Case ILN/1:17-cv-04759 Document 9 Filed 11/27/17 Page 1 of 7 BEFORE THE UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION IN RE: ) ) SORIN 3T HEATER-COOLER ) LITIGATION, ) ) MDL No. 2816 This Document Relates To: ) ) Kmak v. LivaNova Deutschland ) GMBH, et. al. 1:17-cv-04759 ) INTERESTED PARTIES' OPPOSITION TO MOTION FOR TRANSFER AND COORDINATION OR CONSOLIDATION UNDER 28 U.S.C. 1407 Pursuant to Rule 6.2(e) of the Rules of Civil Procedure of the United States Judicial Panel on Multidistrict Litigation ("the Panel"), Plaintiff, Susan Kmak, as independent administrator of the estate of Michael Kmak, deceased (herein after referred to as "Plaintiff"), opposes transfer and consolidation under 28 U.S.C. 1407. Further, the Plaintiff herein joins the other Oppositions filed before this panel on behalf of the additional plaintiffs who had filed causes of action against the named Defendants. The Plaintiff notes that the instant cause of action was filed on June 26, 2017 in the United States District Court of the Northern District of Illinois. Since its filing, the parties have engaged in some exchange of discovery and are currently engaged in motion practice as a pending motion to dismiss is before the Honorable Judge Bucklo of the Northern District of Illinois. At this time, Plaintiff is unaware of any other causes of action that have been filed in the state of Illinois. Transfer and consolidation will not serve the convenience of the collective parties and witnesses, particularly in Plaintiff's Action and would frustrate the just and efficient conduct of this litigation because: 1) a significant disparity exists among the subject actions, particularly the instant action as compared to many others as this cause of action involves the death of Michael 1
Case ILN/1:17-cv-04759 Document 9 Filed 11/27/17 Page 2 of 7 Kmak while many of the other actions were recently filed as medical monitoring cases; 2) on information and belief the other subject actions are filed outside of the state of Illinois and have already benefitted from shared discovery and informal consolidation in geographic regions while the instant cause shares no medical treatment or shared geography with any other causes of action; and 3) the subject actions allege different theories of liability and thus require different discovery regarding the origin of the NTM contamination in Defendants' heater coolers and additionally Plaintiff's causes of action contains counts of wrongful death and survival actions under Illinois state statutes. For the reasons set forth more fully below, this Panel should deny transfer and centralization outright or, in the alternative, exclude the Kmak action from its consolidation order. I. STANDARD OF REVIEW Under 28 U.S.C. 1407, the Panel has discretion to transfer and consolidate similar actions pending in different districts to maximize the convenience of the parties and witnesses and promote the just and efficient conduct of the actions. 28 U.S.C. 1407(a). While appropriate under certain circumstances, "centralization under Section 1407 should be the last solution after considered review of all other options." In re Best Buy So., Inc., Cal. Song-Beverly Credit Card Act Litig., 804 F. Supp. 2d 1376, 1378 (J.P.M.L. 2011); In re: Gerber Probiotic Prods. Mktg. & Sales Practices Litig., 8999 F. Supp. 2d 1378, 1379 (J.P.M.L. 2012). The Panel acknowledges three broad circumstances, all present here, that make the case for centralization less compelling: (1) when the actions entail significant localized discovery, (2) the defendants and/or some of the plaintiff oppose centralizations, where (3) only a few actions or procedurally dissimilar actions are involved in the litigation. In re: CVS Caremark Corp. Wage and Hour Emp't Practices Litig. 684 F. Supp. 2d 1377, 1379 (J.P.M.L. 2010). 2
Case ILN/1:17-cv-04759 Document 9 Filed 11/27/17 Page 3 of 7 Centralization is frequently denied where cooperation among the parties and deference among the courts can minimize the possibilities of duplicative discover or inconsistent pretrial rulings. In re Eli Lilly and Co. (Cephalexin Monohydrate) Patent Litig., 446 F. Supp. 242, 244 (J.P.M.L. 1978); In re Adderall XR (Amphetamine/Dextroamphetamine) Mktg., Sales Practices & Antitrust, 968 F. Supp. 2d 1343, 1345 (J.P.M.L. 2013); In re OSF Healthcare Sys. Emple. Ret. Income Sec. Act Erisa Litig., 2016 U.S. Dist. LEXIS 172583* (J.P.M.L. Dec. 7, 2016); see also Manual for Complex Litigation, Fourth 20.14 (2004). In considering centralization, the Panel must also consider whether the disruption of plaintiff's choice of forum is necessary to achieve efficiencies and promote justice. Evans v. Equinox Holdings, Inc. (In re Equinox Fitness Wage & Hour Empl. Practices Litig.), 764 F. Supp. 2d 1347, 1348 (J.P.M.L. 2011). II. ARGUMENT When there is a significant procedural disparity among the actions, the Panel must take a closer look at whether the movant has met its burden of demonstrating that centralization will still serve the purposes of 28 U.S.C. 1407. In re Brandywine Communs. Techs., LLC, 959 F. Supp. 2d 1377 (J.P.M.L. 2013)(citing In re La.-Pacific Corp., 867 F. Supp. 2d 1346 (J.P.M.L. 2012). Here, centralization is inappropriate because significant procedural disparity exists among the subject actions. Firstly, you have a disparity in the time frames for filing. Many of these cases have just been filed this month, some have been pending for over a year, and the instant case was filed over five months ago. Secondly, the majority of cases are medical monitoring cases. However, in the instant Kmak action, Michael Kmak is deceased from the infection causes by the medical device. Thus, with respect to the Kmak action, discovery and pretrial preparation will likely be highly localized and consolidation to the northern region of 3
