597 F. Supp. 2d 1377 (2009)

In re YAMAHA MOTOR CORP. RHINO ATV PRODUCTS LIABILITY LITIGATION.

MDL No. 2016.

United States Judicial Panel on Multidistrict Litigation.

February 13, 2009.

Before JOHN G. HEYBURN II, Chairman, J. FREDERICK MOTZ, ROBERT L. MILLER, JR., KATHRYN H. VRATIL, DAVID R. HANSEN^[*], W. ROYAL FURGESON, JR., and FRANK C. DAMRELL, JR., Judges of the Panel.

TRANSFER ORDER

JOHN G. HEYBURN II, Chairman.

Before the entire Panel^[*]: Plaintiffs in seventeen actions have moved, pursuant to 28 U.S.C. § 1407, for coordinated or consolidated pretrial proceedings of this litigation. Movants recommend several choices as a suitable transferee district. Plaintiffs in seventeen additional federal court actions support the motion. Various Yamaha related and other defendants oppose centralization or, alternatively, support centralization in the Northern District of Georgia or the Middle District of Tennessee. Three other defendants and plaintiffs in four other actions oppose centralization. Plaintiff in an action pending in Illinois state court supports centralization and requests that the Panel allow related state court actions to participate in discovery from the Yamaha defendants.

This litigation currently consists of 55 actions listed on Schedules A and B and pending in 33 districts.^[1] Each case contains *1378 allegations of a separate off-road accident involving a Yamaha Rhino all-terrain vehicle, which is designed, manufactured, marketed, and distributed by Yamaha. Many of the drivers appear to have sustained crushing injuries from the heavy roll bar after a rollover accident. Though the product and the alleged defect are the same in each case, the precise mechanism of the accident and causation is likely to vary in the circumstances. The product itself was introduced in 2003 and remains marketed and sold today without change of design, though Yamaha has offered owners the option of having doors installed. The first case in this litigation appears to have been filed in August 2007. However, about 40 of the current cases were filed in 2008. Additional cases are likely to follow.

The motion currently pending presents several difficult issues for the Panel. Certainly, these actions share many factual and technical questions arising from allegations of common defects in the Yamaha Rhino. Each action alleges that the Yamaha Rhino has a propensity to tip over and some allege that it fails to safely contain its occupants in such tip over incidents. Centralization under Section 1407 will eliminate duplicative Yamaha discovery; prevent inconsistent pretrial rulings; and conserve the resources of the parties, their counsel and the judiciary. This would benefit all parties.

Some parties here, including some plaintiffs and at least one defendant, have emphasized the need and value of coordinated discovery by suggesting that Yamaha has not been forthcoming with discovery in a number of the individual cases. The Panel has always been appropriately careful not to base its rulings upon our own perception of discovery dynamics within a particular group of cases. Regardless of whether discovery resistance is indeed a problem in this litigation, it appears that discovery disputes have arisen in several actions. Centralization will enable the transferee judge to make consistent rulings on such discovery disputes from a global vantage point.

In opposing centralization, certain parties argue, inter alia, that (1) discovery in each action will be dominated by unique, individualized factual questions about each particular accident, such as causation, plaintiff or third-party fault, and vehicle maintenance or modification; and (2) Yamaha has already cooperated with plaintiffs' counsel to informally coordinate discovery, and consequently, these actions are moving along at an efficient pace. These arguments certainly have merit, but they are not conclusive. Transferee judges have demonstrated the ability to accommodate common and individual discovery tracks, gaining the benefits of centralization without delaying or compromising consideration of claims on their individual merits. We believe that such an approach is viable here. We are informed in this judgment by our positive experience with other similar MDLs, such as the Bridgestone tire cases, in which centralization seems to have facilitated this dual approach. See, e.g., In re Vioxx Products Liability Litigation, 360 F. Supp. 2d 1352, 1354 (Jud.Pan. Mult.Lit.2005); In re Bridgestone/Firestone, Inc., ATX, ATX II and Wilderness Tires Products Liability Litigation, No. 1373, 2000 WL 33416573, *2, 2000 U.S. Dist. LEXIS 15926, at *7 (J.P.M.L. Oct. 24, 2000).

