Jpml motion for transfer and consolidation
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  • 1. 1 BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION ______________________________ ) IN RE: TOTAL BODY FORMULA ) MDL Docket No.: LITIGATION ) ______________________________ ) PLANTIFFS’ MOTION FOR TRANSFER AND COORDINATION OR CONSOLIDATION PURSUANT TO 28 U.S.C. §1407 Pursuant to Rule 7.1(b) and 7.2(h) of the Rules of Procedure of the Judicial Panel on Multidistrict Litigation, Plaintiffs John W. Wilkerson, Bryan Hicks, David L. Dickens, Virginia R. Dickens, B. Chase Hicks, Ed Patalas, Jennifer Wood, Hazel White, Flora Doss and James L. Kassner, Jr. (hereinafter collectively “Plaintiffs” or “Movants”), hereby jointly move the Judicial Panel on Multidistrict Litigation (hereinafter “Panel” or “JPML”) for an order pursuant to 28 U.S.C. §1407 transferring all actions (hereinafter “the Total Body Actions”) against Defendants Total Body Essential Nutrition, Inc., Wright Enrichment, Inc., Wright Pharma, Inc., and Texamerican Food Blending, Inc., to the Northern District of Alabama; and coordinating all actions for pretrial proceedings. A list of the Total Body Actions is attached hereto as the Plaintiffs’ Schedule of Total Body Actions for Transfer and Coordination.
  • 2. 2 AVERMENTS IN SUPPORT OF PLAINTIFFS’ MOTION In support of the transfer and coordination of these actions, Plaintiffs aver to the following, as more fully set forth in the accompanying memorandum in support of this motion: 1. All of the Total Body actions put at issue the Defendants’ liability for manufacturing, marketing, selling, and distributing the dangerous and defective product – Total Body Formula – which contained excessive amounts of Selenium and Chromium. Accordingly, there is a clear commonality of legal theory and purported violations claimed across all the cases. 2. As required by 28 U.S.C. § 1407(a), the Total Body actions proposed for transfer and coordination “involve[] one or more common questions of fact.” In addition, the Total Body actions contend that the Defendants have injured Plaintiffs who ingested the dangerous and defective product – Total Body Formula – manufactured, marketed, sold and distributed by the Defendants. 3. The proposed transfer and coordination “will be for the convenience of parties and witnesses and will promote the just and efficient conduct” of the actions. 28 U.S.C. § 1407(a). For example, because all the Total Body Actions arise from a common set of claims regarding the
  • 3. 3 Defendants placing into the stream of commerce a dangerous and defective product which caused injuries to Plaintiffs who ingested the Defendants’ dangerous and defective product, common questions of pretrial procedure exist. 4. Given the substantial progress that has been made in the cases filed in the Northern District of Alabama, and the filing in the Northern District of Alabama of 14 of the 15 cases subject to this Motion, that district would be a logical and convenient forum. All defendants have appeared in the Northern District of Alabama actions. Moreover, the Northern District of Alabama court has already consolidated 9 cases actively pending there before one Judge for discovery purposes. 5. Plaintiffs base this Motion on their Memorandum in Support of this Motion to Transfer and Coordinate, and such other matters as may be presented to the Panel at the time of hearing. _________________________ Archie C. Lamb, Jr. Counsel for Plaintiffs John W. Wilkerson, Bryan Hicks, David L. Dickens, Virginia R. Dickens, B. Chase Hicks, Ed Patalas, Jennifer Wood, Hazel White, Flora Doss, and James L. Kassner, Jr.
