1. Mass Torts and
Multidistrict Litigation
(MDL)
Will Maiberger
Watts Guerra Craft LLP

2. Overview
Origin & Purposes
The United States Judicial Panel on
Multidistrict Litigation, known informally
as the MDL Panel, was created by an Act
of Congress in 1968 – 28 U.S.C. §1407.

3. Overview
Origin & Purposes
The job of the Panel is to:
(1) determine
whether civil actions pending in different
federal districts involve one or more common
questions of fact such that the actions should be
transferred to one federal district for coordinated or
consolidated pretrial proceedings; and
(1) select
the judge or judges and court assigned to
conduct such proceedings.

4. Overview
Origin & Purposes
The purposes of this transfer or “centralization”
process are to avoid duplication of discovery,
to prevent inconsistent pretrial rulings, and to
conserve the resources of the parties, their
counsel and the judiciary. Transferred actions
not terminated in the transferee district are
remanded to their originating transferor districts
by the Panel at or before the conclusion of
centralized pretrial proceedings.

5. Overview
Historical Summary
Since its inception, the Panel has considered motions
for centralization in over 2,000 dockets involving
more than 300,000 cases and millions of claims
therein. These dockets encompass litigation
categories as diverse as airplane crashes; other
single accidents, such as train wrecks or hotel fires;
mass torts, such as those involving asbestos, drugs
and other products liability cases; patent validity and
infringement; antitrust price fixing; securities fraud;
and employment practices.

6. Overview
Membership of the MDL Panel
The MDL Panel consists of seven sitting
federal judges, who are appointed to serve on
the Panel by the Chief Justice of the United
States. The multidistrict litigation statute
provides that no two Panel members may be
from the same federal judicial circuit.

7. Panel Judges


  


Current Judges
John G. Heyburn II, Chairman, United States District Court, Western
District of Kentucky;
Robert L. Miller, Jr., United States District Court, Northern District of
Indiana;
Kathryn H. Vratil, United States District Court, District of Kansas;
David R. Hansen, United States Court of Appeals, Eighth Circuit;
W. Royal Furgeson, Jr., United States District Court, Northern District of
Texas;
Frank C. Damrell, Jr., United States District Court, Eastern District of
California; and
Barbara S. Jones, United States District Court, Southern District of New
York

9. Checklist & Samples for Filing New MDL
Motion for 28 U.S.C. §1407 Transfer
Court Rules for the Judicial Panel on
Multidistrict Litigation cited @
199 F.R.D. 425
http://www.jpml.uscourts.gov/Checklist_fo
r_New_MDL_Motion-04-2010.pdf

10. Checklist for Filing Notice of Opposition to
Conditional Transfer Order (CTO) and
Motion and Brief to Vacate CTO
Court Rules for the Judicial Panel on Multidistrict
Litigation cited @
199 F.R.D. 425, 435
http://www.jpml.uscourts.gov/Rules___Procedures
/JPML-Notice-of-Opposition-Checklist-112009.pdf
http://www.jpml.uscourts.gov/JPML-SampleNotice-of-Opposition-11-2009.pdf

11. Amended Panel Rules
(effective October 4, 2010)
In conjunction with the transition to CM/ECF, the Panel
Rules Working Group proposed changes to the Panel’s
Rules of Procedure to accommodate electronic case filing
as well as update the Rules and make them more userfriendly. The Rules were adopted by General Order on
September 8, 2010, and are effective on October 4, 2010.
http://www.jpml.uscourts.gov/General_Order_Amend
ing_Panel_Rules_and_Panel_Rules-9-8-10_Effective_104-10.pdf

12. FAQs
http://www.jpml.usco
urts.gov/Rules___Proce
dures/JPML-FAQRevised_4-1-09.pdf

13. A View from the Panel: Part of the Solution
John G. Heyburn II
Tulane Law Review (2008)
The Article Can be Found at:
http://www.jpml.uscourts.gov/PartoftheSol
ution_Heyburn.pdf

14. The Article traces the development of the Judicial Panel on
Multidistrict Litigation and its role in the management of
complex litigation before providing an overview of its current
practices and future direction. Its purpose is to provide the
reader with some insight into the Panel’s operations, to
suggest how those operations have generally benefitted
litigants in complex multidistrict cases, and to confirm the
Panel’s intention to continue addressing the challenges that
multidistrict litigation poses. In doing so, the Article provides
comprehensive statistics that dispel a number of myths about
multidistrict litigation and confronts concerns expressed by
practitioners and academics about such varied topics as the
time allotted to oral argument, the factors involved in
selecting the transferee court, and the standards for
transferring and remanding cases. The Article concludes with
a look toward the role the Panel hopes to play in the future of
complex litigation.

16. SNS with Flexipel
An Unreasonably Dangerous
and Defective Product

17. No Testing of Flexipel

18. ICT’s Bruce Baker, Ph.D.
Q. Did ICT do any aerosol
testing on [Flexipel] S22WS?
A. No.
Q. Dr. Baker, did you ever
take any action to confirm
the particle size
information that was given
to you by SLR?
A. No.
Q. Do you have any
experience at all in your
career in doing any type of
inhalation aerosol testing?
A. Oh, no. No experience.

