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III. CASB SPBCIFIC INFORMATION
1. The specific implant products ueed in Plaintiff's
medical treatment, including the name of the manufacturers, brand
numbers, lot numbers and catalogue numbers, to the best of
Plaintiff's knowledge, were:
a. Surgitek Double Lumen, 680 cc., No. 1170600,
(hereinafter referred to as the "Implants").
2. For each procedure in which an implant was either
inserted or removed, the date of Plaintiff's surgery, the name and
address of Plaintiff's surgeon, and the name and address of the
hospital/clinic where Plaintiff's surgery was performed, to the
extent reasonably known to Plaintiff, is as follows:
a. The Implants were inserted on April 29, 1991,
by Leo D. Farrell, H.D., 890 Poplar Church Road, Camp lIill, PA
17011, of Leo D. Farrell, H.D., Plastic and Reconstructive Surgery,
P.C., 890 Poplar Church Road, camp Hill, PA 17011, at Holy spirit
Hospital, 503 N. 21st Street, camp Hill, PA 17011-2288.
3. At all times pertinent hereto, defendant, Leo D.
Farrell, H.D., Plastic and Reconstructive Surgery, P.C., acted by
and through its agents, servants, workers, and/or employees, allting
then and there in the course and scope of their duties to aid
Plaintiff, including but not limited to Leo D. Farrell, H.D.
3
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4. At all tlmcs pertincnt hereto, dcfendant, /loly
spi I" i t /lospi tal, actcd by and through its agents, servants,
workcl's, and/or cmpI oyccs, act! ng thcn and there in the course and
scopc of their dutios to aid Plaintiff, including but not limited
to Leo D. Farrell, M.D.
IV. INJURIBS
1 .
X
Yes
No
/lave the Implants been removed
or ruptured?
2.
II
Ye.
NO
Is the Plaintiff raising olaims
for damages from a disabling
disease (as defined in
Paragraph No. 3 of Case
Management Order No.7) caused
by the use of a silicone breast
implant?
3. The disabling diseasos from which Plnintiff suffers
(as defined in Paragraph No.3 of Coso Management Order No.7),
inolude, but are not 11 mi ted to I (n) Mil<ed connecti ve tissue-like
disease, (b) Inf1nmmntory musc}e-I ike disease, (c) Myalgills-11ke
disease, (d) Chronic fntlquel (e) Bleep disturbnnces, (f)
Dizzlnoss, (g) Niqht swents, (h) Chronic inflammatory response, (i)
Ureast infections, (1) Disfigurementl (k) Impairment of thc immune
systeml (I) Complex surgical procedunls, (m) Scar tiBBue
capsulationl (n) Auto-immuno (lisellso, (D) Auto-immunc-liko disell66,
(p) Memory lOllS' (I)) cramping, till!JllIllJ and/or Imrnillgsl (1") LOlli
of cOlllJontratlon and locus, (ll) Ifumfln adjuvant disense, (t)
Anxiety, (u) Loss of Sleep, (v) llopresslol1/ (w) PsychOlogical Ind
4
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3. The Cooper Companies, Inc.
4. Cooper surgical, Inc.
5. Oow corning corporation
6. Dow Corning Wright
7. Natural Y Surgical Specialties, Ino.
B. Scotfoam corporation
9. Scott Paper company
10. 21 International lIoldings, Inc.
f /k/a Knoll International 1I0ldings,
Inc. (f/k/a Foamex Products, Inc.
f/k/a Scot foam Corporation
f/k/a General Felt Industries, Inc.
f/k/a Eddy Acquisitions now
operating under the fictitious name
of Foamex, a Division of KIIII
U. John/Jane Doe
12. Leo D. Farrell, M.D.
13. Leo D. Farrell , M.D., Plastic
and Reconstructive surgery, P.C.
14. lIo1y spirit lIospital
X
Yes
Count XIX -
violation of state Unfair Trade
Practices and Consumer
Protection Law Against
Defendant Manufacturers
No
VI. CLAIMS AGAINST RELATED COMPANIES
As to those manufacturers, distributors, component parts
suppliers and related companies that Plaintiffs have named as
defendants, Plaintiffs hereby incorporate by reference any and all
claims for successor liability and alter ego liability that are
6
lAW OFflCI6
6HIlLIR, LUOWIO & BADlY
raised in the Fourth Amended Master complaint, and any amendments
thereto, as if fully set forth herein.
WlIERBFORB, Plaintiffs, SHARON MORCH and MICHABI. B. MORCII,
seek recovery from defendants as followsl
(a) general and compensatory damagon In an amount in
excess of $50,000.00, exclusivo of interest and costul
(h) puni ti ve damages as allowed by law,
(e) costs of this litigation, and
(d) such other and further damages and relief as this
Court may deem appropriate.
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Dated: It,,, I
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. If 1I \ I{ { ,~ll:-.J/
Jllmle L. Sheller, Esquire
John P. Ropesky, Esquire
SHELLER, LUDWIG' BADEY
Thlrd Floor
1528 Walnut street
Philadelphia, PA 19102
(215) 790-7300
Attorneys for Plaintiffs
Sharon Morch and
Michael B. Horch
7
lAW omell
BIUIIIA.IIJlJWIO & PAUlY
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II. DlrlNDAHT HIALTH CARl PROVIDIR8
1.- 2. Admitted that Plaintiffs have so alleged. By way of further
response, Answering Oefendants aver that Defendant, LEO D. FARRELL, M.O.,
PLASTIC AND REeONSTRUeTIVE SURGERY, P.C., 890 Poplar Church Road, camp
Hill, PA 17011 was not in existence at the time of the alleged surgery on
April 29, 1991. To the contrary, on April 29, 1991, Oefendant, Or.
Farrell was associated with HARDING, HERCEG, LEBER ASSOCIATES.
3. Admitted that Plaintiffs have so alleged.
III. CASI SPECIFIC INFORMATION
1. Answering Defendants are without personal knowledge concerning
the specific implant products used in Plaintiff's medical treatment
inClUding, but not limited to, the identify of the manufacturers, brand
numbers, lot numbers and catalog numbers except to the extent this
information is set forth in the medical records; therefore, these
allegations are denied and strict proof is demanded.
2. The allegations concerning the insertion of the implants are
admitted based upon information contained in the medical records.
:I. The allegations of agency and employment directed against
Defendant LEO D. FARRELL, M.D., PLASTIC AND RECONSTRUCTIVE SURGERY, P.C.
are denied and strict proof thereof is demanded for the reason that
Defendant, LEO D. FARRELL, M. D., I'I,ASTIC AND RECONSTRUCTIVE SURGERY,
P.C., was not in existence at the time of the alleged surgery on April
29, 1991. To the contrary, on April 29, 1991, Defendant, Dr. Farrell was
- 2 -
associated with "ARDING, HERCEG, LEBER ASSOCIATES. By way of further
response, said allegations of agency are not specific enough to allow
Answering Oefendants to form a belief as to the truth thsreof.
4. The allegations of this paragraph are not directed to Answering
Oefendants and therefore no responsive pleading is required.
IV. INJURIES
1. After reasonable investigation, Answering Defendants are without
sufficient information to form a belief as to the truth of the
allegations regarding the removal/rupture of the implants and therefore,
these claims are denied and strict proof is demanded.
2. - 3. After reasonable investigation, Answering Defendants are
without sufficient information to form a belief as to the truth of the
averments concerning Plaintiff's alleged injuries I therefore, same are
denied and strict proof is demanded. Answering Defendants deny that any
act or omission on their part or on the part of its agents, servants or
employees caused or contributed to the injuries allegedly sustained by
Plaintiff.
V. CAUSES OF ACTION
Count I - Not directed to Answering Defendante.
eount III - Not directed to Answering Defendants.
Count IV - Not directed to Answering Defendants.
Count V - Not directed to Answering Defendants.
- 3 -
Count VIII - Oenied. All allegations of negligence, oarelessnees
and causation are denied and strict proof is demanded at the time of
trial.
Count IX - Denied. All allegations of fraud, deceit and/or
misrepresentation are denied and strict proof is demanded at the time of
trial. It is further denied that Anewering Defendants made any
fraudulent or misleading statements, or otherwise engaged in fraudulent
or deceitful behavior, in any manner whatsoever, as alleged and strict
proof is demanded. It is further asserted that the allegations contained
herein are in violation of the coordinating Court's Memorandum and Order
dated September 7, 1993, Paragraph 9, in that Plaintiff has failed to set
forth specific facts which support a claim for fraud, deceit and
misrepresentation in response to the health care providers "standard
Interrogatory 4."
Count X - Denied. All allegations regarding lack of informed
consent are denied and strict proof is demanded.
Count XII - Denied. After reasonabl e Investigation, Answering
Defendants are without sufficient information to form a beliet as to the
truth of the averments concerning Plaintiff's alleged injuries,
therefore, same are denied and strict proof is demanded at the time of
trial. Answering Defendants deny that any act or omission on their part
caused or contributed to the injuries allegedly sustained by plaintiff.
- 4 -
Count XIII - Denied. After reaeonable investigation, Answering
Oefendants are without sufficient information to form a belief as to the
truth of the averments concerning Plaintiff's alleged injuriee;
therefore, same are denied and strict proof is demanded at the time of
trial. Answering Oefendants deny all allegations of willful, wanton,
outrageous or reckless conduct and strict proof thereof is demanded.
Count XIX - Not directed to Answering Defendants.
VI. CLAIMS AGAINST RELATEO COMPANIES
Not directed to Answering Defendants.
WHEREFORE, Answering Defendants demand judgment in their favor and
against the Plaintiffs together with costs of this action and reasonable
attorney's fees.
NEW HATTER
1. Recovery of medical expenses paid by any third party, including
an insurance carrier, is barred pursuant to Section 602 of the Hsalth
Care Services Malpractice Act of 1975, as amended (Act of October 15,
1975, P.L. 390, No. 111 (40 P.S. Section 1301.602)).