  • 4. 4 OF COUNSEL: Archie C. Lamb, Jr. F. Inge Johnstone Tyrell F. Jordan THE LAMB FIRM, LLC 2900 1st Avenue South Birmingham, Alabama 35223 Phone: (205) 324-4644 Fax: (205) 324-4649 E. Kirk Wood (WOO046) Wood Law Firm, LLC P. O. Box 382434 Birmingham, Alabama 35233 (205) 612-0243 This is to certify that on this day of July , 2008, a copy of Plaintiffs’ Motion for Transfer and Coordination or Consolidation Pursuant to 28 U.S.C. § 1407 was served on the following: BY UNITED STATES MAIL Mark T. Waggoner (Counsel for Total Body) Leanna Bankester Pittard Hand Arendall, LLC 2001 Park Place North, Suite 1200 Birmingham, Alabama 35203 Rod Cate (Counsel for Total Body) Hand Arendall, LLC P. O. Box 123 Mobile, Alabama 36601
  • 5. 5 Glenn E. Ireland (Counsel for Texamerican) Sean C. Pierce Carr Allison 100 Vestavia Parkway Birmingham, Alabama 35216 D. Patterson Gloor (Counsel for Texamerican) Stephen P. Ellenbecker Gloor Law Group, LLC 225 West Wacker Drive, Suite 1700 Chicago, Illinois 60606 Duncan Y. Manley (Counsel for Wright) Christian & Small, LLP 505 20th Street North, Suite 1800 Birmingham, Alabama 35203-2696 Edgar D. Gankendorff (Counsel for Wright) Provosty & Gankendorff, LLC 650 Poydras Street, Suite 2700 New Orleans, Louisiana 70130 Jeffrey C. Rikard (Counsel for Cindi B. Howard; Marion Marsh, Rikard & Bryan, PC Howard; Joshua Taylor; Susan Renee 800 Shades Creek Parkway Taylor; Tony Taylor; John Snider; Marcella Suite 600-D Sparks) Birmingham, Alabama 35209 Carl Wesley Pittman (Counsel for Stockton Hess; Tammy Hess; Pittman & Perry Margaret Thompson; John Adams; Mary 432 McKenzie Ave Holland; Mary Holland as mother and next Post Office Box 710 friend of G.H., a minor; Richard Slay; Panama City, Florida 32401 and Tammy Slay) John Clark Davis (Counsel for Stockton Hess; Tammy Hess; Law Office of John Davis Margaret Thompson; John Adams; Mary 623 Beard Street Holland; Mary Holland as mother and next Tallahassee, Florida 32303 friend of G.H., a minor; Richard Slay; and Tammy Slay)
  • 6. 6 Clerk of the United States District Court for the Northern District of Florida 401 Southeast First Ave Room 243 Gainesville, Florida 32601 BY CM/ECF Clerk of the United States District Court for the Northern District of Alabama 1729 Fifth Avenue North Birmingham, Alabama 35203 ______________________________ Of Counsel
  • 7. BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION _______________________________________ ) IN RE: TOTAL BODY FORMULA ) MDL Docket No.: LITIGATION ) _______________________________________ ) PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR TRANSFER AND COORDINATION OR CONSOLIDATION PURSUANT TO 28 U.S.C. §1407 INTRODUCTION Plaintiffs John W. Wilkerson, Bryan Hicks, David L. Dickens, Virginia R. Dickens, B. Chase Hicks, Ed Patalas, Jennifer Wood, Hazel White, Flora Doss and James Kassner, Jr. (hereinafter collectively referred to as “Plaintiffs” or “Movants”) have moved the Judicial Panel on Multidistrict Litigation (hereinafter “Panel” or “JPML”) for an order, pursuant to 28 U.S.C. § 1407 transferring 15 virtually identical actions to a single district court and coordinating those actions for pretrial proceedings (hereinafter “Motion for Transfer and Coordination” or “Movant’s Motion”). All of these actions allege injuries following a consumer’s ingestion of the defendants’ dangerous and defective product – Total Body Formula – which contained excess amounts of Selenium and Chromium.
  • 8. 2 Plaintiffs strongly urge the Panel to transfer all the pending lawsuits to one district court for all pretrial proceedings. Most significantly, these actions put at issue the Defendants’ liability for manufacturing, marketing, selling, and distributing the dangerous and defective product – Total Body Formula – which contained excessive amounts of Selenium and Chromium. As such, the unique aspect of these actions – i.e., in alleging virtually identical claims against the same defendants – warrants the transfer of these cases to one court to allow the resolution of all threshold matters in the most efficient manner for the courts and the parties. Moreover, these cases fall squarely within the requirements of section 1407. All of these similar actions allege that the Defendants unlawfully manufactured, distributed, marketed and sold dangerous dietary supplements containing excessive amounts of Selenium and Chromium. It is beyond dispute that all of these actions share common questions of fact, including the same causes of actions and defendants. Transferring all of these cases to one court for pretrial proceedings will be more convenient for the parties, will not prejudice any parties’ interest, and will conserve judicial resources. BACKGROUND A. Recall Due to Excessive Selenium Total Body Formula is marketed as a complete full-spectrum dietary supplement for the entire family in liquid form. The Total Body Formula products
  • 9. 3 are sold in eight-ounce and 32-ounce plastic bottles. The Total Body Mega Formula is sold in 32-ounce plastic bottles. Both products are distributed by Total Body Essential Nutrition. Unlike in the case of drugs, manufacturers do not have to provide the United States Food and Drug Administration (“FDA”) with evidence that dietary supplements are effective or safe before they are marketed to the public; however, manufacturers are not permitted to market unsafe or ineffective products. Once a dietary supplement is marketed, the FDA has to prove that the product is not safe in order to restrict its use or remove it from the market. In contrast, before being allowed to market a drug product, manufacturers must obtain FDA approval by providing convincing evidence that it is both safe and effective. On March 27, 2008, the FDA issued a press release advising consumers not to purchase or consume Total Body Formula in the flavors of Tropical Orange and Peach Nectar, or Total Body Mega Formula in the Orange/Tangerine flavor. The FDA warned that samples of the liquid dietary supplement products were being analyzed to identify the cause of reported adverse reactions, consistent with those known to be caused by Selenium toxicity. The reactions included significant hair loss, muscle cramps, diarrhea, joint pain, fatigue and deformed fingernails. Selenium is a trace mineral which is needed only in small amounts for good health.
