MDL 1909 was created to deal specifically with cases brought by and on behalf of persons who developed Nephrogenic Systemic Fibrosis (hereinafter NSF) as a result of being administered one or more gadolinium-based contrast agents (hereinafter GBCAs).1 NSF is a debilitating, untreatable and incurable disease that ravages the bodies of its victims leaving them immobile, in constant pain, and oftentimes unable to care for themselves. It, or the underlying conditions that occasioned Plaintiffs GBCA exposure in the first place, also frequently lead to premature death. During the nearly four-years that MDL 1909 has been ongoing, 2 five of the twenty-two NSF-diagnosed clients represented by Plaintiffs counsel have died. Three have died during the period between when the Plaintiffs Steering Committee last requested trial dates for cases and the present. [See Death Certificates (attached hereto as Exhibit B)]. The remaining Plaintiffs have experienced a steady, and sometimes rapid, deterioration in their mobility and in their physical ability to manage routine tasks. Meanwhile, their pain levels and health complications have significantly increased. If the claims of these Plaintiffs are not allowed to progress

expeditiously toward trial, it is likely that Plaintiffs will be unable to meaningfully participate in

Five GBCAs approved by the FDA for use in the United States were used during the relevant time period. These products include Magnevist, manufactured by the Bayer family of companies, which was approved by the FDA in 1988; ProHance, manufactured by Bracco Diagnistics, which was approved in 1992; Omniscan, manufactured by the GE family of companies, which was approved in 1993; OptiMARK, manufactured by Mallinckrodt-Tyco Healthcare, which was approved in 1999; and MultiHance, also manufactured by Bracco Diagnostics, which was approved in 2004. 2 On February 27, 2008, the Judicial Panel on Multidistrict Litigation entered an Order transferring all federal cases involving GBCAs to the United States District Court for the Northern District of Ohio, Eastern Division (the MDL Court) for coordinated discovery and consolidated pre-trial proceedings. 28 U.S.C. 1407(a).
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the trial proceeding, and possible that many Plaintiffs will not be alive for the trial of their claims at all. The cases described below are indicative of the disease progression, and ensuing hardships, suffered by victims of NSF: 1. Penny Dunn

Penny Dunn is a 48-year old married female who was placed in the ICU after experiencing vascular bleeding during dialysis that resulted in respiratory and cardiac arrest. Ms. Dunns current critical health status is the result of a steady deterioration due to NSF. In late 2006, Ms. Dunn began experiencing progressive skin tightening and hardening with contractures with a reddish brown rash. The rash steadily progressed from her legs to her thighs, abdomen, buttocks, arms and hands. The skin tightening and contractures have caused Ms. Dunn to progress from loss of the ability to walk and stand to nearly total inability to use her arms and hands. Ms. Dunn was on renal dialysis prior to her NSF diagnosis, but tragically, did not qualify for a kidney transplant because her leg contractures prevent her from laying flat on an operating table. She will be released to hospice on December 22, 2011. 2. Mary Lindley

Mary Lindley was diagnosed with NSF in January of 2010. Since then she has developed painful skin lesions and rope-like areas under the skin on her thighs. Firm lesions have also

developed on her abdomen and hands such that amputation of the third finger of her left hand was necessary. As the disease has progressed, Ms. Lindley has developed ulcerations on her

right hand, crusted papules on both forearms, and subcutaneous nodules and scaly plaque on her thighs. Ms. Lindleys deteriorating condition required her to be hospitalized during the Summer

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of 2011 for calciphylaxis and to undergo intensive wound care including painful debridements to remove necrotic tissue. 3. Roberto Garcia

Roberto Garcia is a 60-year old veteran. For the past five years, Mr. Garcia has suffered from ever-worsening hand contractures and escalating joint pain in his hands, wrists, elbows, shoulders and ankles. He has suffered a progressive decrease in his ability to extend and/or flex his wrists, elbows, ankles, and toes. Mr. Garcia currently exhibits skin thickening to his elbows and knees, bilateral contractures over both hands, flexion contractures at his elbows and knees and limited range of motion in his wrists and ankles. As his disease continues to progress, Mr. Garcias mobility and capability to perform routine tasks continues to diminish. III. ARGUMENT AND AUTHORITIES A. This Court Should Transfer Plaintiffs Cases to Federal District Courts of Proper Venue In the Interest of Justice and for the Convenience of the Parties. In the interest of expediency, Plaintiffs originally filed their cases directly into MDL 1909 pursuant to PreTrial Order No. 1. [Pretrial Order No. 1: Direct Filing of Actions in the Northern District of Ohio (attached hereto as Exhibit C)]. PreTrial Order No. 1 expressly provides for the direct filing of actions into MDL 1909 and instructs that this Court will transfer [directly-filed actions] to a federal district court of proper venue when it is time for trial proceedings. [Exhibit C, p. 2]. That time is now. The transfer process set forth in PreTrial Order No. 1 is consistent with this Courts power and authority to transfer cases under 28 U.S.C. 1404. Title 28 of the United States Code, section 1404, subdivision (a), states that a district court may transfer any civil action to 4