2. Plaintiffs' Complaint does not alleges sufficient facts to
support a claim for punitive damages. Plaintiffs' complaint, to the
extent that it seeks punitive damages, violates Defendants' rights to
procedural due process under the Fourteenth Amendment of the United
states eonstitution and the constitution of the Commonwealth of
pennsylvania, and therefore fails to state a cause of action upon which
- 5 -
punitive damagss oan be awarded. Plaintiffs' Complaint, to the sxtent
that it seeks punitive damages, violates the Oefendants' rights to
protection from "excessive fines" as provided in the Eighth Amsndment of
the United states Constitution and Article I, section 13 of the
Constitution of the Commonwealth of Pennsylvania, and violates
Oefendants' rights to procedural and substantive due process as provided
in the Fifth and Fourteenth Amendments of the united states Constitution
and the Constitution of the eommonwealth of Pennsylvania, and therefore
fails to state a cause of action supporting the punitive damages claimed.
3. Plaintiffs have failed to state a cause of action upon which
relief can be granted.
4. Nothing done or omitted to be done by Answering Defendants or
their agents, servants or employees was the proximate cause of any harm
to Plaintiffs.
5. Plaintiffs' injuries, or some of them, were not proximately
caused by implantation of the breast implants and/or their removal.
6. Plaintiffs' injuries may have been caused by third persons or
parties over whom Answering Defendante exercieed no control nor right of
control.
7. Answering Defendants incorporate by reference those affirmative
defenses set forth in Caee Management Order No. B.
B. If Plaintiffs have in the past or do in the future, settle some
or all of their claims with third parties, the terms and provisions of
- 6 -
the r.l.... or ..id claim. i. . b.r to thi. .ction again.t Answering
Defendants.
9. Plaintiffs' claims are b.rred by the applicable statute of
Um! tatione.
WHEREFORE, Answsring Defendants demand judgment in their favor and
against the plaintiffs together with costs of this action and reasonable
attorney's fees.
PRELIMINARY OBJECTIONS
I. AGENCY
PlaintiffS' complaint fai Is to set forth with specificity those
individuals alleged to be the agents, servants or employees of Answering
Defsndant, I,EO D. FARRELL, M.D., PLASTIC AND RECONSTRUCTIVE SURGERY, p.e.
By way of further response, Answering Defendant, LEO D. FARRELL, H.D.,
PLASTIC AND RECONSTRUCTIVE BUHGEHY, P.C., was not in existence at the
time of the allegeu surgery on April 29, 1991. To the contrary, on April
29, 1991, Defendant, Dr. Farrell was associated with HARDING, HERCEG,
LEBER ASSOCIATES.
11 . lJiJj1BUa
Plaintiffs' complaint fails to specifY which disabling diseases, as
defined, sharon Horch has, in fact, suffsred, contrary to the intent of
the Coordinating Court's prior Case Management Orders Nos. Seven (7) and
Eight (8).
- 7 -
CASR SPRCIFIC INFORMATION
Ths allegations concerning the insertion and/or removal of
the implants are admitted based upon information contained in the
medical records.
The allegations of agency and employment as contained herein
are denied and strict proof thereof is demanded for the reason
that said allegations are not specific enough to allow answering
Defendant to form II. belief as to the truth thereof. It is
specifically denied that co-Defendant, Dr. Farrell acted as the
agent, servant or employee of answering Defendant and to the
contrary, it is averred that Dr. Farrell acted as an independent
contractor and made independent medical judgments in the care and
treatment of the Plaintiff Sharon Morch.
Answering Defendant is without sufficient information to
form II. belief as to the truth of the allegations regarding the
removal/rupture of the implants and the claims regarding
disabling diseases I therefore, thene claims are denied and strict
proof is demanded.
After reasonable investigation, answering Defendant is
without sufficient information to form II. belief as to the truth
of the Health care Servloe. Malpraotlce Act of 1~75, a. amended
(Act of October 15, 1975, P.L, 390, No. 111 (40 P,S. Section
1301. 602) ) .
2. Plaintiffs' Complaint doe I not alleQe lufficlent facti
to support a claim for punitive damagel. Plaintiffl' Complaint,
to the extent that it seeks punitive damages, violates
Defendant's rights to procedural due process undet" the Fourteenth
Amendment of the United States Constitution and the Constitution
of the Commonwealth of Pennsylvania, and therefore fails to state
a cause of action upon which punitive damages can be awarded.
Plaintiffs' Complaint, to the extant that it naeks punitive
damages, violates the Defendant's right t.o pl"otection from
"excessive fines" as provided in the Eiyhth Amendment of the
United States Constitution and Article 1, Section 13 of the
Constitution of the Commonwealth of Pennsylvania, and violates
Defendant's rights to procedural and sub8tantlve due process as
provided in the Fifth and Fourteenth Amendment.s of the United
States Constitution and the ConstJt.utlon of the Commonwealth of
Pennsylvania, and therefore falls to etate a cause of action
supporting the punitive damagus chimed,
3. Plaintiffs have failed to IItate a cause of .ctlon upon
which relief can be granted.
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~ McGhan Medical CotpOlaban vie. T~p.
B cia l. Richard Rawls, EsqUire tiled :: In.urod
~ Pelrnien Tyler Wiener, el al .d C COD
2605 Main Street, Surte 1300 Mill IJ Roturn R.c.lpt '.r
5! l/Vine, CA 92714,6228 Mil h n I
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t. U Add......'. Add....
2, IJ R..trlct.d D.llvIIY
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Ind lee II 1l81dl
DOMESTIC RETURN RECEIPT
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I ' c omptet. ~.mt t indIa, 1 10' Hdlhonal "'...IC,'
" Comp"" It,,,,, 3, end C, & b
, Prmt YDUI name Ilhd Idd,... on tM ,.....,.. ot Iht, lonn 10 thlt w. un
filum tht, c.,d to you
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do.. not pefmlt.
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2. <-J Resulcled Delivery
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Natural Y Surgical Speclalbes
cia John l. McGoldrtck, Esquire
McCarter & English
4 Galeway Center, 100 Mulberry SI
Newark, NJ 07102,4096 '
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DOMESTIC RETURN RECEIPT
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, Pnnt your n,me Ind tddr... 011 lhe II....'". of th, tonn to lhl' .. t.n
rerum Uit tlld to you. . .
. AnKh thiI farm 10 IhI front of lh. matlPK'. Of on the beck ., ~C.
doe. not penntL
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ti , n. Aatum "-*PI will .how 10 whom tt. IIttdl .... dIhered..... ttw d.tl
g dt11Ytl'1'd
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Scoll Paper
Scali Plaza
m Industnal Highway & Tinicum Road
~ Philadelphia, PA 19113
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I also wlIh to receivI the
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2, Ll f\Hlricted DIlIVIfY
Consult ,unlit" 'or 'H.
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7. Date 01 Oe~elY
____7 -i~,fcf::_____
8. Add,;,(see's Addleu (On1v ,lreQuellee
end lee il paldl
ru ZZ 2 05 PH '95
I '1\ I~ OfflOE
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manufscturlng, msrketlng or testing of the DCC Breast Implant Products
or otherwise are IIsble for plaintiff's alleged Injuries.
3. This action may be removed to this Court pursuant to 2B U.S.C. ~
462(s) by reason of the fsct that (II the action is not exempt from
removal, and (II) the Court has jurisdiction over the action under 28
U.S.C. ~ 1334. All claims asserted are related to the DCC Bankruptcy
Cese, and the continued prosecution, outcome at trial or other resolution
of the claims will have sn effect on the administration of the DCC
Bankruptcy Case.
4. This removsl applies to all claims and causes of sctlon ssserted In the
Civil Action and specifically Includes, but without limitation, claims
against The Dow Chemical Company, even though those claims may
presently have been dismissed or otherwise ruled upon In the stste court.
It Is the Intent of this notice that these claims are also removed to
federal court to remain psrt of this same action In the svent that any
prior rulings resolving these claims are vacated or reverssd.
6. The Civil Action is pending within the district and division of this Court.
6. This Notice of Removal Is timely filed under Ruls 9027(s)(2).
7. Upon removal of this action, the proceedings with respect thereto are
non"core. DCC does not consent to entry of a final order or Judgment by
the bankruptcy judgs (to the extsnt that the bankruptcy court Is
authorized to hear or determine such clsims consistent with 28 U,S.C. i 167(b)(611.
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SHARON MORCH and MICIIAEL S.
MORCH, Wife and Ilusband
Plaintiffs
IN TilE COURT OF COMMON PLEAS
CUMBERLAND COUNlY, PENNA
vs.
NO. 94-3383 CIVIL
CIVIL ACnON -lAW
HOLY SPIRIT 1l0SPITAL, ET AI..
Defendants
JURY TRIAL DEMANDED
WlTIillMWAI.. OP APPIlt\M.1Yg
TO THE PROTHONOTARY:
Please withdraw our appearance os counsel for Defendam, Holy Spirit Hospital, in the
above-captioned action.
OODSIDIl, P.C.
By:
Craig . S 1, ~sq
Supreme COLI t
BNTRY OP APPIlAllANCIl
TO mE PROTHONOTARY:
Plea~c enter oUt appearance as cuunsel fur Defcl1d~nt, Holy Spirit Hospital, in the above,
captioned action,
POST iii SCHELL, P.C.
By: cE:~
Eii/"" ULAcfAItIHlIlI V. 1\91l1HnO'llle~1 Esqulrl!
Supreme Court LD. # t 1 rrl(
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Discont inue Action agains t Nedical EI1<Ji neering Corpol-at ion as to
Settled Cases,
it appearing that NEC has advised this COUl't that service has
been made by the manufacturing defendants, pursuant to Pa.R.C.P.
No. 440, on every party that may be affected by this ordel' of court
with a notice advising the party to f i1 e legal papers set t ing forth
any opposition to the Petition for Leave to DiGcontinue Action as
to the lawsuits described in this court order,
it appearing that plaintiffs' Steering conunittee Counsel does
not oppose the entry of a court order dismissing with prejudice MEC
as a defendant or an addit ional defendant (l) in any pending
Pennsylvania state court lawsuits of any plaintiffs who did not opt
out of the federal settlement and (2) in any pending state court
lawsuits of any plaintiffs who opted out of the federal settlement
but subsequently settled their claims with NEC, and
it appearing that my office has not received legal papers from
any party opposing the entry of a court order dismissing with
prejudice all cluims raised by any party against NEe,
it is ORDERED that:
1. All claims and crossclaims raised by any party against MEe
are dismissed with prejudice in any lawsuits described in this
court order.