  • 10. 4 On or about the same date, Total Body Essential Nutrition, Inc., voluntarily recalled Total Body Formula in the flavors of Tropical Orange and Peach Nectar and Total Body Mega Formula in the Orange/Tangerine flavor. Furthermore, Total Body Formula posted the following warning on its website, http://www.totalbodyteam.com/, “IF YOU ARE TAKING TOTAL BODY FORMULA, LOT # 4016801, 4016802, 4024801, 4031801, 4031802 or 4031803 PLEASE STOP TAKING IT NOW AND CONSULT YOUR PHYSICIAN. THERE IS EXCESSIVE SELENIUM IN THE PRODUCT THAT CAN CAUSE SERIOUS HEALTH PROBLEMS.” The products were distributed in Alabama, California, Florida, Georgia, Kentucky, Louisiana, Michigan, Missouri, New Jersey, North Carolina, Ohio, Pennsylvania, Tennessee, Texas and Virginia. B. FDA Confirms Excessive Selenium and Chromium Thereafter, on April 9, 2008, the FDA issued a press release warning the public that it had found hazardous levels of Selenium in samples of certain flavors of the dietary supplement products "Total Body Formula" and "Total Body Mega Formula” and reiterating its warning to consumers not to purchase or consume the dangerous products. The FDA reported that analyses of samples of the products by FDA laboratories had found most of the samples contained extremely high levels of selenium--up to 40,800 micrograms per recommended serving, or more than 200
  • 11. 5 times the amount of Selenium per serving (i.e., 200 micrograms) indicated on the labels of the products. On May 1, 2008, the FDA again issued a press release, this time announcing the final results of its analyses of the defective products and confirming that high levels of Chromium, as well as Selenium, were present in the defective products. According to the FDA, the samples contained up to 3,426 micrograms of chromium for the recommended serving (17 times the recommended intake). The recommended chromium intake for an adult ranges from 35 to 45 micrograms per day. Excessive consumption of chromium can cause fatigue, muscle cramps, hyperactivity, hypoglycemia, renal failure and liver toxicity. Excessive chromium intake also can interfere with certain medications. C. Pending Lawsuits Against the Defendants Presently, Movants are Plaintiffs in 10 different lawsuits, pending in the Northern District of Alabama. Additionally, at least 5 other lawsuits are pending in 2 different federal jurisdictions regarding similar claims and allegations of injury.1 All of the actions share substantial commonalities regarding the named defendants, claims, and factual allegations. All of the plaintiffs complain that they 1 A list of the other federal actions subject to Plaintiffs’ Motion is included in Plaintiffs’ Schedule of Actions for Transfer and Coordination and Consolidation Pursuant to 28 U.S.C. § 1407.
  • 12. 6 were injured following their ingestion of the defendants’ product – Total Body Formula – which contained excess amounts of Selenium and Chromium. ARGUMENT This Panel is authorized under 28 U.S.C. § 1407 to consolidate and transfer “civil actions involving one or more common questions of fact” to a single district court for coordination or consolidated pretrial proceedings upon the Panel’s “determination that transfers for such proceedings will be for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions.” 28 U.S.C. § 1407(a). The purpose of this transfer procedure is to conserve judicial resources and to avoid the delays that are bound to result if all aspects of pretrial proceedings were conducted separately. See Moore’s Federal Practice – Civil, Chapter 112 Multidistrict Litigation § 112.02. All of the cases that the parties seek to transfer and coordinate in one district court fall squarely within the requirements of 28 U.S.C. § 1407(a). In fact, given that they involve virtually identical causes of action against virtually identical Defendants, important considerations warrant transferring all these cases to one district court for coordination/consolidation and pretrial proceeding.
