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In re: PHENYLPROPANOLAMINE (PPA) PRODUCTS LIABILITY LITIGATION. This document relates to The Cases Listed on Exhibit A v. BAYER CORPORATION, ET AL.

ORDER ON MOTION OF DEFENDANT BAYER CORPORATION FOR ADDITIONAL REPRESENTATION

BARBARA ROTHSTEIN, District Judge

Defendant Bayer Corporation filed a motion for authority to obtain additional representation in cases in which the state of plaintiff's residence, ingestion, injury, or treatment is different from the transferor court state. The Court has reviewed the motion and finds that it is well-taken and should be granted. The Court finds, determines and adjudicates as follows:

1. The cases on Exhibit A were filed in states which have no apparent connection to the facts from which the claim arose. Many of the cases originally were filed as multi-plaintiff cases, then severed pursuant to CMO 15. Exhibit A identifies, to the extent known from pleadings and discovery to date, the state in which each plaintiff resides, the state in which she allegedly ingested a PPA-containing product, the state in which she allegedly was injured, and state in which she was treated. In every case identified on Exhibit A, the plaintiff resides in a state other than the state in which suit was filed. In most cases, ingestion, injury, and treatment, and in fact, all case-specific events, occurred in state(s) other than the state in which suit was filed.

2. JPML Rule 1.4 provides, with respect to representation in transferred actions, the following:

Any attorney of record in any action transferred under Section 1407 may continue to represent his or her client in any district court of the United States to which such action is transferred. Parties to any action transferred under Section 1407 are not required to obtain local counsel in the district to which such action is transferred.

This rule contemplates continued representation by transferor court counsel in the transferee court, but it does not address appearance of other counsel not authorized to practice in the transferee court.

3. This Court has ordered that case-specific discovery of plaintiffs occur prior to remand. See CMO's 1, 6, 10, 19. In the cases listed in Exhibit A and similar cases, it is unnecessarily costly and inconvenient for the parties to utilize counsel from the transferor court state to collect records and take discovery in the distant states in which the records and witnesses are located. In many cases venue in the transferor court is improper or inconvenient, and parties subsequently may seek transfer pursuant to 28 U.S.C. § 1404, § 1406, FRCP 12(b)(3), or other applicable rule or statute. See Lexacon Inc. v. Milberg Weiss Bershad Hynes Lerach, 523 U.S. 26 (1998).

4. Permitting additional representation is well within this Court's discretion.

We point out that transfer under Section 1407 has the salutary effect of placing all actions in this docket before a single judge who can formulate a pretrial program that: 1) allows discovery with respect to any non-common issues to proceed concurrently with discovery on common issues [cite omitted]; and 2) ensures that pretrial proceedings will be conducted in a manner leading to the just and expeditious resolution of all actions to the overall benefit of the parties.

Transfer Order, In Re Phenylpropanolamine (PPA) Products Liability Litigation (Jud.Pan.Mul.Lit. August 28, 2001). See also In re Showa Denko K.K.L. Tryptophan Products Liability Litigation, 953 F.2d 162, 165 (4th Cir. 1992) (§ 1407 transferee court has broad discretion in coordinating and administering its cases).

5. In order to achieve efficiencies and to avoid unnecessary cost and inconvenience, the Court hereby orders that defendant Bayer Corporation is authorized to utilize, in addition to counsel in the transferred case who may continue to represent it in the transferee court, counsel in the state of plaintiff's residence, state of ingestion, state of injury, and/or state of treatment, in the cases on Exhibit A and any other case in which the state of plaintiff's residence, ingestion, injury, or treatment is different from the transferor court state. Such representation is permitted in such cases notwithstanding that such counsel are not authorized to practice before the transferee court.

SO ORDERED.

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IN RE PHENYLPROPANOLAMINE
(Nov 10, 2004)