2. The remaining co-defendants will be entitled to offer
evidence at trial of the settled defendant's liability in
a~cordance with the June 11, 1998 Order of the Coordinating Court
and will be entitled to a l'eduction of any jUdgment entered against
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U.S. Oiotrict Court
tJSDC for the Northern Diotrict of Alabama (Southern)
'I'ERMED REMAND
CIVIL DOCKET FOR CASE Ul 95-CV-13602
Morch v, Dow COl"/ling
Assigned tOI Chief Judge Sam C Pointer, Jt'
Demand I $0,000
!,ead Docket: None
Dkt II in PI\M : iR 1195--01280
Dkt U in MDL : io 926
Filed I 10/10/95
Nature of Suit I 365
Juriedictionl Diversity
Cauoel 28:1332 Diversity-Product Liability
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Page 1
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Ll~ITEI> STATES DISTRICT couln
NORTHERN DlSTIUCT OF ALAUAMA
Southern 1>1\'1~1()1I
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In re: SILICONE GEL nREAST
IMPLANT PRODUCTS L1AIlII.ITY
LITIGATION (MDI..926)
Master File C\' n,I'-IO()(lQ-S. i. .'" I ':~'aT j
h.D. u; "'-"Ji~I'1f',.J
(Applie~ 10 \:ases lisle~' ~1 ,~I.ldl@:'X I Ii.
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OIUlEn No. 39A U - l( ') - I - ( 3 ""O( ...s
lItemundhlll tlsled Cllses III Slute COllrO ocr 1 I, 1991
l'unuallllO Ordcr No, 39. and afier considering Ihe responses of Ihe panics Ins discussed in Opinion
No. JI/A flied concurrcmly hercwilh), il IS OIlI>EIlED as lollows:
I, l11c cases liMed IIIlhe appendis 10 Ihis mder will he remanded Illlhc indicaled slale courts u(lOll
dockeling and emr)' of orders previously signcd in such cases and subject wlhc lenns and condlllOl15 of
Ihls order.
2, The lenllS and condilions under which such remands arc effecled are as ",11011'5:
(a) All claims against 01111' Corning COl11, and Doll' Corning Wrighllincluding any crossclalms
or Ihird-party claims hI' defendams agalnsll>ow Corning Corp, or Doll' Corning Wrighl) are, 10 the
exlelll not previously dismissed, severed and nOI remanded, Such claims are. however,
admlnlmatlvely closed in this court and dismissed wllhoul prejudice 10 thc institullon and pursuit of
such claims in Ihe United Slales Dislrict and nankruplcy Courts for Ihe Eastern DistriCt of Michigan
In accordance with procedurcs established In Ihllse courts, 1111s cOUrl retains Jurisdiction to vacate
such dismissals and reopen such claims against Doll' Corning on wrillen mOl ion If filed wllhin 30 days
after reorganization pmceedings of Doll' Corning ale dismissed or wllhin 30 days aftcr Ihe EUlem
Dlslricl of Michigan delermines Ihal reopening of such cases against Dow Corning is Ihc procedure
10 he followed Inli4uidaling such claims,
Ib) All claims hy any part)' agaimlllle Dow Chemical Company, Inc, and Doll' Holdings Inc.
are, to Ihe eslelllntll ptcviously dismissed or Iralt\ferred. severed and lramferred 10 Ihe Unitcd StaleS
Dlslrict COUll for lhe Eastern Disrticlof Michigan, which will delennine whelher an)' of such claims
should he remanded lor allowed 10 proceed in Slalc courl as a conse4uenee of federal court
abilenllon) ,
(c) As csplained in Order No. JO and Older No, 30G. all claims againsl Ihe rollowing
companies havc heen dism!lsed wilh prejudice: IIl0plasly. Ine,: IIlo,Manufaeturing, Inc,; Cahot
Medical Corporalion: Cotlllng. Ine: Foames Pmduets, Inc,; Gencral Felt Industries, Inc.: Knoll
IlIIcrnalional Holdings. Ine: Ileclicel Foam Corporalion: Scolfoam Corporal ion: Seoll Paper
Company; Surgilck, In[,: '21' InlernalionalHoldings, Ine: '21' Foam Company. Inc,: und IJroplaslY.
Inc
hll ^ny claims IIgainsl Menlo, Corporation: Melllol PolYlller Tccllllologles. Ine,: Menlor 0&0,
Inc,: MenloI' illS, Ine: MenloI' llrolo8Y, Ine,; Melllor Inlernalional.lnc,; and Teknar Corp. relallng
10 hreast implanls IlIIplanled befole Junc I. 11J9J, ate dismissed wilh prejudice,
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(c) All claims ag~'IIM Gcncral Elcclflc Company ha\'c hccn ulsmisscd with prejudice pursuant
10 Order No, 3B, The pluimilTs inlhc IiMcd rcmandcd cascs ha\'c. by nOl rcsponding 10 lhe show
caUse dircClioJlS contained in Ordcr Nil 31). disavowed an~' panidpalion in any appeal with respect
to Order No, 3B,
(I) Any claims ngainsl Union Carbide Corponllion hased on its 1991l-1992 ownership of
McGhan NuSiI Corporalilln rcmanded 10 lhc indicated stale couns. but may be pursued In slale coun
only upon demOllSlrallonlhntlhe plail1liffs. if eligible, tllnely opted out of Ihe original Global
Sel1lemem or Ihe Re\'lsed Senlemem Program provided by thai defendant. All other claims against
Union Carbide Corpuration. as weil as ail claims against Union Carbide Chemicals and Plastics
Company, Inc.. have been dismissed with prejudice pursualllto Order No, 37. and the plall1liffs In
Ihe lIS1ed remanded cases have. by not responding to the show cause dlreclions comalned In Order
No. 39, disavowed any pnnicipation in any appealwilh respeclto Order No, 37,
(g) All claims againstllrislOl-Myers Squibb Co" Medical Engineering Curp, , Baxter Healthcarc
Corp" lIaxter Imernationallnc" and Minnesota Mining and Manufacturing Co, ("3M"). and their
subsidiaries arc remanded to thc indicaled stale couns, bUlmilY be pursued in state coun only upon
demonstralionthatthe plaillliffs. If eligible. timely opted oUlof Ihe original Global Senlement or the
Revised Sel1lemelll Program I "IlSP") provided by those defendallls. Tbis coun expects plalllliffs to
l1Ie In state coun. alier rcmand, I'olumary dismissals of claims againsl senling defendants that arc
precluded by Ihe RSP and wiil relam jurislliclion 10 enforce by injunclive decree. if necesslll}'.
restrictions against pursuit of such claims,
NOTE: THOSE CASES MARKED \VITII AN ASTERISK (0) MERIT SPECIAL ATTENTION
AS TO DEMONSTRATION OF OPTOUT, A SEARCH BY DEFENDANTS INDICATES
THAT ONE Oil MOllE OF THE IMPLANT-PLAINTIFFS IN THESE CASES MAY NOT
HA VE OPTED OUT,
(h) All claims againsllnamed Corp,. and McGhan Medical Corp, are remanded to the Indicated
state cOUrlS. butll1ay be pursued in stale court oniy if Ihose defendal1ls defaull in payment of their
obligations under the Revised Scnlemellll'rugram or upun demonSlralionthatthe plaintiffs, if eligible.
timely opted oUI of the original G10hal Selllemel1l or the Revised Selllement Program provided by
those defendalllS,
(I) All claims againsllllher defendal1ls nOl described In paragraphs I(a) through \(h) ahove are
remanded 10 the indicated state couns,
0) Funher proceedings in stale couns will be govented. in general and 10 the extelll applicable.
hy Ihe orders previously entered in MDL 1)26 nnd Master File No, CV 92-P-100ll0-S,
(I) Tu the extcllI notmconsistenl with state law, the provisions of Order No. 30. Order
No_ 30F. and Order No, 300 willllpply to such further proceedings. excepl thai paragraph B uf
thai Order No, 30 nnd Order No, 13, imposing an assess me III on recoveries for "common benelit'
services and expenses, will not apply 10 recoveries by plaillllffs who exercised Ihelr inhlal right
to opt OUt of Ihe Lil/dH'\' class and whose slale-court case was rell10ved III federal cOUrt solely
under the "related 10 hankruplc)''' jllrisdlction,
(2) The dcpnsilion lc:.tiJllonj' IIf Ihe members of Ihe Nationai Science Panel, appuinted
under Orders No 3 I and 3 I D, will. whenlaken, bc admissible and usable inlhe Slate cuurts to
the ~ame extem as if ta~en before remand Ill' Ihe case III the Slate collrt.