  • 13. 7 I. The Total Body Actions Satisfy All of the Requirements of Section 1407(a). All of the cases subject to Plaintiffs’ Motion for Transfer satisfy the requirements of section 1407(a), i.e., they “involve[] one or more common questions of fact” and transfer for consolidated or coordinated pretrial proceedings “will be for the convenience of the parties and witnesses and will promote the just and efficient conduct of such actions.” 28 U.S.C. § 1407(a). A. All of the Actions Share One or More Common Questions of Fact It is without doubt that all of these actions share “one or more common questions of fact.” See 28 U.S.C. § 1407(a). All of these actions put at issue the Defendants’ liability for manufacturing, marketing, selling, and distributing the dangerous and defective product – Total Body Formula – which contained excessive amounts of Selenium and Chromium. The factual allegations in each of these complaints are virtually identical. Indeed, except for the named plaintiffs, many of the complaints are similarly drafted and assert the same allegations. As a result, they are highly likely to involve duplicative discovery, including shared witnesses and documents. On these bases alone, the MDL Panel has repeatedly recognized that creation of a centralized forum is highly appropriate. See In re Merscorp, Inc., Real Estate Settlement Procedures, No. 1810, --- F. Supp. 2d ---, 2007 WL 128792, at *1 (J.P.M.L. Jan. 10, 2007) (holding that centralization under
  • 14. 8 Section 1407 was warranted since all actions involved common questions of fact and centralization would promote just and efficient conduct of the litigation, and was necessary in order to eliminate duplicative discovery); In re NSA Telecomms. Records Litig., 444 F. Supp. 2d 1332, 1334 (J.P.M.L. 2006); In re Seroquel Prods. Liab. Litig., 447 F. Supp. 2d 1376, 1378 (J.P.M.L. 2006); In re Cobra Tax Shelters Litig., 408 F. Supp. 2d 1348, 1349 (J.P.M.L. 2005); In re Capital One Bank Credit Card Terms Litig., 201 F. Supp. 2d 1377, 1378 (J.P.M.L. 2002) (“[T]hese actions share sufficient complex common questions of fact . . . .”). In addition, these actions generally bring the same claims – namely products liability and the common law. There cannot be any dispute that all of these actions share “one or more common questions of fact.” B. Transfer of These Cases Promotes Just and Efficient Conduct of These Actions and Serves the Convenience of the Parties and Witnesses Because all these cases are factually similar, and advance similar causes of actions, pretrial proceedings in all these actions will virtually be the same. Transfer and coordination to one district court will preclude inconsistent rulings relating to pretrial proceedings by different district courts on similar issues. For this reason alone, transfer and coordination of these actions will promote the just and efficient conduct of these actions. See, e.g., In re NSA Telecomms. Records
  • 15. 9 Litig., 444 F. Supp. 2d at 1334 (Centralization for pretrial proceedings was warranted to “prevent inconsistent pretrial rulings” and “conserve the resources of the parties, their counsel and the judiciary.”); In re Seroquel Prods. Liab. Litig., 447 F. Supp. 2d at 1378; In re Banc of America Inv. Services, Inc., No. 1803, 2006 U.S. Dist. LEXIS 94113, at *4 (J.P.M.L. Dec. 19, 2006) (T”ransfer under Section 1407 will have the salutary effect of assigning the present actions and any future tag-along action to a single judge who can formulate a pretrial program . . . that ensures that pretrial proceedings will be conducted in a streamlined manner leading to the just and expeditious resolution of all actions to the overall benefit of the parties and the courts.”); In re Prempro Products Liability Lit., 254 F.Supp.2d 1366, 1367 (J.P.M.L. 2003) (“Centralization under Section 1407 is necessary in order to eliminate duplicative discovery, prevent inconsistent pretrial rulings . . ., and conserve the resources of the parties, their counsel and the judiciary”); In re Cobra Tax Shelters Litig., 408 F. Supp. 2d at 1349 (“Transfer under Section 1407 will offer the benefit of placing all actions in this docket before a single judge who can structure pretrial proceedings to accommodate all parties’ legitimate discovery needs.”). Most fundamentally, transfer of these actions to a single district will permit the formulation of a rational, sequenced pretrial program that will streamline discovery, minimize witness inconvenience and overall discovery expenses and permit parties, through cooperation and pooling of resources, to
  • 16. 10 benefit from the “economies of scale” that MDL pre-trial proceedings uniquely facilitate. The resolution of the Defendants’ purported affirmative defenses by a single district court, moreover, further supports the judicial economy of centralization of these actions. Pretrial motions, such as motions to dismiss or for summary judgment, are the types of pretrial proceedings that are appropriate for the transferee court to consider. See, e.g., U.S. v. Baxter Inter., Inc., 345 F.3d 866 (11th Cir. 2003), cert. denied, 542 U.S. 946 (2004)(court affirmed in part and reversed in part district court’s granting of defendants’ motion to dismiss in multidistrict litigation actions). Consolidation of these actions in one district court will facilitate the prompt resolution of the defendants’ intended assertions and preclude any potential inconsistent rulings in similar cases. The statutory requirement that transfer and coordination of these cases serve the convenience of the parties and witnesses is also met here. Litigating these cases in multiple courts across the country will cause substantial inconvenience to representatives of the Defendants, who would be required to appear and sit for deposition in each action. Given the significant day-to-day responsibilities of the Defendants’ representatives, the need for them to personally participate in discovery for over 15 separate lawsuits will impose a substantial and unwarranted distraction for an extended period of time.