Consequently, the Panel's judgment is that, on balance, transfer of these cases under Section 1407 will allow a single judge to formulate a pretrial program that prevents repetition of previously considered matters and allows pretrial procedures on case specific issues to proceed concurrently with pretrial proceedings on *1379 common issues. See, e.g., In re Multi-Piece Rim Products Liability Litigation, 464 F. Supp. 969, 974 (Jud.Pan. Mult.Lit.1979).^[2]

Several plaintiffs have suggested that their actions are too far advanced to benefit from centralized proceedings, and have requested exclusion from the MDL. We are persuaded that the Northern District of Alabama Clark and Northern District of Texas White actions, listed on Schedule B, should not be included in centralized proceedings. Both actions appear to be relatively well advanced, with discovery nearing completion, trial dates set, and no responding party to either action favoring transfer. When any transferred action becomes ready for trial, the transferee judge may suggest that the Panel remand the action to the transferor court. See Rule 7.6, R.P.J.P.M.L., 199 F.R.D. at 436-38. Additionally, any plaintiff may present an individual motion to remand to state court to the transferee court. See, e.g., In re Ivy, 901 F.2d 7 (2nd Cir.1990); In re Prudential Insurance Company of America Sales Practices Litigation, 170 F. Supp. 2d 1346, 1347-48 (Jud.Pan. Mult.Lit.2001).

Given the wide dispersal of these actions across the country, no forum stands out as a focal point for this litigation. Judge Jennifer B. Coffman is an experienced judge in a central location with the time and commitment necessary to steer these cases on a fair and expeditious course. We have selected her as the transferee judge. Judge Coffman has a dual designation in the Eastern and Western Districts of Kentucky. The MDL is assigned to the Western District (Louisville Division) to provide somewhat easier access.

IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, the 53 actions listed on Schedule A are transferred to the Western District of Kentucky and, with the consent of that court, assigned to the Honorable Jennifer B. Coffman for coordinated or consolidated pretrial proceedings.

IT IS FURTHER ORDERED that transfer under Section 1407 of the two actions listed on Schedule B is denied.