2
CW,., 9414 PAE 2,95'06533 92.m~ COHM,PL.CT. PMILAOELPHIA CO. IA-. f R I EOBIRG
eW5019416 PAE 2,95'06535 92,053, COHM,PL,CT. PHILAOELPIIIA CO, " SHINk
CV9,., 9417' PAE 2,95'06536 91.1591 eOHM,PL ,CI, PHILADELPHIA CD. PA DE SOUSA
ew,., 941 B PAE 2,95'06537 92,0717 COHM.PL.CT , PHILAOELPIIIA co, PA CAMPOEll'OLAIR
CW,., 94 20 PAE 2,95'06540 92'374B COHM,PL ,CI, PIIIlADHPIIIA CO. ..PA KITCHIN
eV96.12292 PAE 2,95,04B20 92' 1614 COHM.PL ,CT, PHILADELPHIA CO. PA ROSSINI
CW6- 12293 PAE 2:95'04820 92,3919 COHM.PL.CI. PHIlADHPIIIA CO, PA ~ILLARD
CW6. 12294 PAE 2,95'04679 91.1371 COHM,PL ,CI, PHILAOHPIUA CO. PA SIEMOn
eV96'124 77 PAE 2,95'06207 93,018B COHM.N.C!. PHILADELPHIA co, PA GIOIOSO
CV97.10026 PAE 2,95'06121 94'0663 COHH,Pl ,CT, PHILADELPHIA co. PA DONSkY
CW5.19327' PAE 2,95'05076 94.3219 COHM.PL.CT. PHILADELPHIS co. PA CUSMANO'IROILO
CV95.11056 PAH 1,95'01136 91.3089 COHH.PI,CI. CUHBERLAND co. PA BElLAVIA
CV9,., 3600 PAH ,,95,01277 170'CY'1994 COHH,H.CI, CUMBERLAND co, PA f HHRER
eW,.,3601 PAH 1,95'01278 91.14ze COHH.PL.CT. CUMBERLAND co. PA KRAMER
CW5-13602 PAH 1,95'01280 94'3381 COHH.PL.CT. CUMBERLAND co, PA HORCH
CW,.,3603 PAN ,,95,01281 94,6564 COHM.PL.CT. CUMBERLAND co. PA POIIER S
eW5 '13605' PAH 1,95'01285 94.1016 COHH.PI,CT, CUHBERLAND CO. PA ZIMMERNAN
eW6-10644' PAH 1:95'01279 ID17'CIYIl,1992 COHH,Pl.CT. CUHBERLAND CO. PA HCOEE
eW6.10645' PAH 1,95'01282 173.1994 COHH.Pl ,CT. CUHBERLAND co. PA HESE
CW6.10646' PAN 1,95'01281 4106.1991 COHH,PL ,CT, CUHBERLANO co. PA STONE
CW5.1361O' PAH ,,95'01297 1846'5,1991 COHM,PL,CI. DAUPH I N co, PA POIIERS
CW,.,3612 PAH 1:95,01301 1058'5-1992 COHH,PL.CT. DAUPHIN co. PA ZEIDERS
eW6.10647 PAM ,,95,01286 Z11 2 .1992 COHM,PL,CT . DAUPHIN ce, PA CHUBB
eW6.10648 PAH 1,95'01287 1191- 1994 COHM.Pl, CI . DAUPHIN CD. PA OIHARIA'&1ALEY
eW6.10649 PAH 1,95'01290 m8.1991 COHH,PL.CT . DAUPHIN co, PA GINlER
CW6.10650 PAN 1,95,01291 705' 1994 COHH.PL.CT. DAUPHIN co, PA HARkLEROAD
eW6.10651 PAH 1,95'01292 3996,1992 COHM,PL.CT , DAUPHIN CO. PA 1I0FFMAN
CW6.10652 PAH 1,95'01293 681.1992 COHM,PL,CT . DAUPIIIN co, PA ISEN8ERO
CW6- 10653 PAH 1:95'01294 175'1~94 COHH.Pl, CT, OAUPIIIN co, PA KAYlOR
CW6.10654 PAH ,,95,01298 1190.1994 COHM,Pl,CT , DAUPHIN CO. PA PRINGLE
eW6'10655 PAH 1,95'01100 1499- 1992 COHH,PL,CT . OAUPH I N CO, PA S~AR1Z
CW6'10656 PAH 1,95,01301 4924.1993 COHH,PL.CT. DAUPHIN co. PA I/OLF
CW6-10657 PAH 1,95'01302 1292-1994 COHM,PL.CT. DAUPHIN CO. PA YOUNG
CV95-13630 PAM 3,95-01305 95-1305 eOHH.pL.CT. LUZERNE co. PA HOLOERHAN
CV95 .13608 PAN ,,95'01295 315'S.1994 COHM,PL.CI, YORK CO, PA LANOIS
CV95-13613' PAH 1195.01306 94'SU'5326'01 COHM.PL.CI. YORK CO, PA BALDWIN
CV95-13622' PAH ,,95,01317 94'SU-4299.01 COHN.PL.CI. YORK CD. PA KUHN
eV96- 10658 PAN 1,95.01307 93-5316'0T COHM, PL. e T. YORK co. PA CADEk
CV96'10659 PAN 1195'01310 92.5402.01 COHH,PL.CI. YORK CO. PA DICK
CV95-12020 sc 0,95'02495 94'CP.04.1017 COHM.PL.CT. ANDERSON CO, SC CROHER
CV95.1Z021 SC 8.95,02500 94'CP'04.1058 COHM,PL.CT. ANOERSON CO. SC mOUE
CV95-12022 SC 8,95'02502 94'CP'04.1056 COHM.PL.CT. ANDERSON CD. SC RHODES
eV95-18023' SC 0,95'03077 92.ep.04,'191 eOHM.pL.CT. ANDERSON co. se SHITH
eW,.,2019 SC 8.95-02492 94'CP,39.100 COHM,PL.CT. PICkENS co. SC OOOR
CW5-13178 IN~ 2,95-02416 62907,210 CIR.CT. SHELBY co. IN IIENRY
CW5-1318D TNW 2.95-02423 94-203 CIR .CT. SHELBY CO. IN SIEWARI
CV96.11754' INW 2,96'02054 95. 8047 CIR.CT. SHELBY co. IN IIUNI
CW6-11755 INW 2,96'02055 95.8044 CIR.CT. SHELOY CO. TN Hill
eW6- I I 756' INW 2,96'02061 95,8007 CIR .CI. SHELBY co. IN ADELMAN
CW6. 11777' INW 2,96'02082 95.802B CIR.Cl. SHELBY co. TN DEAN
CW6-11770' INW 2,96'02083 95' 0029 CIR.CT , SHELBY co, IN DICkSON
CW6-11784 INW 2,96'02089 95,8035 CIR.CI, SIIElBY CO. TN fOllLER
eW6.11788' INW 2,96'02093 95,8039 CIR .CT. SHElBY CO. TN HARR 150N
CW6.11000 TN~ 2:96.02109 95'8054 CIR.CT. SHELOY co. IN MENNE
CV96'11014 TN~ 2:96'02123 95,8060 CIR.CT , SNELBY co. TN SCHOOGEN
CW6-11821 TN~ 2.96,02130 95,0075 CIR .CT. SHELOY co. TN ~ALkER
CW6- I 1022' TNW 2:96'02131 95,8076 CIR.CT. SIIELOY co, IN WHilE
eW6. I 1023' T"~ 2,96'02132 95 ,8077 CIR .CI. EIIELBY CO. TN ~HllEHORN
eW5-10749 TKE 1,95'00305 0.141260 136TII o 1ST , JEFFERSON co. n SHORES
eW5014394 TkE 1:95,00597 0, 147, 322 1361" OIST, JEFFERSON co. n CARONA
CW5-14432 lHE 1,95'00641 0'146,560 1361H 0151. JEFFERSON co. lH LOPEZ
CW5-14359 THE I ,95' 00562 E'I47,4B2 172NO DISI, JEFFERSON co. IH 1I0PION
CW5- 14424 lHE 1,95' 00633 E' 147,459 172NO OIST. JEFFERSON CO. n YAlES
CW,.,4449 IHE 1,95'00659 E' 146, 581 172NOOISl. JEFFERSON CO. lH kURU
CW5.14461 IHE 1,95'00671 ['144,006 172ND OIST. JEFFERSON CO. IH SAllES
CV95,I4471' IHE 1,95' 0068 I E'147,769 172NO 0151, JEFFEAlON co. n IIUCkAOAY
CV95.14420 IHE ,,95'00629 A'147,506 50lH 01Sl. JEFFERSON CO, IH PUGH
CV95 '14444 TME ,,95' 00654 A'IH,531 501HDm, JEffERSON CO. lH YICkERY
CV95.14450 "E 1:95'00660 A,146, \81 \81H OISI. JEF FERSDN CO. Ik DAVIOSON
CV95.14340 IHE ,,95,00543 B'148,219 60lH 0151. JEffERSON CO. lk ~A ISDN
CV95.14499 IHE 1,95'00714 B'l41,86B 60TH OIST, JEffERSON CO, IH BRASHER
CV9H4505 IHE ,,95'00722 B'147,794 601H 0151, JEfFERSON CO. lH PAR I5H
CV95.IOB92 IME <,95'00075 17635 76TH 0151, MORRIS CO, lH ANDERSON
CV95 , 14643' IHN 1,9\,01756 94'0/635 10151 01Sl, DALLAS CO, TH HOR10N
CY95.10569 IHN 3,95,01143 9H214'G II"H 0151. DAllAS CO. lk ALI/OR1H
CY95.11197' "N 1 :95'01 II I 94,I199'A 14111 01Sl. OAllAS CO, TM BAILEY
CV95 ,10\75 "N 1,95'01110 1601H 0151, DALLAS CO, IH BOllEN
CY95 '1lI93 "" 1,95'01088 9J.1HIB'H 160lH OIST. OAll AS CO, 1M ADAMS
~
",.....
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1", .....
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
IN RE SILICONE GEL BREAST . MASTER FILE NO,
IMPLANT PRODUCTS LIABILITY . CV 92-P-10000-S
LITIGATION (MDL-926)
SHARON MORCH
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VS
MEDICAL ENGINEERING
CORPORATION. ET AL
NO 95.P. U602 .8
DEBRA ANN DOYLE
VS,
HOLY SPIRIT HOSPITAL
NO. 9S.P.
.8
MOTION TO JOIN RESPONSE OF CERTAIN NONDEBTOR
HEAL THCARE PROVIDERS TO PLAINTIFF'S MOTION FOR SEVERANCE
OR, IN THE ALTERNATIVE, FOR CONDITIONAL DISMISSAL
WITH PREJUDICE, AND MOTION TO REMAND AND
AaSTAIN FROM NONDEeTOR BREASIJMfJ..Ati1.IJI1.QN
The non debtor Defendent heallhcare prOVider listed in Exhibit A hereto, JOin In
the Motion filed on behalf of cer1ain nondebtor heallhcare providers, attached hereto as
Exhibit B. and Incorporate by raference the Response and Memorandum of Llw
attached herelo
For the reasons Itated therein, the nondabtor he.llheara providers rtlp.elfully
/~
~
.........
Certain nondebtor defendant healthcare providers
thereil\after, defendant healthcare providers), including but not
limited to those defendant healthcare providers listed in Exhibit
B. hereby respond to plaintiffs' motions for severancs of Dow
Corning corporation and Dow Corning Wright corporation, or. in
the alternative, to dismiss with prejudice, and to abstain and
remand those breast implant actions listed by plaintiff in its
February 7, 1997 motions. Defendant healthcare providers oppose
plaintiffs' motions for the reasons set forth below.
