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 Appendix)
ORDER No. 44A
(Show Cause Why Listed Cases Should Not Be Dismissed or Administratively Closed) 1. Thousands of cases are still pending in this court which, because of settlements, bankruptcy, summary judgment, or other reasons, are essentially dormant and could be dismissed or administratively closed. Elimination of such cases from the active docket will enable this court (and potential remand courts), parties, and counsel to focus their energies on the "active" cases.
(a) As a first step in this process, the undersigned on April 6, 1998, entered a "show cause" order (Order No. 44) listing in an appendix several thousand cases that had been transferred to this court under § 1407 prior to 1997 in which, according to the records maintained by the undersigned, no request for remand (to federal or state court) was pending and there were no special motions, etc., indicating that the case was active. Plaintiffs (or their counsel) were directed to indicate by July 17, 1998, which of these cases had "active" claims, i.e., claims that could and would be pursued without need to obtain leave of a bankruptcy court.
(b) As was indicated, the court then, based on those responses, published on its webpage (in August 1998) a revised listing of cases still potentially subject to dismissal or administrative closing under the terms specified in Order 44, and indicated that corrections to this listing could be informally suggested by September 18, 1998.
(c) The court has reviewed the various responses to the initial show cause order of Order 44, the further responses submitted during the period for informal responses, and changes in parties as a result of voluntary dismissals during this several month period, and, based on that review, determined which cases still appear to be appropriately potentially subject to dismissal or administrative closing under the terms of Order 44.
2. With this background, it is hereby ORDERED that:
(a) All parties (whether acting pro se or through counsel) are directed to indicate in writing to this court by October 23, 1998, filed with the Clerk, which of the cases listed in the appendix to this order should not be dismissed/administratively closed under the conditions of this order. The court does not request and does not want "negative" responses (i.e., an indication that a party does not object to dismissal/closing under the conditions of this order).
(b) Absent a timely and satisfactory response, these cases will be dismissed and/or administratively closed under the following conditions:
(1) Any pending claims against Dow Corning Corp. and Dow Corning Wright in these cases will be severed and administratively closed in this court without prejudice to the pursuit of such claims in the United States District and Bankruptcy Courts for the Eastern District of Michigan in accordance with procedures established in those courts and without impairing in any way the potential rights of such plaintiffs under any plan of reorganization (such persons to be treated under such a plan as if they still had a pending lawsuit against Dow Corning or Dow Corning Wright). This court will, moreover, retain jurisdiction to vacate such closings and reopen such claims against Dow Corning on written motion if filed within 30 days after reorganization proceedings of Dow Corning are dismissed or within 30 days after the Eastern District of Michigan determines that reopening of such cases against Dow Corning is the procedure to be followed in liquidating such claims.
(2) Any pending claims against The Dow Chemical Company or Dow Holdings, Inc. have been severed and transferred to the United States District Court for the Eastern District of Michigan. Counsel should informally notify this court if, through oversight, it has failed to advise the Eastern District of Michigan of some claim against those defendants.
(3) Any pending claims against McGhan Medical Corp., INAMED Corp., CUI Corp., and their subsidiaries and principals will be severed and administratively closed, without prejudice to the pursuit of such claims in a pending class settlement of such claims (and with the same rights under any such settlement as if they still had a pending lawsuit against such companies and individuals). Moreover, this court will retain jurisdiction to vacate such closings and reopen such claims on request if that pending class settlement should not be approved.
(4) The plaintiff(s) in such cases will have the right to vacate the dismissal and reinstate in this court any previously pending claims against any of the other defendants by written motion filed in this court within 1 year after the date of the order dismissing the case. Unless and until vacated, the dismissal will be considered as with prejudice to the extent of precluding breast implant claims by the plaintiff (individually or as a class member) against such defendants in other cases in federal or state courts (except to the extent permitted under the terms of the Revised Settlement Program should a participating defendant default in meeting its financial obligations under that settlement).
(5) Each party will bear its own costs.
(c) Parties who object to dismissal/closing of a listed case under the above conditions should in their written responses indicate (1) the short caption of the case with its ALN case number and the transferor court and case number; (2) the defendant(s) named in the lawsuit against whom the plaintiff has an active claim to be pursued; and (3) the plaintiff's name (with her social security number if she wants to proceed against Bristol, Baxter, 3M, or Union Carbide). If a law firm is objecting to dismissal/closing in more than one case, the court prefers a single response that provides this information in an appendix to the response (rather than by separate filings in each such case).
DO NOT FURNISH THE CLERK WITH AN EXTRA COPY OF A RESPONSE AND DO NOT PROVIDE THE JUDGE WITH A "COURTESY" COPY OF A RESPONSE; THESE ARE ANYTHING BUT A "COURTESY" AND FREQUENTLY RESULT IN REDUNDANT CHECKS OF RECORDS.
The court has noted that some objections to dismissal have occurred because parties were named (initially or through an amendment) as defendants that were never reported to this court by the transferor court (or the Judicial Panel on Multidistrict Litigation). Where counsel have reason to believe that this may be the reason for a case still showing as potentially subject to dismissal/closing (as by comparing the list of pending defendants shown on the appendix to Order 44 with the list of companies/persons named as defendants in the pleadings), they are encouraged to send an extract of the pleadings in which such companies/persons are shown in the caption as defendants; there is no reason, however, to send a copy of the entire complaint in such circumstances..
3. A copy of this order and the appendix will be filed and docketed in CV 92-P-10000-S and will also be placed on the court's Webpage for viewing, printing, and downloading. After expiration of the time for response and after considering the responses, the court will prepare a separate order listing the cases being dismissed/closed and reflecting the conditions of such dismissals/closing. A docket entry will then be made in each of the cases so dismissed or closed.
This the 21st day of September, 1998.
/s/ Sam C. Pointer, Jr.
Serve: Plaintiffs’ Liaison Counsel
Defendants’ Liaison Counsel
Post also on
Appendix to Order 44A
AK 3:92-00639 CV92-11150 CORY_ERN JACOBS v. DOW CORNING