  • 17. 11 It would serve the convenience of all parties, moreover, to have such similar matters resolved in one forum. As noted, these cases assert the same factual allegations, bring similar causes of actions, and seek similar relief. Resolving the pretrial proceedings in one court would facilitate resolution of all claims in a timely manner without the risk of inconsistent rulings. II. The Northern District of Alabama is an Appropriate Forum In light of the substantial progress that has been made in the cases filed in the Northern District of Alabama, the number of cases filed in the Northern District of Alabama, and the residing in the Northern District of Alabama of 17 of the Plaintiffs with actions subject to the Motion for Transfer, that district would be a logical and convenient forum. The Northern District of Alabama is unquestionably the geographic “center of gravity” and focal point of this litigation. As the MDL Panel has repeatedly indicated, the geographic locus of duplicative litigation is the preferred forum for centralization of duplicative multi-district litigation. See In re Merscorp, Inc., 2007 WL 1287921, at *1 (holding that the Eastern District of Texas was the appropriate transferee forum in this docket since “one of the eleven actions is already pending in that district . . .”); In re Commer, Money Ctr., Inc. Equip. Lease Litig., 22*9 F. Supp. 2d 1379, 1380 (J.P.M.L. 2002) (centralizing litigation in the district “where almost half of the constituent actions are already pending.”); In re
  • 18. 12 Lupron Mktg & Sales Practices Litig., 180 F. Supp. 2d at 1378) (holding that the District of Massachusetts was the most appropriate transferee district for this litigations since “three of the four actions now before the Panel are already pending there.”). Moreover, since many of the actions against the Defendants have been filed in the Northern District of Alabama, transfer of all the Total Body Actions to that court can conserve judicial resources and minimize any inconvenience to the parties and the court. See In re Asbestos Prods. Liab. Litig. (No. VI), 771 F. Supp. 415, 422 (J.P.M.L. 1991) (transfer of actions to the district with the greatest number of pending actions is the most likely to effectuate “an overall savings of cost and a reduction of inconvenience to all concerned.”) Importantly, all defendants have appeared in the Northern District of Alabama cases. Additionally, the Judges in the Northern District of Alabama have particular experience with complex multi-party products liability litigation, such as presented here. See In re Silicone Gel Implant Litigation, 2:92-cv-10000 (transferred to N.D. Ala. June 25, 1992). Moreover, the Northern District of Alabama has already entered an Order consolidating 9 of the pending cases before one judge for discovery purposes, see 6/17/08 Consolidation Order in Wilkerson v. Total Body Essential Nutrition, 08-HGD-0626-S (N.D. Ala.), and is considering a request for consolidation of the remaining Northern District of Alabama cases.
