In re ELI LILLY & COMPANY "ORAFLEX" PRODUCTS LIABILITY LITIGATION.

*423 Before ANDREW A. CAFFREY, Chairman, ROBERT H. SCHNACKE, FRED DAUGHERTY, SAM C. POINTER, Jr.,^[*] S. HUGH DILLIN, MILTON POLLACK,^[*] and LOUIS H. POLLAK, Judges of the Panel.

ORDER DENYING TRANSFER

PER CURIAM.

Presently before the Panel is a motion, pursuant to 28 U.S.C. § 1407, filed by plaintiffs in one action pending in the Eastern District of Michigan in this docket, to centralize in the Southern District of Ohio for coordinated or consolidated pretrial proceedings the 27 actions^[1] listed on the attached Schedule A.

On the basis of the papers filed and the hearing held, we find that Section 1407 transfer would neither serve the convenience of the parties and witnesses nor further the just and efficient conduct of the litigation. Although we recognize that the actions in this litigation involve some common questions of fact, we are not persuaded that these common questions of fact will, in the future course of this litigation, predominate over individual questions of fact present in each action. We note that 1) plaintiffs in actions that are concluded or well advanced have conducted extensive discovery of defendant Eli Lilly and Company (Lilly) in areas of common factual inquiry; and 2) at oral argument in this matter, counsel for Lilly stated his willingness to make this common discovery applicable in those actions that are not far advanced, in order to eliminate the possibility of duplicative discovery in this litigation. We further note that one related action has already been tried in the Middle District of Georgia, another action has been settled in the Eastern District of Virginia, and several other actions have been scheduled for trial within the next six months. Under these circumstances, we cannot conclude that centralization of the actions in this litigation under Section 1407 will further the purposes of the statute. See In re Asbestos and Asbestos Insulation Material Products Liability Litigation, 431 F. Supp. 906, 910 (J.P.M.L.1977).

IT IS THEREFORE ORDERED that the motion for transfer, pursuant to 28 U.S.C. § 1407, be, and the same hereby is, DENIED.

*424 SCHEDULE A

Middle District of Alabama

Audria Barker, et al. v. Eli Lilly & Company, C.A. No. 83H-0610-S

Northern District of Alabama

Roderick P. Donnelly, et al. v. Eli Lilly & Company, C.A. No. CV-83-1517S

Glenda Nelms, etc. v. Eli Lilly & Company, C.A. No. CV-83-PT-0891S

Southern District of Alabama

Austin Pettaway v. Eli Lilly & Company, C.A. No. 82-0818-C

Central District of California

Charlene Lastra v. Eli Lilly & Company, C.A. No. 83-1668

Southern District of Florida

Adele Hellman, et al. v. Eli Lilly & Company, C.A. No. 82-6614

Middle District of Georgia

Angela M. Buchanan, et al. v. Eli Lilly & Company, C.A. No. 83-0002

Sara Ray v. Eli Lilly & Company, C.A. No. 83-0023-ALB

Northern District of Georgia

Louis B. Bradley v. Eli Lilly & Company, C.A. No. C-83-1349-A

Eastern District of Louisiana

Carolyn Hammet v. Eli Lilly & Company, C.A. No. 83-2645

Hazel B. Pizani, et al. v. Eli Lilly & Company, C.A. No. 83-2551

Middle District of Louisiana

Carolina L. Polozola, et al. v. Eli Lilly & Company, C.A. No. 83-751A

District of New Jersey

Mary Fertitta, et al. v. Eli Lilly & Company, C.A. No. 83-1414

Southern District of Ohio

Maxine Hart, et al. v. Eli Lilly & Co., C.A. No. C-1-83-1765

Eastern District of Pennsylvania

Rose Butler v. Eli Lilly & Company, C.A. No. 83-2915

Robert Maier v. Eli Lilly & Company, C.A. No. 83-2605

Middle District of Pennsylvania

Louis N. Domiano, et al. v. Eli Lilly & Company, C.A. No. CV-82-0982

Western District of Tennessee

Roselyn Espey v. Eli Lilly & Company, C.A. No. 82-1184

Jimmie N. Rodgers, et al. v. Eli Lilly & Company, C.A. No. 83-2491-GA

Southern District of Texas

Theodore Crumby, Jr., et al. v. Eli Lilly & Company, C.A. No. G-82-525

Eastern District of Texas

Doris E. Scales, et al. v. Eli Lilly & Company, C.A. No. 83-0073-CA

Western District of Michigan

Dortha M. Wolf, et al. v. Eli Lilly & Company, C.A. No. 82-399-CA4

Eastern District of Michigan

Frederick Domanski, et al. v. Eli Lilly & Company, C.A. No. 83CV0499DT

Larry See, et al. v. Eli Lilly & Company, C.A. No. 83CV4223DT

Velma Phillips v. Eli Lilly & Company, C.A. No. 83CV1686

Janet Kapala v. Eli Lilly & Company, C.A. No. 83CV8356FL

Alyce LeRoy, et al. v. Eli Lilly & Company, C.A. No. 83CV7320B

NOTES

[*] Judge Milton Pollack recused himself and took no part in the decision of this matter. In addition, Judge Sam C. Pointer, Jr. took no part in the decision of this matter.

[1] The motion, as amended, seeks centralization of 30 actions. The schedule of actions, however, included one action—Lottie Seltzer v. Eli Lilly & Company, S.D. Alabama, C.A. No. 83-0335 —that was dismissed on October 31, 1983. Another action included on the schedule—Clarence Borom v. Eli Lilly & Company, M.D. Georgia, C.A. No. 83-0038-COL—was tried in November, 1983, resulting in a verdict and judgment for plaintiff. A third action included on the schedule—Chong Ho Kim, et al. v. Eli Lilly & Company, E.D. Virginia, C.A. No. 83-0695-A— has been settled. Thus the Section 1407 motion, as amended, encompasses a total of 27 actions presently in pretrial in federal district courts.