Case ILN/1:17-cv-04759 Document 9 Filed 11/27/17 Page 4 of 7 Illinois and the northwest region of Indiana, which encompasses the areas that the decedent received surgery with the Sorin 3T device and where his post-surgical treatment occurred, as well as where he died. Plaintiff is also aware that significant discovery has already taken place in the Anapol Weiss actions, which could streamline the process for any overlapping witnesses. However, the vast majority of witnesses in the Kmak action, both medical and lay, reside in Chicagoland area of Illinois and the northwest region of Indiana. Upon information and belief, a protective order could be entered into by the parties, as other subject actions have done, which could permit sharing of discovery and this would greatly reduce the possibility of duplicative document discovery. The Kmak plaintiff are amendable to entering into a similar protective order. B. Many of the Subject Actions are Already Informally Consolidated As indicated in the oppositions filed by counsel for the Anapol Weiss plaintiffs and again by counsel for the Reed plaintiff, in addition to protective orders that can be entered into that contemplate sharing amongst the subject actions, roughly half of the subject actions are already informally "consolidated" for pre-trial purposes in geographical regions. Specifically, all nine cases in the state of Iowa, all ten cases in the state of South Carolina, and the three federal cases in the state of Pennsylvania. Importantly, the Kmak Action is the one and only case currently filed in the state of Illinois and therefore aside from possible sharing of certain discovery completed by the corporate entities, there is no other duplicative discovery to be completed in the Kmak Action that would affect any of the other filed cases. C. The Subject Actions Allege Different Theories of Liability As previously argued before this Panel in February 2017, the subject actions still concern different bacteria and different theories of liability with respect to product defect, causation, and 4
Case ILN/1:17-cv-04759 Document 9 Filed 11/27/17 Page 5 of 7 damage still exists today. Additionally, as the Kmak action involves a decedent, who died in Indiana, there will be significant localized discovery and centralization should be denied in cases where actions entail significant localized discovery. In re: CVS Caremark Corp. Wage and Hour Emp't Practices Litig. 684 F. Supp. 2d at 1379. Moreover, centralization should be denied because unlike a majority of the subject actions, Kmak asserts Illinois wrongful death and survival causes of action as Kmak involves an individual who died as a result of infection caused by the Sorin 3T device. Therefore, unlike a majority of the other subject actions, that are mainly medical monitoring cases, the instant case contains different causes of action as it involves a death. In re Electrolux Dryer Prods. Liab. Litig., 978 F. Supp. 2d 1376, 1377 (J.P.M.L. 2013) (denying centralization, in part, because differing theories of liability predominated over common ones). D. The Kmak Action Should Not Be Considered For Centralization In the event that the Panel is inclined to grant centralization, the Kmak Plaintiff requests that the Kmak action be excluded from such consolidation. As stated, the Kmak action involves a death, is the only cause of action filed in the state of Illinois, and involves witnesses, including doctors, who all reside in the Chicagoland area of Illinois and in the northwest region of Indiana. Therefore, centralizing the Kmak action for discovery and pretrial purposes would have minimal effect at streamlining the discovery process as most of the discovery in the Kmak action would not be duplicative and could not be shared among the other cases. However, any discovery done that may duplicative among the other cases could easily be shared to the Kmak action without needing to unnecessarily centralize the entire case. 5
Case ILN/1:17-cv-04759 Document 9 Filed 11/27/17 Page 6 of 7 III. CONCLUSION For the foregoing reasons, transfer and consolidation will not serve the convenience of the collective parties and witness or promote the just and efficient conduct of this litigation. Kmak respectfully requests that the Panel deny centralization or, in the alternative, exclude the Kmak Action from any consolidation order. Respectfully Submitted, Dated: November 27, 2017 Dean J. Caras Attorney for Plaintiff CARAS LAW GROUP 320 W. Illinois Street, Suite 2112 Chicago, IL 60654 Phone: 312.494.1500 Email: dean.caras@deancaras.com Dean J. Caras 6
Case ILN/1:17-cv-04759 Document 9 Filed 11/27/17 Page 7 of 7 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Opposition to Motion for Transfer and Coordination or Consolidation Under 28 U.S.C. 1407 was served electronically via CM/ECF system, which will automatically serve and send email notification of such filing to all registered attorneys of record. This 27th day of November, 2017. Dean J. Caras 7