  • 19. 13 CONCLUSION Accordingly, Plaintiffs respectfully request that this Panel grant Plaintiffs’ Motion for Transfer and Coordination of all actions to one district court for pretrial proceedings. _________________________ Archie C. Lamb, Jr. Counsel for Plaintiffs John W. Wilkerson, Bryan Hicks, David L. Dickens, Virginia R. Dickens, B. Chase Hicks, Ed Patalas, Jennifer Wood, Hazel White, Flora Doss, and James L. Kassner, Jr. OF COUNSEL: Archie C. Lamb, Jr. F. Inge Johnstone Tyrell F. Jordan THE LAMB FIRM, LLC 2900 1st Avenue South Birmingham, Alabama 35223 Phone: (205) 324-4644 Fax: (205) 324-4649 E. Kirk Wood (WOO046) Wood Law Firm, LLC P. O. Box 382434 Birmingham, Alabama 35233 (205) 612-0243
  • 20. 14 CERTIFICATE OF SERVICE This is to certify that on this day of July , 2008, a copy of Plaintiffs’ Memorandum of Law in Support of Plaintiffs’ Motion for Transfer and Coordination or Consolidation Pursuant to 28 U.S.C. § 1407 was served on the following: BY UNITED STATES MAIL Mark T. Waggoner (Counsel for Total Body) Leanna Bankester Pittard Hand Arendall, LLC 2001 Park Place North, Suite 1200 Birmingham, Alabama 35203 Rod Cate (Counsel for Total Body) Hand Arendall, LLC P. O. Box 123 Mobile, Alabama 36601 Glenn E. Ireland (Counsel for Texamerican) Sean C. Pierce Carr Allison 100 Vestavia Parkway Birmingham, Alabama 35216 D. Patterson Gloor (Counsel for Texamerican) Stephen P. Ellenbecker Gloor Law Group, LLC 225 West Wacker Drive, Suite 1700 Chicago, Illinois 60606
  • 21. 15 Duncan Y. Manley (Counsel for Wright) Christian & Small, LLP 505 20th Street North, Suite 1800 Birmingham, Alabama 35203-2696 Edgar D. Gankendorff (Counsel for Wright) Provosty & Gankendorff, LLC 650 Poydras Street, Suite 2700 New Orleans, Louisiana 70130 Jeffrey C. Rikard (Counsel for Cindi B. Howard; Marion Marsh, Rikard & Bryan, PC Howard; Joshua Taylor; Susan Renee 800 Shades Creek Parkway Taylor; Tony Taylor; John Snider; Marcella Suite 600-D Sparks) Birmingham, Alabama 35209 Carl Wesley Pittman (Counsel for Stockton Hess; Tammy Hess; Pittman & Perry Margaret Thompson; John Adams; Mary 432 McKenzie Ave Holland; Mary Holland as mother and next Post Office Box 710 friend of G.H., a minor; Richard Slay; Panama City, Florida 32401 and Tammy Slay) John Clark Davis (Counsel for Stockton Hess; Tammy Hess; Law Office of John Davis Margaret Thompson; John Adams; Mary 623 Beard Street Holland; Mary Holland as mother and next Tallahassee, Florida 32303 friend of G.H., a minor; Richard Slay; and Tammy Slay)
  • 22. 1 BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION ______________________________ ) IN RE: TOTAL BODY FORMULA ) MDL Docket No.: LITIGATION ) ______________________________ ) PLAINTIFFS’ SCHEDULE OF ACTIONS FOR TRANSFER AND COORDINATION OR CONSOLIDATION PURSUANT TO 28 U.S.C. § 1407 Pursuant to Rule 7.2(a)(ii) of the Rules of Procedure of the Judicial Panel on Multidistrict Litigation, Plaintiffs provide the following information on the actions that will be affected by their Motion for Transfer and Coordination Pursuant to 28 U.S.C . § 1407:
  • 23. 2 Plaintiffs Defendants District/Division Civil Action No. Judge Assigned John W. Wilkerson Total Body Essential Nutrition, Inc.; Wright Enrichment, Inc.; Texamerican Food Blending, Inc. N. D. Ala. (Southern) 08-HGD-0626-S Magistrate Judge Harwell Davis Bryan Hicks Total Body Essential Nutrition, Inc.; Wright Enrichment, Inc.; Texamerican Food Blending, Inc. N. D. Ala. (Southern) 08-AR-0627-S Judge William Acker David L. Dickens Total Body Essential Nutrition, Inc.; Wright Enrichment, Inc.; Texamerican Food Blending, Inc. N. D. Ala. (Southern) 08-HS-0712-S Judge Virginia Emerson Hopkins Virginia R. Dickens Total Body Essential Nutrition, Inc.; Wright Enrichment, Inc.; Texamerican Food Blending, Inc. N. D. Ala. (Southern) 08-BE-0713-S Judge Karen Bowdre Ed Patalas Total Body Essential Nutrition, Inc.; Wright N. D. Ala. (Southern) 08-IPJ-0758-S Judge Inge Johnson