,",ovrna PARTIES
1-6. Denied. Responding defendants are without knowledge as
to the spllcifics involved in each and every applicable case. For
inBtance, the responding defendants are without knowledge of the
venue of original filing, the claims and counts, thll named
plaintiffs' reaeons for naming Dow Coring corporation or Dow
Corning Wright Corp, in each and every of the case referred to in
plaintHf's Exhibit ""'..
It is only admitted on information and belief that Dow
Corning Corporation or Dow Corning Wright corporation, In most of
plalntiffl' caBSI, were either the manufacturer of plaintiffs'
braalt implants or a component supplier for the manufacturer of
plaintHfs' implantB.
7. It is admitted that Dow Corning filed a Chapter 11
pttition in the United States Bankruptcy Court for the Eastern
Oi.triat of Michigln.
e. Denied al Btated. It is admitted only that many state
2
t"'\
,"""',
coure actions were removed to federal court. The resP9nding
defendants are without Knowledge as to the removal status in each
of the Individual plaintiffs' caaes.
9-10. It is admitted only thae the entire cases or
causes of action, including the defendant healthcare providers'
claims against Dow corning, were removed to federal court.
11-12. Admitted upon information and belief.
13-14. Denied. Plaintiffs' description of the
Pennsylvania litigation and court orders is denied. Moreover,
there are no matters "pending before the Three Judge Coordinating
Court for the Pennsylvania breast implane litigaeion." because
state breast implant litigation has been subjece to a stay,
implemented on September e, 1995 by the Pennsylvania Coordinating
Court for Silicone Implant Litigation (hereinafter, "Coordinating
Court"). Further, it is denied that monthly status conferences,
motion hearings and discovery conferences have been held during
the period of the stay.
Specifically, defendant healthcare
provider are aware that, as the stay has been in effect since
S~ptember e. 1994. the issue of "whether Dow Corning Corporation
ehould be severed from all Pennsylvania brease Implant cases" is
not currently before the Coordinating Coure. Further, it is
denied that a redetermination of previously granted preliminary
objections which led to the dismissal of Dow corning wright
Corporation is before the Coordinating Court.
15-17. Denied. The defendant healthcare providers have
not been advised of plaintiffs' status in the manufacturer's
3
~
~
revised global settlement.
18-19. Oenilld as stated. It is admitted only that, at
present, the pennsylvania state court litigation is currently
stayed pursuant to an order of the coordinating Court.
20. Denied. The plaintiffs' assertions regarding the
intentions of the cocrdinating Court are denied.
21. It is admitted that the removal of all claims and
cross-claims against the Dow corning corporation and Dow corning
Wright corporation was proper.
22. Denied. Dow conling corporation and DoW corning wrlQht
corporation are indispensable parties to thll causes of action
against the nondebtor defendants because the plaintiffs have
alleged joint and eeveral liability against the defendants.
Also, the defendant healthcare providers have asserted
crossclaims againDt Dow corning corporation, and the defendant
healthcare providers have preserved their rights against Dow
corning corporation in ehe ongoing bankruptcy proceedings.
23-26. Denied. The plaintiffs have as.erted claims
ag~in8t the defendant healthcare providllrs. ba.ed upon the
implantation of breallt implants or breast implant materials
manufactured by Dow corning. The claims against the defendant
healthcare providers are related to thll claims against DoW
Corning corporation becauslI plaintiffs allege that the brealt
implants which were inserted by the defendant hs.lthcars
providers are defllctive and caUSII injUry, The claims and cross-
claims against the debtor are, thlrefore, rllated to the
4
~
bankruptcy case because the defendant healthcare proviqers'
crossclaims must be accounted for in the bankruptcy proceedings.
Further, the Sixth Circuit Court of Appesls cls&rly held that the
federal court has jurisdiction over the plaintiffs' tort claims
against the nondebtor defendants. In re Dow Cornino Corcoration,
86 F.3d 482 (6th Cir. 19961. The removal of the entire cause of
action was appropriate and in accordance with the bankruptcy
rules and Federal Rules of Civil Procedure.
27. Denied. A stay is currently in effect in the
Pennsylvania state court litigation.
28-30.
It is admitted that the Honorable Denise Page Hood
IIntered a memorandum opinion and order on September 12, 1995
regarding the defendants' motions to transfer. That order and
opinion has been reversed by the Sixth Circuit. In re Dow
comino Corcoration, 86 F.3d 482 (6th Cir. 1996). Specifically,
Judge Hood's ruling that the court has no "related to"
jurisdiction has been explicitly reversed. It is also admitted
that Judge Hood entered a memorandum opinion and order regarding
th~ defendants' motion to transfer on July 30, 1996. That order
and opinion are currently on appeal before the Sixth Circuit
Court of Appeals.
31-32. It is admitted only that this Court has issued
orders No. 26 and No. 27 which speak for themselves.
REPLY TO PLAINTIFFS' MOTION TO SEVER
33. Denied. It is specifically denied.that Dow Corning and
Dow Corning Wright should be severed from thll above identifisd
5
~
.
cases. To sever Dow corning and Dow Corning wright at tl,is
juncture, with defendant healthcare providers having outstanding
claims against Dow Corning, would be irreparably prejudicial to
the defendant healthcare providers. Severance would lsave
outstanding issues as to Dow corning, making a complete
reorganization impossible and resolution of defendant health care
provider claims against the debtcr impoasible. This Court has
already acknowledged the impact of outstanding crcssclaims by
requiring that there be no such claims againet Dow Corning before
remand will be considered. (See State Remand order No.1) .
Further, the Sixth Circuit Court of Appeals recognized that these
contribution claims against ~ow corning Corporation are
significant enough to warrant conferring "related to.
jurisdiction to the district court over nondebtor defendants. In
re Dow Comina Coroorstion, 86 F.3d 492 (6th Cir. 1996).
34-37. Denied. It is denied that plaintiffs have stated
valid reasons to sever Dow Corning Corporation or Dow Corning
Wright corporation from these caSBS. It is further denied that
plaintiffs have stated or set forth "just cause" to remand the
Pennsylvania breast implant clses back to statll court at this
point. It is further denied that the plaintiffs' motions are In
compliance with Judge Hood's orders, aa the September 1995 order
has been reversed by the Sixth Circuit Court of Appeals, while
the July 30, 1996 order is currently on appelll before thl Sixth
Circuit Court of Appeals,
&
""
38-42,
g"'LY TO PI..AINTIFPS' ALTERNATIVE MOTIONS
rOR CONDITION DISMISSAL WITH PREJUDICE
Denied. It is denied that Dow Corning Corporation
and Dow Corning Wr.ight corporation can be dismissed from the
lnltlnt Ictions because of substantive crossclaims brought by
dllfendant healthcare providers are currently pending against Dow
Corning. Furthermore, this court hlB previously etated in State
Remand Order No. 1 that claims sgainst Dow corning must be
dismi..ed Ind that there must not be any pending crossclaims
before CIBIII may be remanded to state court.
Plaintiffs request that Dow corning be dismissed "with
prejudice" so that the court can remand the actions. Plaintiffs
are in substance. however, actually asking for a dismissal
'without prejudice" because they request that the diamissal be
without prejudice to the rights of plaintiffs to file proofs of
claim. or otherwise aseert claims against Dow Corning corporation
in the context of the bankruptcy case. Plaintiffs further
nqu..t that the dismissal be "without prejudice" to the rights
of plaintiffs to assert claims against Dow corning corporation in
any and III appropriate forums. These requested stipulations do
not amount to a dismissal "with prejudice." In reality, they fit
thl definition for dismissal without prejudice.
Plaintiff. clearly have not met this Court's requirements
tor remand. They merely attempt to reword their request as
though thay are requesting a ccmplete dismissal of Dow Corning.
tn rellity, the plaintiffs want to reserve all rights to pursue
claims 191inet Dow corning, clellrly not meeting the standard for
7
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r-
UNITED STATES DISTRICT COURT
NORTIIERN DISTRICT OF ALABAMA - SOUTHERN DIVISION
IN REI SILICONE-GEL cREAST
IMPLANT PRODUCTS LIABILITY
LITIGATION (MDL 926)
)
)
)
)
Master File No.
CV_9S-P-10000-S
UNITED STATES DISTRICT COURT
NORTIIERN DISTRICT OF ALABAMA - SOUTHERN DIVISION
MARY ANN ABELLA I
I
v. )
I
COX-UPHOFF INTERNATIONAL, ET AL. I
- )
I
KAREN C. ALBRECH1' I
I
v. )
I
DOW CORNING CORPQRATlON. ET AL. I
)
)
LYNN A. ALDERFER )
)
v. I
I
DQW CORNING CORPORATION, ET AL. )
)
)
MARY ANN BALDWIN )
I
v. I
)
DOW, CORNING CORPORAT:Oll, ET AL. I
)
NO. 95-P-18009-S
NO. 91l-P- -s
NO. 91-1"-1'3'0-8
NO. 9&-1"-1).13-1
HlMORANDOM or LAW IN SUPPORT or TBI RlSPONSI or
DlrlNDANT n:ALTH CA1Ul: PROVtDEU TO PLAINTIFFS'
~OTIOHS TO SIVER OR, FOR CONDITIONAL DISMISSAL WITH PRIJUDICI
t. prmODUCTIllli
On February 7, 1997, certain plaintiffs filed four Motions
for SlveranCII or, in thl Alternative, for Conditional Dismisaal
with Prejudice. and Motiona for Remand and Abatain from Nondllbtor
Bre.llt Implant Llti91tion, with thill Honorable Court relating to
~
- '
338 cases.
Certain nondebtor defendant healthcare providers
(hereinafter, defendant healthcara providers), including but not
limited to those listed in Exhibit S, hereby rsspond to
Plaintiff's Motion for Severance of Dow corning corporation and
Dow corning Wright corporation, or, in the Alternative, to
Dismiss with prejudice, and to Abstain and Remand those breast
implant actions listed by plaintiff in its February 7, 1997
motion. Defendant healthcare providers oppose plaintiff's
motions for the reasons set forth below.
II. ARGUMENT
A. PLAINTIFFS' CLAIMS AGAInST THE NONPEBTOItS SHOOLD NOT BE
SIVERED BECAUSE THEIR REMOVAL TO FEDERAL COOltT WAS PROPER
AND SEVERANCE WOULD IRREPERABI.Y PREJUDIC!: DEPENDANT
IfWa.LTBClARE PROVTDERS.