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any other district or division where it might have been brought. The district court may do so for the convenience of parties and witnesses and in the interest of justice.3 28 U.S.C. 1404 (a). Thus, this Court has authority to transfer Plaintiffs cases to a proper local federal court forum in the interests of justice and expediency.4 1. Justice requires that critically ill Plaintiffs be afforded their day in court before they die or become incapable of meaningful participation in the legal process.

From the inception of MDL 1909 in February of 2008, this Court has recognized that the critical nature of plaintiffs injuries and the ever-increasing plaintiff death toll would require accommodations and sensitivity. For instance, to speed the resolution of cases, this Court

envisioned that pretrial proceedings in MDL 1909 would encompass both generic (i.e., of widespread application to many cases) and case-specific (i.e., that pertained solely to an individual plaintiff's claims) discovery. Similarly, procedures for selecting and preparing bellwether cases were discussed within mere months after creation of the MDL. In so doing, the this Court expressed the clear and

When considering whether to transfer a case pursuant to Section 1404(a), Courts may consider private interest factors including: (1) plaintiffs choice of forum, (2) convenience of the parties, (3) convenience of key witnesses, (4) cost of obtaining witnesses, (5) location of counsel, (6) ability to compel the attendance of witnesses, (7) accessibility and location of sources of proof, (8) possibility of jury view of evidence located in the proposed forum, and (9) existence of a forum-selection clause. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947); In re Volkeswagen AG, 371 F.3d 201, 203 (5th Cir. 2004). Courts may also consider public-interest factors such as (1) court congestion, (2) local interest in the controversy, and the proposed forums familiarity with the governing law also favor the transfer of Plaintiffs cases. See Coffey v. Van Dorn Iron Works, 796 F.2d 217, 220-21 (7th Cir. 1986). As set forth herein, the bulk of these factors strongly favor transferring Plaintiffs cases to more convenient local courts of proper venue. 4 Had Plaintiffs claims been transferred to the MDL Court (rather than filed directly into the MDL), Plaintiffs understand that a remand to their courts of origin would be made by the JPML pursuant to 28 U.S.C. 1407. If this Court is inclined to find that the JPMLs remand authority, as set forth in Section 1407, (rather than this Courts authority to transfer cases pursuant to 28 U.S.C. 1404 as referenced in Pretrial Order No. 1) is the proper mechanism for transferring Plaintiffs cases to their local federal courts, Plaintiffs respectfully request that the Court treat this motion as requesting a Suggestion of Transfer and that the Court inform the JPML of its recommendation that Plaintiffs cases be transferred for trial proceedings. 5

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laudable desire to prioritize the cases of the most critically-ill plaintiffs when selecting cases for bellwether trials: [O]ne neutral principal I have come up with is to the extent the individual plaintiff is still living, that we focus on the plaintiffs whose condition is most extreme, with the idea that someone deserves to have their case tried while they are still alive, if possible. That to me is a fair and neutral principle on which we all can agree. [Tr. of hearing before the Honorable Dan Polster, 10:12-19 (July 8, 2008)(emphasis added.)] Unfortunately, the early promise of expediency realized in discovery and pre-trial matters has not born fruit in case resolution. Despite Plaintiffs efforts, not one case has been tried.

Nearly a year has passed without action on a December 30, 2010 request by the Plaintiffs Steering Committee for trial settings in certain cases. [See Docket #957 (attached as Exhibit D]. And no plan has yet been put in place to begin remanding or transferring cases for trial proceedings in other forums. Meanwhile, Plaintiffs continue to succumb to the ravages of NSF. Consequently, fairness and decency now require that Plaintiffs cases be set for trial or be transferred to courts of proper venue where they may proceed toward trial while Plaintiffs are still capable of meaningful participation in the legal process. 2. The efficiency benefits of coordinated and consolidated pre-trial proceedings have already been realized; but, dragging out the MDL process is an inefficient means for resolving Plaintiffs claims.