  • 24. 3 Enrichment, Inc.; Texamerican Food Blending, Inc. B. Chase Hicks Total Body Essential Nutrition, Inc.; Wright Enrichment, Inc.; Texamerican Food Blending, Inc. N. D. Ala. (Southern) 08-PWG-0759-S Judge Paul Green Jennifer Wood Total Body Essential Nutrition, Inc.; Wright Enrichment, Inc.; Texamerican Food Blending, Inc. N. D. Ala. (Southern) 08-C-0827-S Judge Scott Coogler Hazel White on behalf of C.D. Total Body Essential Nutrition, Inc.; Wright Enrichment, Inc.; Texamerican Food Blending, Inc. N. D. Ala. (Southern) 08-P-0828-S Judge R. David Proctor Flora Doss Total Body Essential Nutrition, Inc.; Wright Enrichment, Inc.; Texamerican Food Blending, Inc. N. D. Ala. (Southern) 08-C-0949-S Judge Scott Coogler John Snider Total Body Essential Nutrition, Inc.; Wright Enrichment, Inc.; N. D. Ala. (Eastern) 08-HS-1009-E Judge Virginia Hopkins
  • 25. 4 Texamerican Food Blending, Inc.; St. John’s Nutrition Marcella Sparks Total Body Essential Nutrition, Inc.; Wright Enrichment, Inc.; Texamerican Food Blending, Inc.; St. John’s Nutrition N. D. Ala. (Southern) 08-RBP-1010-E Judge Robert Propst Susan Renee Taylor; and Tony Taylor Total Body Essential Nutrition, Inc.; Wright Enrichment, Inc.; Texamerican Food Blending, Inc.; St. John’s Nutrition N. D. Ala. (Eastern) 08-HS-1011-E Judge Virginia Hopkins Cindi B. Howard; Marion Howard; and Joshua Taylor Total Body Essential Nutrition, Inc.; Wright Enrichment, Inc.; Texamerican Food Blending, Inc.; St. John’s Nutrition N.D. Ala. (Eastern) 08-RBP-1012-E Judge Robert Propst James Kassner Total Body Essential Nutrition, Inc.; Wright Enrichment, Inc.; Texamerican Food N. D. Ala. (Southern) 08-PWG-1094-S Judge Paul Green
  • 26. 5 Blending, Inc. Stockton Hess; Tammy Hess; Margaret Thompson; John Adams; Mary Holland; Mary Holland as mother and next friend of G.H., a minor; Richard Slay; Tammy Slay; and all others similar situated Wright Pharma, Inc.; Wright Nutrition, Inc.; Wright Enrichment, Inc.; Wright Holdings, Inc.; Global Nutrition, LLC; Texamerican Food Blending, Inc.; Total Body Essential Nutrition, Inc.; and Horizon Health Care Systems, Inc. N.D. Fla. (Panama City) 08-RS-0200-RS- MD Assigned to Judge Richard Smoak; Referred to Magistrate Judge Miles Davis ______________________________ Archie C. Lamb, Jr. Counsel for Plaintiffs John W. Wilkerson, Bryan Hicks, David L. Dickens, Virginia R. Dickens, B. Chase Hicks, Ed Patalas, Jennifer Wood, Hazel White, Flora Doss, and James L. Kassner, Jr. OF COUNSEL: Archie C. Lamb, Jr. F. Inge Johnstone
  • 27. 6 Tyrell F. Jordan THE LAMB FIRM, LLC 2900 1st Avenue South Birmingham, Alabama 35223 Phone: (205) 324-4644 Fax: (205) 324-4649 E. Kirk Wood WOOD LAW FIRM, LLC P. O. Box 382434 Birmingham, Alabama 35233 (205) 612-0243 CERTIFICATE OF SERVICE
  • 28. 7 This is to certify that on this day of July , 2008, a copy of Plaintiffs’ Schedule of Actions was served on the following: BY UNITED STATES MAIL Mark T. Waggoner (Counsel for Total Body) Leanna Bankester Pittard Hand Arendall, LLC 2001 Park Place North, Suite 1200 Birmingham, Alabama 35203 Rod Cate (Counsel for Total Body) Hand Arendall, LLC P. O. Box 123 Mobile, Alabama 36601 Glenn E. Ireland (Counsel for Texamerican) Sean C. Pierce Carr Allison 100 Vestavia Parkway Birmingham, Alabama 35216 D. Patterson Gloor (Counsel for Texamerican) Stephen P. Ellenbecker Gloor Law Group, LLC