Plaintiffs' motions to sever or, alternatively, to
conditionally dismiss with prejudice, Dow corning corporation
(hereinafter referred to as the "debtor") from the above-
captioned actions is premised primarily on plaintiffs' faulty
assertion that the removal of these breast implant cases to the
federal court was somehow improper. Specifically, plaintiffs
erroneously assert that the federal district court lacked subject
matter jurisdiction over these cases and, hence, lacked the
authority to grant their removal.
In so doing, the plainti~~s rely heavily on t~e September
12, 1995 Memorandum opinion and Order of Judge Heed, where Judge
Denise Page Hood held that ths federal court did not have
"related to" jurisdiction over the claims against nendebtor
2
~
defendants. such reliance, however, ignores the well- reruoned'
opinion of the Sixth Court of Appeals in In re Dow Cornina
Corcoration, 86 F.3d 482 (6th Cir. 19961, In which the court
expressly reversed Judge Hood and held that the fedaral court did
Indeed have "related to" jurisdiction over those claims. In
light of that opinion, the plaintiffs' assertions that the debtor
must be severed and cases remanded to the appropriate state
courts of common pleas must be rejected.
l. Defendant Health Care Providers Have Valid contribution
~~aims pendina AOBinst the Debtor.
Throughout their motion, the plaintiffs contend that federal
court jurisdiction does not exist over the plaintiffs' tort
claims against the nondebtor defendants, and, therefore, thoae
claims must be severed from the claims against Dow Corning. In
support of that assertion, the plaintiffs incorrectly and
inexplicably allege that defendant healthcare providers do not
have legally valid contribution claims against the debtor, and
even if they did, those contribution claims would be insufficient
to confer jurisdiction to the federal courts.
In the course of responding to the numerous causes of action
instituted against them by plaintiffs, the defendant healthcare
providers have asserted crossclaims against the debtor for
contribution and/or indemnification. The Pennsylvania
Coordinating Court for silicone Implant Litigation (hereinafter
the "coordinating 'Court") issued a Case Management Order
providing that "crossclaims against other defendants are deemed
to be flied." In re Silicone Imolant Litia., Case Management
3
~
Order No. Bat. II(61, at.t.ached as Exhibit. "A". Clearly/t.he
plaintiffa' allegat.ion that defendant healthcare providers do not
have contribution claims against the debtor is false and does not
lIupport plaintiffs' motions to sever and remand.
Further, the Sixth Circuit court of Appeals has already
determined that such contribution claims against. the debtor are
sufficient to confer jurisdiction over the tort claims of the
plaintiffs against the nondebtor defendants. specifically, the
court held that these claims for contribution could affect the
size of the debtor's estate, the length of the bankruptcy period,
and the ability of the debtcr t.o achieve a successful
reorganization. In re Dow Corning, 86 F.3d at 494. Moreover, it
is the plaintiffs who have alleged theorills of joint and several
liability against all defendants in their breast implant
complaints. The Sixth Circuit found that it was significant to
the finding of "related to" jurisdiction that the plaintiffs have
alserted claims of joint and several liability against all
defendant II I "The principlu regarding the existence of ' related
to'. jurisdiction apply with particular force where, as here,
plaintiffl are claiming that a debtor and nondebtor defendants
acted in concllrt." ~ at. 492.
Additionally, the plaintiffs argue that Section 502(e) of
the Bankruptcy code may operate to disallow defendant haalthcare
provider cro.a-claims against the debtor. As a result, the
plaintiffs contend, federal court jurisdiction is lost and
plaintiffS' tort claims against the defendant h..ltho.ra
4
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providers should be severed.
The time for considerati~n of
claims in the bankruptcy forum has not yet arisen. No allowance
or disallowance of claims has yet taken place. As a result, the
defendant healthcare providers are not yet aware of the status of
their claims. Should disallowance occur, other options are
available under the Bankrupcty Code, as well as disposition of
claims through any reorganization plan. Therefore, the
plaintiffs' argument is not persuasive, and lends no support to
their motions to sever.
Therefore, the plaintiffs assertions that the federal court
does not have jurisdiction over the plaintiffs' tort claims
against the defendant healthcare providers because defendant
healthcare providers do not have valid crossclaims for
contribution against the debtor clearly do not support severance
and remand at this time, and such motions should be denied.
2. Removal By Nondebtor Defendants Was Proper Under The
Federal Rules of Civil Procedure.
a) Removal is supported by Section 1452.
Once it is established that a district court has "related
to" jurisdiction over a tore claim, pursuant to section 1334(b),
removal of that claim to the District Court 10 expressly
permitted by section 1452. Section 1452 provides thatl
'(al party may remove any claim or cause of
action in a civil action other than a
proceeding befcre the United States Tax Court
or a civil action by a governmental unit to
enforce such governmental unit's police or
regulatory power, to the district court for
the district where such civil action is
pending, if such district court has
jurisdiction of such claim or cause of action
5
fII\
(\
under !il:l34 of this title."
28 U.S.C. 51452(a) (1996). Moreovllr, the power of the District
Court, sitting in bankruptcy, to fix the venue for the trial of
such claims is clearly provided in section 157(b) (5). Section
157 (bl (5) states I
"The District Court shall order that personal
injury tort and wrongful death claims shall
be tried In the district court in which the
bankruptcy case is pending, or in the
district court in the district in which the
claim arose, as determined by the district
court in which the bankruptcy case Is
pending. "
28 U.S.C. 5157(b) (5) (1996). As the Sixth Circuit concluded in
In re Dow Camino COro"
"Section 157(bl (5) should be read to allow a
district court to fix venue for caslls pending
against nondebtor defendants which are
"related to. a debtor's bankruptcy
proceedings pursuant to section 1334(b).
This approach will further the prompt, fair,
and complete resolution of all claims
"related to. bankruptcy proceedings, and
harmonize 51334(bl's broad jurisdictional
grant with the oft-stated goal of
centralizing the adminilltration of a
bankruptcy estate."
86 f.3d at 497. Thus, the ramoval to federal court of
plaintiffs' tort claims against the ncndebtor defendantl wa.
entirely appropriate, and the plaintiffs' assertion. that
severance and remand are required due to improper removal ars
baseless and must be rejected.
b) The Nondebtor Manufacturers' purposes for Ramoval
, Were Prooer,
Plaintiffs' repeated attacke on the defendant mlnufacturer.'
purpose for seeking removal of these cases to the fadaral court
6
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are unwarranted. Plaintiffs would have this Court belie~ thae'
the debtor and the defendant healthcare providers have engaged in
some grand conspiracy designed to deny the plaintiffs their
rightful day in court. These assertions are patently false. The
removal of the cases by various manufacturer co-defendants was in
accordance with the rules and there was nothing inappropr~ate
about the process.
While it is true that removal of these claims to the
district court effectively stays plaintiffs' tort claims against
the nondebtor defendants. that is merely incidental to the
removal which was appropriate. The manufacturer defendants
reasoned that consolidation of all claims "related to" Debtor~'
bankruptcy proceeding into a single federal forlm would enable
the district court to more easily determine the validity and fair
value of all plaintiffs' claims. ~ ~.H. Robins Co. v. piccinin
1, 7BB F.2d 994, 1013 (4th Cir. 19B6). This, as argued by the
manufacturer defendants, would, in turn, spare all parties the
expense of litigating countless trials as well ae greatly
increase the prospect of the Debtors succeeding in their
reorganization plan. ~ Further, if the court were to grant
the manufacturers' request, the removal of all nopt-out" claims
to a single federal forum until resolution of, tor example.
defendant healthcare provider cross-claims for contribution
pending against Dow Corning and the deliberations of the National
Science panel, may diminish potential conflicts between state and
federal courts and reduce repetition and costs to the debtor'S
7
,.-/
.''''",,\
estate.
Therefore, the plaintiffs cannot argue that removal by the
nondebtor defendants in this case were for Improper purposes, and
their argument in that regard does not support severance and
remand.
c) Plaintiffs Offer No Proof of Technical
Deficiencies in Removal Procedure.
The plaintiffs also contend that procedural deficiencies in
the debtor'S removal process justify both severance and remand.
Plaintiffs' contention that the debtor'S notice of removal was
technically deficient provides no weight to their motion.
Plaintiffs' vague assertions of these alleged deficienciea
provide little clue as to what possible errors were made by the
removing parties or how plaintiffs were prejudiced therefrom.
For instance, Plaintiffs complain that copies of the notice were
not "timely provided," but they fail to allege when they, in
fact, received these copies. Plaintiffs also state that the
notice must be filed with the bankruptcy clerk, but they fail to
allege that the debtor actually violated this rule. Without
actual proof of procedural deficiency, the plaintiffs' argument
that removal was technically deficient must fail. Clearly, the
plaintiffs have not alleged any technical deficiencies with
sufficient specificity to justify severance and remand.
Therefore, this Court should deny plaintiffs' motions to
sever the debtors frcm the above-captioned actions and to remand
these actions to the state courts where they were first filed.
e
~
8. PLAINTIFrS' cLAIMS AGAIIIST THE NONOESTOR DEFENDANTS
SBOutJ) NOT 81 JU:HANDED TO STATE COURT BECAUSE REHOVAL WAS
l'JOPER AND ptI!MAND IS pplr.MATORE AT THIS TIME.
This Court has the power to remand claims or causes of
action pursuant to Section 1452 (bl. However, bUild upon the
foregoing analysis and the Sixth Circuit'S opinion in 1~ re Dow
~ornina CorD., it is clear that the federal court has
jurisdiction over' these claims. It would be f.ir for all parties
involved if the defendant healthcare providers' crossclaims, in
addition to all of plaintiffs' tort claims, remained consolidated
with the dllbtor's bankruptcy case at this time.
1. Sufficient considerations Exist to Justify Denial of
plaintiffs' Motions to Remand.
The plaintiffs would like this court to believe that there
h no justification for continued delay in remanding cases to
Itata court. Such an argument ignores the important issues
out.tanding In both the BankrUptcy Court and the MOL court. The
continued consolidation cf nondebtor actions may reduce the
potential conflicts between various state and federal courts.