MDL 1909 has served its intended purpose. Generic fact and expert discovery has been completed. Plaintiff Fact Sheet have been prepared and provided to Defendants. And numerous Case Management Orders have been entered providing detailed instructions regarding discovery, evidentiary and trial procedures. Hence the efficiency objectives of coordinated and

consolidated pretrial proceedings have already been achieved. 6

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However, MDL 1909 has proved an inefficient vehicle for bringing Plaintiffs claims to a final resolution. Efforts at settling Plaintiffs claims under the supervision of the MDL Court

have been wholly unsuccessful. On May 25, 2011, the Plaintiffs Steering Committee and Defendant GE Healthcare, Inc. agreed to enter into a dispute resolution process to mediate on a firm-by-firm basis all of the remaining cases pending in MDL 1909.5 [Docket #1030 (attached as Exhibit E)]. Plaintiffs have mediated with GE Healthcare formally on two (2) occasions, and have met with GE Healthcare on another two (2) occasions, without resolving Plaintiffs cases. In Plaintiffs view, Defendants have not seemed seriously inclined toward settling Plaintiffs claims. At the very least, there is a significant gap between the parties respective valuations for Plaintiffs cases. Absent any realistic expectation of a group settlement, there is no further

reason to delay trial proceedings under the guise of achieving a collective settlement. 3. Plaintiffs cases can be most conveniently resolved by transferring them to the local federal courts where they would have originally been brought but for the MDL.

Transferring Plaintiffs cases so that they can proceed toward a trial on their merits in multiple forums is the most efficient means for bringing this litigation to a close. It would greatly congest this Courts docket to have to try each of the remaining cases in MDL 1909. Such a task could take several years to accomplish. On the other hand, if these cases were transferred to multiple venues, it would (1) lessen the burden on any single court, and (2) allow actions requiring the application of different states laws to be handled by the local federal courts most familiar with the governing law, (3) and enable trials to be held in forums that are accessible to the critically-ill Plaintiffs and convenient to witnesses in each case. For each of these reasons,
5 The agreement stated that, upon determination by the Court that mediation/resolution efforts are at an impasse, a Status Conference shall be set with the Court. [See Revised Mediation Protocol, pg. 2:06-07, Docket #1030, Attachment #1 (attached as Plaintiffs Exhibit E)]. To this date, no Status Conference has been held.

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the MDL Court should begin the process of transferring Plaintiffs cases to the courts where they could have been originally filed. Convenience also favors transferring these cases to the jurisdictions in which these cases could have been filed originally. [See District Court Venues (attached hereto as Plaintiffs Exhibit F)]. The more convenient forums for the Plaintiffs would be the forums in which their causes of action accrued. Most of the Plaintiffs are severely injured or impaired. It would greatly assist them to be able to travel a shorter distance for the trial than to travel to Ohio (which, in some instances, is hundreds, if not thousands, of miles away). It would also be more convenient for a majority of the witnesses. Several of the key witnesses are treating physicians. In most instances, the treating physicians are closer to the where the cause of action accrued than to this Court. III. CONCLUSION The efficiency benefits of consolidated and coordinated proceedings have already been achieved. Repeated efforts at a collective settlement have been unsuccessful. Plaintiffs cannot afford to delay further while their health deteriorates. All that remains is to transfer Plaintiffs cases to their proper local forums where Plaintiffs may seek a just, convenient, and expeditious trial of their claims. For the foregoing reasons, Plaintiffs respectfully request that: (1) the 21 cases involving out-of-state Plaintiffs and particularly the cases of Plaintiffs Penny Dunn and Mary Lindley -be immediately transferred to courts of proper venue so that an expeditious trial and resolution of their claims may be reached, and (2) that the case of Ohio resident Plaintiff Roberto Garcia be immediately set for trial before this Court. Alternatively, if this Court is disinclined to transfer 8

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the 21 ou ut-of-state Pl laintiffs cas to federal district cou of prope venue, all Plaintiffs request ses l urts er that they be given ex xpedited trial settings bef l fore this Cou urt. Resp pectfully sub bmitted, MA ATTHEWS & ASSOCIA ATES

DAV P. MAT VID TTHEWS 2905 Sackett Str 5 reet Hou uston TX 77 7098 (713 522-5250 Telephone 3) (713 535-7184 Facsimile 3) ATT TORNEYS FOR PLAI INTIFFS

CERTIFICA C ATE OF SE ERVICE A copy of the foregoing was filed el lectronically on Decemb 22, 2011 Notice of this y ber 1. filing wil be sent to all parties b operation of the Cour electroni filing syst ll by rts ic tem. Parties may s access th filing thro his ough the Cou urts system A courtesy copy of th document has been se m. his t erved electronically upon defense liaiso counsel. d on

__________ ___________ __________ _____ ____ Dav P. Matthe vid ews