  • 29. 8 225 West Wacker Drive, Suite 1700 Chicago, Illinois 60606 Duncan Y. Manley (Counsel for Wright) Christian & Small, LLP 505 20th Street North, Suite 1800 Birmingham, Alabama 35203-2696 Edgar D. Gankendorff (Counsel for Wright) Provosty & Gankendorff, LLC 650 Poydras Street, Suite 2700 New Orleans, Louisiana 70130 Jeffrey C. Rikard (Counsel for Cindi B. Howard; Marion Marsh, Rikard & Bryan, PC Howard; Joshua Taylor; Susan Renee 800 Shades Creek Parkway Taylor; Tony Taylor; John Snider; Marcella Suite 600-D Sparks) Birmingham, Alabama 35209 Carl Wesley Pittman (Counsel for Stockton Hess; Tammy Hess; Pittman & Perry Margaret Thompson; John Adams; Mary 432 McKenzie Ave Holland; Mary Holland as mother and next Post Office Box 710 friend of G.H., a minor; Richard Slay; Panama City, Florida 32401 and Tammy Slay) John Clark Davis (Counsel for Stockton Hess; Tammy Hess; Law Office of John Davis Margaret Thompson; John Adams; Mary 623 Beard Street Holland; Mary Holland as mother and next
  • 30. 9 Tallahassee, Florida 32303 friend of G.H., a minor; Richard Slay; and Tammy Slay)
  • 31. BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION ______________________________ ) IN RE: TOTAL BODY FORMULA ) MDL Docket No.: LITIGATION ) ______________________________ ) PROOF OF SERVICE OF PLAINTIFFS’ MOTION FOR TRANSFER AND COORDINATION OR CONSOLIDATION PURSUANT TO 28 U.S.C. § 1407, MEMORANDUM OF LAW IN SUPPORT, AND SCHEDULE OF ACTIONS This is to certify that on this day of July , 2008, a copy of Plaintiffs’ Motion for Transfer and Coordination or Consolidation Pursuant to 28 U.S.C. § 1407, Memorandum of Law in Support, and Schedule of Actions was served on the following: BY UNITED STATES MAIL Mark T. Waggoner (Counsel for Total Body) Leanna Bankester Pittard Hand Arendall, LLC 2001 Park Place North, Suite 1200 Birmingham, Alabama 35203 Rod Cate (Counsel for Total Body) Hand Arendall, LLC P. O. Box 123 Mobile, Alabama 36601
  • 32. 2 Glenn E. Ireland (Counsel for Texamerican) Sean C. Pierce Carr Allison 100 Vestavia Parkway Birmingham, Alabama 35216 D. Patterson Gloor (Counsel for Texamerican) Stephen P. Ellenbecker Gloor Law Group, LLC 225 West Wacker Drive, Suite 1700 Chicago, Illinois 60606 Duncan Y. Manley (Counsel for Wright) Christian & Small, LLP 505 20th Street North, Suite 1800 Birmingham, Alabama 35203-2696 Edgar D. Gankendorff (Counsel for Wright) Provosty & Gankendorff, LLC 650 Poydras Street, Suite 2700 New Orleans, Louisiana 70130 Jeffrey C. Rikard (Counsel for Cindi B. Howard; Marion Marsh, Rikard & Bryan, PC Howard; Joshua Taylor; Susan Renee 800 Shades Creek Parkway Taylor; Tony Taylor; John Snider; Marcella Suite 600-D Sparks) Birmingham, Alabama 35209 Carl Wesley Pittman (Counsel for Stockton Hess; Tammy Hess; Pittman & Perry Margaret Thompson; John Adams; Mary 432 McKenzie Ave Holland; Mary Holland as mother and next Post Office Box 710 friend of G.H., a minor; Richard Slay; Panama City, Florida 32401 and Tammy Slay) John Clark Davis (Counsel for Stockton Hess; Tammy Hess; Law Office of John Davis Margaret Thompson; John Adams; Mary 623 Beard Street Holland; Mary Holland as mother and next Tallahassee, Florida 32303 friend of G.H., a minor; Richard Slay; and Tammy Slay)
  • 33. 3 Clerk of the United States District (served with Motion For Transfer only) Court for the Northern District of Florida 401 Southeast First Ave Room 243 Gainesville, Florida 32601 BY CM/ECF Clerk of the United States District (served with Motion For Transfer only) Court for the Northern District of Alabama 1729 Fifth Avenue North Birmingham, Alabama 35203 _________________________ OF COUNSEL