For instance, the Federal District Court for the District of
Oragon haa recently granted Defendants' Motions in Limine to
preclude Plaintiffs' Expert Te.timony. Judge Jonea has ruled,
however, that hia crder will not take effect until the National
Schnee Panel appointed by this Court has reached its
conclusion., in order to prevent duplicative rulings. other
Ilmilar .itu.tions may IIrisll again if remand is pllrmitted here,
oreating n..dl... duplication of effort and waste of judicial
reecurc.',
9
~
Postponing remand at this time may also provide t~
opportunity for resolution of the defendant healthcare providers'
cross-claims for contribution against the debtor. In its
proposed reorganization plan, Dow corning requests the court to
grant one causation trial to determine if silicone gel breast
Implants cause disease in women. Alternatively, the Tort
Claimants have requested that a number of causation trials be
held throughout the country. Determination of this issue may
make trial at the state court level less complicated and reduce
the litigation burdens for all parties involved, depending upon
the eventual outcome of such proceedings. Further, Debtor's
reorganization plan and the proposed joint plan of the Tort
Claimants' and Unsecured Creditors' Committees provide for
different means of liquidating claims. In fact, the process of
determining allowed or disallowed claims has not yet even begun.
Permitting continued consolidation at this time, then, might
allow these issues to be resolved and decrease burdens on state
courts.
Moreover, severance and remand at this time may impede on
the ability of defendant healthcare providers to recover
contribution claims in bankruptcy court or on the state level.
For Instance, there will be outstanding questions as to whether
nondebtor defendants can have their proportionate share of
liability reduced in a state court trial, or if evidence of the
amount of any settlement with the plaintiffs or a co-defendant
will be permitted to offset a recover against the defendant
10
~
pealthcare ~_~viders.
a single forum.
Furthermorll, remanding these casea to their original state
;~.......
These are issues which c,n be resolv.ed In
forums at this point might further complicate the procedural
history of these claims. Certain nondebtor defendants had filed
motions with the United States District Court for the Eastern
District of Michigan seeking to transfer these casee to that
tribunal. The Honorable Denise Page Hood denied those motions
because she believed the District Court lacked subject matter
jurisdiction over these claims. However, as discussed
previously, the United Statss Court of Appeals for the Sixth
Circuit reversed Judge Hood's decision and held that the District
Court did indeed have jurisdiction over these matters. QAI In re
Dow Comino Core., 86 F.3d 482 (6th Clr. 19961. On July 30,
1996, Judge Hood issued another Memorandum opinion and Order,
refusing to exercise jurisdiction over the caaes on the ba.is of
permissive and mandRtory abstention. This ruling is currllntly
before the Sixth Circuit Court of Appeals. Remand at this time
to state court would produce needless expenditures of time and
resources and create chaos at the state level. Should the Sixt~
Circuit Court of Appeals once again revllrse Jud~e Hood, the ca.e.
would once again be transferred from state court to the Eaetero
District of Michigan. Clearly, sufficient considerations remain
to make any moticns for severance and ramand prematurll at this
time.
11
~
2. The Current Cases Do Not Meet This Court's Requiroments
For Remand.
The plaintiffs argue that, since previous cases have been
remanded to state court, the current cases shOULd be remanded as
well. This argument, however, ignores th~se requirements which
the court has praviously demanded be met prior to remand. An
examination of the current cases in light of those requirements
quickly exposes the weakness of the plaintiffs' assertions. Ths
cale. which the plaintiffs seek to have remanded are clearly
distinguishable from those cases that this Court has remanded in
the past. Each State Remand Order that this Court has issued was
partly premised upon the fact that there werp. no crossclaims
pending against the Debtors in any of the remanded cases. For
example, in State Remand Order No.1, this Court stated,
"as there are no pending cross claims against
the Dow defendants in these cases, dismissal
of plaintiffs' claims against thll Dow
dsfendants will effectively eliminate the
ba.is for federal court jurisdiction upon
which removal was premised."
In fact, this Court has previously ordered that the absence of
any pending crossclaims against the Dow defendants is a mandatory
pr.requisite for plaintiffs seeking to remand cases to state
court. Specifically, in State Remand Order No.1, this Court set
forth the requirements for future motions of this kind:
The court expects a large number of similar
motions to be made in the future with respect
to cases removed under 2B U.S.C. 51452(a) and
then transferred to this court under 2B
u.e.c. 51407. The following procedures
should be followed in such case where the
plaintiff(s) will seek remand based o~ a
dismissal with prejudice of the Dow
12
--
defendants. . .
(2) The motion should clearly... (bl
i~dic:at:e whether thll olaintitt has ooted-out
of th_ .tti~ent cla.. or i8 a m_mh.r of th.
;;ttl&m;nt claslI. (el indicatll whethlr thlrl
;;; ;~ ~~oss-claime oendina aaainllt any Dow
defendant.. .
Since each of the defendant healthcare providers in the above-
captioned actions have crossclaims deemed filed against the
debtor and the opt-out status of many plaintiffs is still
unclesr, it would be inconsistent with this Court's prior rulings
to grant plaintiffs' present motion to remand.
Plaintiffs' rely on a recent United States District Court
order in In reI Arlene Eisel, at al. v. Dow Cornino Coru.. at
sl., Civil Action 95-1247 (W.O. Pa. 1995) to support the
contention that. since other federal courts may have granted
motions to sever and have remanded cases to state courts, it
should be done in this case as well. The order by thll district
court in In re Eisel carriea no weight as precedent. It clearly
flies in the face of the letter and spirit of ths MDL order
iseued september 29, 1995, and ignores the well-reasoned opinion
of the Sixth Circuit Court of Appeals in In re Dow Cornina
Corooration, 81 F. 3d 635 (6th Cir. 1996).
The MDL panel's transfer order issued September 29, 1995
transferred 98 cases involving motions to sever and other
jurisdictional objections to this court. The panel explained
that, since jurisdictional objections such as severance will
appear in more than 3,000 breast implant cases, "it would be
difficult to conceive of a more compelling occasion to apply
13
.......
these longstanding principles of Panel jurisprudence." '(See
Panel Order, p.31. The principles to which the MOL was referring
are found in In re IVY, 901 F.2d 7, 9 (2nd Cir. 1990) I
The jurisdictional issue in question is
easily capable of arising ir hundreds or even
thousands of cases in the distli~t courts
throughout the nation.. .Once tranll(erred, the
jurisdictional objections can be hea~d and
reeolved by a single court and review~d at
the appellate level in due course.
Consistency as well as economy is thus
served.
ay implication. the Panel also suggested that cases not yet
transferred to the Northern District of Alabama, with similar
jurisdictional objections. should not be decided by the sitting
district court judge. but should instead be prepared for transfer
and consolidation with other related cases. The current cases do
not meet the letter or spirit of previous court requirements for
remand. The plaintiffS' reliance on the above grounds for
severance and remand is misplaced, and their motions should be
denied.
c. THIS COURT SHOULD NOT ABSTAIN FaOH HEARING TBB ABOVE-
CAPTIONED CLAIMS.
The plaintiffs contend that the court should abstain from
hearing any breast implant claims against nondebtor defendants
punuant to 28 U.S.C. 1334 lcl (1) and (c) (2). In light of the
foregoing analysis, the plaintiffs' assertions are clearly
without merit. Moreover, the issue of abstention is improperly
addressed to thia court. This argument is more properly made
before the Sixth Circuit Court of Appeals, which is currently
reviewing Judga Hcod's July 30, 1996 memorandum opinion and order
14
~
regarding the abstention issue. The defendant healthcare
providers, however, in light of plaintiffs' decision to pursue
the abstention argument before this Court, are compelled to
respond.
1. Mandatorv Abstention.
Title 2B's provisions for mandatory abstention appear in
11334 (c) (2). Section 1334 (c) (2) provides that,
" [u]pon timely motion of a party in a
proceeding based upon a State law claim or
State law cause of action, relatsd to a case
under title 11 but not arising under title 11
or srising in a case under title 11, with
respect to which action could not have been
commenced in a court of the United States
absent jurisdiction under this section, the
district court shall abstain from hearing
such proceeding if an action is commenced,
and can be timely adjudicated, in a State
forum of appropriate jurisdiction."
2B U.S.c. 51334 (c) (2) (1996).
Thus, S1334(c) (2) mandates that a district court abstain
from hearing a claim if the court's only ground for jurisdiction
18 that the claim is "related to" a bankruptcy case and if a
state court can "timely adjudicate" the case. However,
S157(b) (4) provides that " (nlon-core proceedings under
S157(bl (2) (B) of title 28, United States Code (liquidation of
personal injUry tort or wrongful death cases], shall not be
subject to the mandatory abstention provisions of 51334 (elI21."
2B U.S.C. 5157 (b) (4) (1996). Thus, "personal injury cases are
not subject to this mandatory abstention provision." In n White
Motor Credit, 761 F.2d 270, 272 (6th Cir. 19B5). Therefore,
because plaintiffs' claims against the nondebtors are personal
15
~
injury cases, this Court is not required to abstain f~om hearing
them.
2. Permissive Abstention.
Permissive abstention in the above-captioned cases would be
improper as well. Section 1334 (cl (1) permits a district court
to abstain f~om ~earing a proceeding "related to" a bankruptcy
cas. H doing so would be "in the interest of justice, or in the
interest of comity with State courts or respect for State law."
28 U.S.C, 11334 (c) (1) (1996). However, a District Court should
be reluctant to opt in favor of abstention. As the Second
Circuit concluded in In re Pan Am. COrD., "Congress has indicated
that courts should not be too quick to abstain from exercising
their transfer p~wers under 52B U.S.c. 5157 (b) (5). Transfer
should be the rule, abstention the exception." 950 F. 2d B3 9, B45
(2d Cir. 1991). Thus, the provisions of Section 157 (b) (5),
providing that personal injury tort claims "shall be tried in the
District Court in which the bankruptcy case is pending or in the
Dhtrict in which the claim arose," should receive paramount
consideration in a court's abstention analysis.
According to the Fourth Circuit, a court should weigh the
advantag.s and disadvantages of hearing a case before making its
decision about whether or not to abstain. A.H. Robins Co..Ine.,
7B8 F.2d at 1016. Applying this test instantly, the advantages
to be gleaned from the district court hearing plaintiffs' claims
against the nondebtors clearly outweigh any possible
disadvantages .