19. Foreseeable Use by Consumers
Use in confined
areas with poor
ventilation
Use without
respiratory
equipment or
masks
Use without eye
protection
Use without fans or
exhaust ventilation
equipment

21. Notice and Recall
Negligence and Gross Negligence

22. First Notice of Claims
May 2005

23. Stephanie Perilli - Home Depot
Risk Management Director
Q.
A.
Q.
A.
So there was a notice of claim
to Home Depot from Mr. Cox
on May 13th of 2005, correct?
Yes.
In your experience as the
director of the risk
management area from late
2003, early 2004, through
March of 2006, can you think
of any other product besides
SNS where there was notice
to Home Depot on at least 11
or 12 occasions of people
getting sick from using a
product in a three-month
period?
Nothing comes to mind right
now.

24. Rich Tripodi - Roanoke
President and CEO
Q. Do you believe May 16,
2005 is the first Chemtrec
report, even though it
may not have gotten in to
you-all for a few days
after that?
A. I believe around May
16th. I was out of the
office for a period of time
at the end of May.
Q. But from the standpoint of
[Roanoke], you-all
received that on May the
19th.
A. I would have to assume
we did, yeah, uh-huh.

25. Michelle Kascak - Roanoke
Vice-President of R&D
Q.
A.
Q.
A.
Q.
A.
When did you first become
aware of injury claims being
made?
May 31st [2005].
How did you become
aware?
I spoke to a gentleman
whose father has used the
product.
Before May 31st of 2005,
nobody within Roanoke ever
told you anything about
there being any complaints
from consumers about
getting sick from using SNS,
is that correct?
That’s my recollection.

26. Michelle Kascak - Roanoke
Vice-President of R&D
Exhibit 47: June 17, 2005 e-mail to
Rich Tripodi
“I just spoke with Dr. Al
Bronstein of the Rocky
Mountain Poison Control
Center. He advised me that he
has been in conversation with
Chemtrec and is now aware of
increasing number of health
emergency calls related to the
use of SNS. In light of the
overwhelming calls Chemtrec
reports receiving and the
hospitalizations he has
discovered, he feels that it is his
responsibility to report SNS to
the Consumer Products Safety
Comission as a consumer
hazard.”

27. Michelle Kascak - Roanoke
Vice-President of R&D
Q.
A.
Q.
A.
Q.
A.
So am I correct to say the
first time the Consumer
Products Safety
Commission learned about
the SNS problem was from
Dr. Bronstein and not from
Roanoke?
That’s not correct.
It’s not?
That is not correct.
Okay. Tell us what’s
correct, then.
I contacted the Consumer
Products Safety
Commission that same
day.

28. Rich Tripodi - Roanoke
President and CEO
Q.
A.
Q.
A.
When you write, “we are doing
everything we can to convince
Home Depot that there is no
reason to take these batches
off the shelf,” were you
already getting pressure from
Home Depot to get them off
the shelf?
No. Actually what I was
referring to was taking the
whole product away from
Home Depot. It was a
successful product that had
sold many cans, 1.3 million,
before the problem. And the
issue was, how do we deal
with this issue?
Without losing the account?
Without losing the business.

30. Michelle Kascak - Roanoke
Vice-President of R&D
Q. On July 14, 2005,
Roanoke had knowledge
of over 40 people that
had to go to the
emergency room and
they also had knowledge
that one of their own
employees got sick from
using the product, right?
A. Yes.
Q. And then they decided to
recall the product,
correct?
A. Yes.

31. Exhibit 351 - Home Depot
Product Recall Process
“We will most likely lead the recall
process for our proprietary-branded
products, and any Home Depotbranded or private label products.”

32. Marcia Cowan - Home Depot
Corporate Rep. & Lawyer
Q. In August or September
of 2005, did Home Depot
have any sort of
procedure or policies in
place where it would
verify and confirm that a
specific product such as
SNS, when a vendor
represents to you that it
has been all removed
from the shelves, that it
actually has been done
and that’s actually the
case?
A. No. You know, we’re a
retailer. We rely on our
vendor.

33. Marcia Cowan - Home Depot
Corporate Rep. & Lawyer
Q.
A.
Q.
A.
Home Depot never sent any
communication directly to its
own stores or to its own
managers or to its own store
employees explaining the
situation where cans may have
made their way back onto the
shelves and how to prevent that
from happening in the future,
correct?
Not specifically as to this
product.
At this time, August 30th of
2005, did Home Depot have
any concern that there might be
affected product on the shelves
in the Denver market or any
other market besides San
Antonio?
Not based on the
representations of Roanoke.

34. Exhibit 285 - Sept. 2, 2005
Correspondence on Audit
E-mail
from Cowan to Tripodi:
“Please advise how much bad
product was found. [Your] e-mail
says “limited qty”
E-mail from Tripodi to Cowan:
“Total cans found is 2,637.”
Majority of stores at zero, but some
stores still had up to 219 bad cans.

36. Injuries and Damages

37. Henry Spiller - Toxicologist
Initial Symptoms
Pulmonary Injury Suggesting
a Chemical Pneumonitis

38. Henry Spiller - Toxicologist
Permanent Impairment Cases

Shortness of Breath with Exertion

Decreased Exercise Tolerance

Positive Methacholine Challenge Suggestive of
Reactive Airway Disease (RADs)

Reduced Pulmonary Function Tests

Reduced Diffusion Capacity

39. END