Southern Division In re: SILICONE GEL BREAST ) Master File CV 92-P-10000-S
IMPLANT PRODUCTS LIABILITY )
LITIGATION (MDL-926) ) (Applies to cases listed in Appendices)
ORDER No. 52C
(Directing Plaintiffs to Report Status of Cases) 1. Background. Listed in Appendix A and B to this order are most of the cases still pending in the Northern District of Alabama which were transferred to (or filed in) this court prior to 1999 but which, are not as of this date in the process either of being remanded to the transferor court or, according to information provided by the parties, of being settled.
(a) Appendix A lists these cases in the order of their ALN case number; Appendix B lists these cases in the order of the "namecode" of the attorney shown on ALN records as representing the plaintiff (or the "namecode" of the individual plaintiff in pro se cases). A copy of both appendices will be posted with this order on the court's web page and can be downloaded. A copy of this order with the applicable page(s) of Appendix B will be mailed to each indicated plaintiff's attorney and to the indicated pro se plaintiffs at their last known address provided to the court.
(b) There are multiple listings of those cases in which ALN records reflect more than one attorney representing the plaintiff(s) in those cases.
(c) The list does not include cases transferred to or filed in this court after 1998 and there are a few pre-1999 pending cases not listed. The court will be pleased to receive status reports on these cases, but will not take action on these non-listed cases based on a failure to respond.
2. Directive to Report. As a part of its continuing efforts to determine what action should be taken in the cases here, the court is hereby directing that in each of the listed cases the plaintiffs' attorney (or the plaintiff individually in pro se cases) must provide to the court by December 15, 1999, a written report as to the status/classification of each such case. Each case should fall into one of the following categories:
(a) Category A--closing (DEFAULT OPTION): These are cases that may appropriately be closed in the Northern District of Alabama, each party bearing its own costs, with provisions in the closing order preserving the rights of the plaintiff(s) to pursue claims against Dow Corning as may be authorized by the Bankruptcy Court of the Eastern District of Michigan, preserving the rights of the plaintiff(s) to pursue claims against The Dow Chemical Company in the District Court of the Eastern District of Michigan subject to orders of the Bankruptcy Court of that court, and without prejudice to the rights, if any, of the plaintiff(s) as participants in the Revised Settlement Plan, the Foreign Settlement Plan, and Inamed/McGhan/CUI settlement plan.
This would be the appropriate category for cases in which all pending and viable claims of the plaintiff(s) fall into one of the following categories: (1) claims have been settled; (2) claims against 3M and the Bristol and Baxter defendants, and the plaintiff, though eligible, did not timely opt out of the Revised Settlement Program; (3) claims against Dow Corning and/or The Dow Chemical Company; (4) claims against Inamed, McGhan, and CUI; (5) claims against defendants that have been granted summary judgement or relieved from further liability under class-wide injunctions (e.g., Bioplasty, Cabot Medical, Corning, General Electric, Mentor, Scotfoam, etc.); and (6) claims against other companies and individuals that are not practical to pursue.
(b) Category B--remand: These are cases in which the request of the plaintiff(s) is that the case should be remanded to the transferor court. In making such a request, the report should indicate the "active, viable" defendants against whom the case will, after remand, be pursued. If 3M or the Bristol or Baxter companies are designated as active defendants, the report should indicate the approximate date when the implant-recipient plaintiff opted out of the Revised Settlement Program.
Plaintiffs should be aware of the many summary judgments that have been granted, of the many name-changes and corporate reorganizations that have occurred, and of the potential for Rule 11 sanctions by identifying as an active defendant a company against which there is no factual/legal basis for asserting a claim.
(c) Category C--settlement: These are cases in which the request of the plaintiff(s) is that, rather than closing the case under Category A or remanding the case under Category B, the Northern District of Alabama should at this time retain jurisdiction over the case pending the outcome of active settlement discussions with the defendant(s).
(d) Category D--special: These are cases in which the request of the plaintiff(s) is that, rather than closing the case under Category A or remanding the case under Category B, the Northern District of Alabama should at this time retain jurisdiction over the case because of some special circumstances, e.g., the pendency of a request for a late opt-in or opt-out from the Revised Settlement Program.
3. Instructions for submitting reports.
(a) The appendices have been prepared in a format in which the response may, for many cases, take the form of simply returning the applicable page(s) from the appendix, with the Category code inserted. In cases in which more than one attorney is shown as representing the plaintiff(s), those attorneys are encouraged to consult and provide a single response
(b) With respect to any case falling into Category A, there is no need for the plaintiff (personally or through counsel) to respond, since, in the absence of a response, the court will treat the case as being in that category and will then enter an appropriate order.
(c) With respect to any case falling into Category B, C, or D, the plaintiff (personally or through counsel) should file with the Clerk of the Northern District of Alabama a formal written response by December 15, 1999, with service on counsel for any defendants that may be an active defendant against which the case may be pursued. The court does not want, and indeed discourages, any "courtesy" copy to the judge—this simply adds to the administrative burdens.
(1) In multi-plaintiff cases, plaintiffs' counsel should identify which plaintiffs have active claims (and against which defendants) and which initially-named plaintiffs may have their claims closed under the conditions indicated in paragraph 2(a) above.
(2) The defendants are encouraged to promptly respond with respect to cases listed as Category B, C, or D, particularly if there is a dispute as to the opt-out status of plaintiffs listed as Category B. The court expects to develop its list of cases that should be included on a later Suggestion of Remand from those listed in Category B and the defendants' response, without going through a further "show cause" process.