SCHEDULE A

Northern District of Alabama Richard A. McCurdy v. Yamaha Motor Co., Ltd., et al., C.A. No. 2:07-2096 Margaret Ashley Ford v. Yamaha Motor Co., Ltd., et al., C.A. No. 2:08-782 District of Arizona Myron Jones, et al. v. Yamaha Motor Co., Ltd., et al., C.A. No. 2:07-1718 Brandon Boyd v. Yamaha Motor Co., Ltd., et al., C.A. No. 2:08-220 Daniel Widney v. Yamaha Motor Co., Ltd., et al., C.A. No. 2:08-812 Alexandria daCosta, et al. v. Yamaha Motor Corp., USA, et al., C.A. No. 2:08-1583 Eastern District of Arkansas Colton Grabher v. Yamaha Motor Corp., USA, et al., C.A. No. 4:08-285 Central District of California Larry Anderson v. Yamaha Motor Corp., USA, et al., C.A. No. 2:08-6312 Julie Wright v. Yamaha Motor Corp., USA, et al., C.A. No. 2:08-6438 District of Colorado Alejandro Sosa v. Yamaha Motor Corp., USA, et al., C.A. No. 1:07-2721 *1380 Southern District of Florida Evan R. Acevedo, et al. v. Yamaha Motor Corp., USA, C.A. No. 0:08-61602 Northern District of Georgia Brian Q. Giannoni v. Yamaha Motor Corp., USA, et al., C.A. No. 4:09-6 Eastern District of Kentucky Clark Watterson, et al. v. Yamaha Motor Corp., USA, et al., C.A. No. 5:08-329 Donna L. Adorno, etc. v. Yamaha Motor Corp., USA, et al., C.A. No. 6:08-205 Anthony C. Ritchie v. Yamaha Motor Corp., USA, et al., C.A. No. 6:08-285 Kristy Holliday, et al. v. Yamaha Motor Co., Ltd., et al., C.A. No. 7:08-107 Jennifer Ousley v. Yamaha Motor Co., Ltd., et al., C.A. No. 7:08-143 Eastern District of Louisiana Chastity Gerald, et al. v. Yamaha Motor Corp., USA, et al., C.A. No. 2:08-1660 Western District of Louisiana Anthony Chamblee v. Yamaha Motor Co., Ltd., et al., C.A. No. 5:08-1351 District of Maryland Karl Hartig v. Yamaha Motor Corp., USA, et al., C.A. No. 1:08-858 William E. Berry, Jr., et al. v. Yamaha Motor Manufacturing Corp. of America, et al., C.A. No. 1:08-2938 Western District of Michigan Jeremy Tohtz v. Yamaha Motor Corp., USA, et al., C.A. No. 1:07-992 Northern District of Mississippi Bettina Lynn Tucker, et al. v. Yamaha Motor Corp., USA, et al., C.A. No. 3:07-143 Southern District of Mississippi Andrew J. Holley v. Yamaha Motor Corp., USA, et al., C.A. No. 1:08-223 Danny Ray Roberts, et al. v. Yamaha Motor Corp., USA, et al., C.A. No. 3:08-544 Eastern District of Missouri Dixie Farris, et al. v. Yamaha Corp. of America, et al., C.A. No. 1:08-135 William Gannon, etc. v. Yamaha Motor Corp., USA, et al., C.A. No. 4:07-1845 Western District of Missouri Zachary Murray v. Yamaha Motor Corp., USA, et al., C.A. No. 4:07-785 District of Montana James H. Shaw, et al. v. Yamaha Motor Corp., USA, et al., C.A. No. 9:08-102 District of Nebraska Edwin Hartley, et al. v. Yamaha Motor Corp., USA, et al., C.A. No. 8:08-183 District of Nevada Lela Whitlock, etc. v. Yamaha Motor Corp., USA, et al., C.A. No. 2:07-632 Joseph Monaco v. Yamaha Motor Corp., USA, et al., C.A, No. 2:08-675 Southern District of New York Bruce Kehr, et al. v. Yamaha Motor Corp., USA, et al., C.A. No. 1:08-7379 Northern District of Ohio Christopher Smith v. Yamaha Motor Corp., USA, et al., C.A. No. 3:08-1863 Angelo M. Zolna, et al. v. Yamaha Motor Co., Ltd., et al., C.A. No. 4:08-882 Eastern District of Oklahoma Bobby Williams v. Yamaha Motor Co., Ltd., et al., C.A. No. 6:08-392 *1381 Roger Ayers, et al. v. Yamaha Motor Corp., USA, et al., C.A. No. 4:07-434 Eastern District of Pennsylvania Ryan Emery v. Yamaha Motor Corp., USA, et al., C.A. No. 2:08-3153 District of South Carolina Kenneth Daugherty v. Yamaha Motor Corp., USA, et al., C.A. No. 8:08-3130 Eastern District of Tennessee Yoe Lopez, Jr. v. Yamaha Motor Corp., USA, et al., C.A. No. 3:08-244 Middle District of Tennessee Darla O'Neal, etc. v. Yamaha Motor Corp., USA, et al., C.A. No. 2:08-63 Edwin R. Rutherford v. Yamaha Motor Corp., USA, et al., C.A. No. 3:07-1259 Michael Wilhite, et al. v. Yamaha Motor Corp., USA, et al., C.A. No. 3:08-622 Greg Mitchell, et al. v. Yamaha Motor Co., Ltd., et al., C.A. No. 3:08-1077 Western District of Tennessee Grant Pesgrove, et al. v. Yamaha Motor Corp., USA, et al., C.A. No. 2:07-2727 Eastern District of Texas Christopher McKee, et al. v. Yamaha Motor Corp., USA, et al., C.A. No. 1:08-227 Ryan Rogers, et al. v. Yamaha Motor Corp., USA, et al., C.A. No. 2:08-219 Billy J. Akins v. Yamaha Motor Co., Ltd., et al., C.A. No. 5:08-62 Levi McDermott v. Yamaha Motor Co., Ltd., et al., C.A. No. 5:08-148 Sandra Dougan, et al. v. Yamaha Motor Corp., USA, et al., C.A. No. 5:08-154 Southern District of Texas Virginia Curtis v. Yamaha Motor Corp., USA, et al., C.A. No. 4:08-1998 Eastern District of Washington Sally Ann Osburn v. Yamaha Motor Corp., USA, et al., C.A. No. 2:07-5052 Western District of Washington David William Bednarik v. Yamaha Motor Corp., USA, et al., C.A. No. 3:07-5651

SCHEDULE B

Northern District of Alabama Paul Clark, et al. v. Yamaha Motor Co., Ltd., et al., C.A. No. 5:07-1200 Northern District of Texas Tony White v. Yamaha Motor Corp., USA, et al., C.A. No. 2:08-66

NOTES

[*] Judge Hansen did not participate in the disposition of this matter.

[1] Two additional actions were pending, one in the Southern District of Alabama and one in the Eastern District of Louisiana, but those actions have been remanded to state court and dismissed without prejudice, respectively.

The Panel has been notified that eight additional related actions have been filed as follows: two actions each in the Central District of California and the Eastern District of Texas; and one action each in the Northern District of Alabama, the District of Arizona, the Southern District of New York, and the Eastern District of Tennessee. These actions will be treated as potential tag-along actions. See Rules 7.4 and 7.5, R.P.J.P.M.L., 199 F.R.D. 425, 435-36 (2001).

[2] For a discussion of related state and federal cases, see Manual for Complex Litigation, Fourth, § 20.3 (2004).