OPINION AND ORDER
The Panel has previously transferred, pursuant to 28 U.S.C. § 1407, actions in this litigation to the District of Kansas and, with the consent of that court, assigned them to the Honorable Frank G. Theis for coordinated or consolidated pretrial proceedings.
The transferee judge has reported to the Panel that common discovery relating to product liability has been completed in the transferee district. Three months ago the Panel considered the objections of Robins to the transfer of nineteen potential tag-along actions that were pending in the Northern District of California. The Panel denied transfer with respect to those nineteen actions, holding in relevant part as follows:
In re A. H. Robins Co., Inc. "Dalkon Shield" IUD Products Liability Litigation, Docket No. 211 (J.P.M.L., Oct. 7, 1980) (unpublished order).
The first above-captioned action (Costello) was brought against Robins in July, 1980. Plaintiff is a woman who alleges that she suffered injuries from using the Dalkon Shield which required her to undergo a hysterectomy. Plaintiff seeks recovery under theories of negligence, fraud and malice, failure to warn, and breach of warranties.
The second above-captioned action (Soucy) was brought against Robins in August, 1980. Plaintiffs are a husband and wife who allege that the wife suffered permanent injuries as a result of using the Dalkon Shield. Plaintiffs seek recovery under theories of negligence, gross negligence, strict liability, and breach of express and implied warranties.
The remaining three above-captioned actions (the Northern District of California actions) also incorporate allegations against Robins based on theories of negligence, breach of warranties, and/or strict liability in tort.
Because Costello, Soucy and the Northern District of California actions appeared to
We find that transfer of Costello, Soucy and the Northern District of California actions at this time would not serve the convenience of the parties and witnesses or promote the just and efficient conduct of the Dalkon Shield litigation. Accordingly, we vacate the conditional transfer orders entered with respect to the five actions.
Although we recognize that these actions share questions of fact with actions previously transferred in this litigation, we are not persuaded that transfer under Section 1407 remains appropriate for newly filed actions in this docket. This litigation has been pending for over five years and discovery of common issues has been completed in the transferee district. This completed discovery can be made available to the parties in the actions before the Panel without recourse to Section 1407. For example, the judges to whom the five actions are assigned could issue orders to show cause why all discovery heretofore completed in the transferee district should not be made applicable to the actions. See Manual for Complex Litigation, Parts I and II, §§ 3.11 (rev. ed. 1977). Judge Theis, as transferee judge, has also prepared a final pretrial order
Finally we note that the use of alternatives to transfer under Section 1407 will eliminate the problems of coordination faced by courts that have been attempting to structure proceedings in their respective districts which encompass both remanded Dalkon Shield actions and newly filed Dalkon Shield actions.
IT IS THEREFORE ORDERED that the conditional transfer orders concerning the actions entitled Susan Costello v. A. H. Robins Co., Inc., D. Nebraska, C.A. No. 80-0-460; Carol Soucy, et al. v. A. H. Robins Co., Inc., D. New Hampshire, C.A. No. C-80-384-D; Jo Ann Cowan v. A. H. Robins Co., Inc., et al., N.D. California, C.A. No. C-80-3086-SW; Claire C. Sharpe v. A. H. Robins Co., Inc., et al., N.D. California, C.A. No. C-80-3099-SW; and Angela Gallop v. A. H. Robins Co., Inc., et al., N.D. California, C.A. No. 80-3138-SW, be, and the same hereby are, VACATED.