16
""""
~.
The silicone implant litigation is made complex noc' only by
sheer volume, but also by complicated legal issues. These
include not only state tort law issues, but also issues of
bankruptcy, contribut~on and indemnity. Resolving these issues
all at once may avoid innumerable problems that may arise if they
are adjudicate~ piecemeal. Concerns over conflicting decisions
in a various state and federal courts may be alleviated.
Judicial resources at both the state and federal level may be
preserved. Moreover, litigating all claims in a central federal
forum might increase the chances of the debtor achieving a
successful reorganization. This would benefit all parties. The
debtor may increase the chances of continuing as a going concern.
This, in turn, would enhance its ability to fully restitute any
and all claims and crossclaims against the Debtor. These are not
minor considerations. To the contrary, a paramount desire of
congress in enacting bankruptcy procedures was "to eliminate the
confusion, delay and inefficiencies associated with the
[previous] Act's limited jurisdictional scheme." In re Pan Am.
Core., 950 F.2d at 645.
In contrast, the potential disadvantages cited by plaintiffs
are few and tenuous at best. The district court is more than
capable of interpreting state law for the purposes of
adjudicating plaintiffs' tort claims. In addition, the docket
concerns that plaintiffs cite apply equally to the state court
system. As stated above, the best way to conserve judicial
resources would be to consolidate all claims into a single
17
~
federal tribunal at this time, leaving open the possibi~Lty pf.
remand in the future, once issues such as defendant healthcare
providers' cross-claims against the debtor are resolved.
Plaintiffs' concerns over forum shopping are, likewise,
unavailing. The reduction of litigation costs and duplication of
activity, as wsll as the desire to protect their crossclaims,
lerve as ample justification for the nondebtors to seek removal
of these cases to the district court. Finally, it is unlikely
that plaintiffs' alleged right to a jury trial would be
endangered. Section 1411 provides, in relevant part, that "this
chapter and Title 11 do not affect any right to trial by jury
that an individual has under applicable nonbankruptcy law with
regard to a personal injury or wrongful death tort claim."
The above analysis clearly indicates substantial support for
the position that abstention should not apply in this matter. Aa
the Sixth Circuit Court of Appeals is still considering this
issue, and it is clear meritori.ous arguments exist for reversal,
it would be premature for this Court to grant plaintiffs' motions
to sever and remand on this basis.
D. DINYINQ PLAINTIFFS' HOTIONS ~LL CONSERVE JUDICIAL RESOURCES
AND AVOID PREJUDICE.
Plaintiffs' final contention is that severing their claims
against the Debtors from their claims against the nondebtors is
necessary to prevent waste of judicial resources, avoid prejudice
to the plaintiff. and further the public interest. This argument
ignores the croBBclaims for contribution of defendant healthcare
providers deemed tilee in state court and currently pending
1B
-.
against the debtor in the bankruptcy court.
Judicial resources, at this time, might best be conserved if
all pending claims and crossclaims remain consolidated in a
centralized forum so that they can be addressed at one time.
This would cut down on needless duplication of litigation.
Perhaps more importantly, centralizing this litigation would
prevent the possibility that conflicting orders will be issued by
various state and federal courts. As the Dow Corning
reorganization is still in its early stages, it is not known if a
common causation trial will be held concerning whether silicone
breast implant cause disease. if several such trials will be
held, or if no common causation trial will be held at all. The
National Science Panel has yet to complete its review of the
literature concerning silicone breast implants and their relation
to disease, causing Judge Jones' order precluding plaintiffs'
expert testimony to be put on hold. The issue of abstention is
still pending in the Sixth Circuit Court of Appeals. Crcssclaims
for contribution have not yet been resolved in the bankruptcy
fo~m. Therefore. it would be inefficient and inequitable to
remand these cases at this time.
In contrast, granting plaintiffs' motions at this point
would simply increase the number of tribunals already involved in
this dispute, with a corresponding increase in each party's
litigation costs. Permitting the defendant healthcare providers
to address their crossclaims at the same time that plaintiffs'
claims are being heard would obviate the need for the ncndebtors
19
~
~
. .
to "waste" judicial resources in doing so later.
Plaintiffs will be permitted to pursue their claims against
all defendants after the bankruptcy court has approved the
Debtors' reorganization plan and lifted the stay on litigation.
While the time frame for this to happen may not be as short as
the plaintiffs may like, it is nevertheless the same time frcme
for all parties, including the defendant healthcare providers.
As there has not yet been any proof of the defendant healthcare
providers' liability, the plaintiffs are entitled to no special
treatment in the pursuit of their claims, notwithstanding any
injuries from which they might allegedly suffer. All these
interests may be more easily accommodated in this matter if all
claims and crossclaims are resolved together.
Conservation of judicial resources and the avoidance of
prejudice to defendant healthcare providers clearly justify
denial of plaintiffs' motion to sever and remand.
III. CONCLUSION
For all of the foregoing reasons, defendant healthcare
providers respectfully request that this Honorable Court deny
Plaintiffs' Motions for Severance, or Alternatively for
Conditional Dismissal with Prejudice, and Motions to Remand and
Abstain from Nondebtor Breast .Implant Litigation.
, .
20
I"""
IN THE COURT OF COMMON PLEAS OF M.LEG\lENY COUNTY, PENNSYLVANIA
AS
THE COORDINATING COURT FOR SILICONE IMPLANT LITIGATION
IN RE.
SILICONE IMPLANT LITIGATION
I CASE MANAGEMENT ORDER NO. B
I SBORT FORM COMPLAINT/PLEADINGS/
SERVICE/EXISTING LAWSUITS/
I JURISDICTION/VENUE--FOROM NON
CONVENIENS/SUBSEQUENT
LEGM. RULINGS
ORDER OF COURT.
AND NOW, on this .L1- day of November, au, it 11 hereby
ORDERED as follOWS.
I. NEW r.AWstlTTS
(1) Lawsuits seeking damageD for personal injuries alleged to
have bien sustained in the use of sil icone brent implants may be
commenced only by filing the Short Form Complaint that is attached
to this Order as Exhibit 1 or by filing a praecipe for a writ of
IWI\I1lon..
(2) If a lawsuit is cOllllllenced by filing a praecipe for a writ
of summons, the Short Fonn complaint must be filed within ninety
day. after the writ is filed unleBB there is (ll a court order
entared within the ninety-day period which extends the time for
riling the complaint or (ii) a written Agreement with each of the
defendants which extends the time for filing the complaint. If a
comrlaint i. not timely filed, the c.se is automatically di.missed
for failure to proclIId.
~
(bl All averments of fact in a plaintiff I s complaint
relating to the identity of the person by whom a material act was
committed, the agency or employment of sucn person and the owner-
ship, possession, or control of the property or instrumentality
involved are deemed admitted unless denied specificallY.
(cl A defendant who does not wish to raise preliminary
objections or any affirmative defenses that must be pleaded and who
admits the averments within a complaint described in subparagraph
(41 (bl shall file only a "General Denial."
(5) The affirmative defenses of assumption of the risk,
comparative negligence, contributory negligence, and statute of
limitations are deemed to be pleaded. Consequently, they shall not
be included in the responsive pleading.
(6] Cross claims against other defendants are deemed to be
filed. Consequently, they shall not be raised in the responsive
pleading.
(7) Plaintiffs are not required to file a pleading to a
responsive pleading. All factual allegations in the responsive
pleading an deemed denied.
(8) Defend~nts may not file any counterclaims.
III. ~'OINDER OF ADDITIONM, DEFENDANTS
(1) Except as provided in paragraph (2), until further order
of court, no defendant is permitted to join a person who is not
already a party to the action as an additional defendant.
~
~
The foregoing Reponse to plaintiffs' Motions for Severance
or, in the Alternative, for conditional Dismissal with Prejudice,
and Motions to Remand and Abstain from Nondebtor Breast Implant
Litigation and accompanying memorandum of law is filed on behalf
of certain pennsylvania defendant healthcare providers, including
but not limited to the followingl
Albert Einstein Medical Center
John Angelo, M.D.
Scott P. Bartlett, M.D.
Alejandro Beddings, M.D.
Howard S. Caplan, M.D.
Lester Cramer, M.D.
Francine Cedrone, M.D.
Richard W. Dabb, M.D.
Robert M. Davis, M.D.
Nino DeProphetis, M.D.
Doylestown Hospital
Evangelical Hospital
Hlrry Fallick, D.O.
Marcia Fitzpatrick,M.D.
Thomas Frazier, M.D.
Zaki S. Ftaiha, M.D.
Bruce Genter, M.D.
Richard M. Goldfarb, M.D.
Grandview Hospital
Ralph Hamilton, M.D.
Marvin Hunter, M.D.
John Rhea Barton, surgical
Associates
Robert Kevitch, M.D.
John LaManna, M.D.
Lancaster plastic "
Reconstructive surgery
Lehigh Valley Hospital
sherman Leis, M.D.
Tad E. Lockwood, M.D.
Lower Bucks Hospital
Barbara Lundy, M.D.
Medical College Hospital
Elkins Park Division
Amit Mitra, M.D.
Minny Moser, M.D.
Hunter Neal, M.D.
p.c.curtis A. Ngau, M.D.
Waltar Okunski, M.D.
Olle Penrod, M.D.
Plastic surgery Center
Prosperi-Moser Plastic surgery
Center
Reading Hospital r. Medical
Center
Saint Agnes Medical Center
Saint Mary Hospital
Hanry scheuB nnann. t1. D.
David W. shenton. Jr., M.D.
Margaret S. Skiles, M.D.
John A. Altobelli, M.D.
Allen Bar, M.D.
Lenora R. Barot, M.D.
Thomas Brobyn, M.D.
Clinical Surgical Assocs.
Jose Castillo, M.D.
James L. Columbo, M.D.
J. Wallace Davis, M.D.
Thomas s. Davis, M.D.
Richard L. Dolsky, M.D.
Ted S. Eisenberg, D.O.
Michael Fakhraee, M.D.
Leo D. Farrell, M.D.
James W. Fox, IV, M.D.
Clarence Freed, M.D.
Geisinger Medical Center
Williams P. Gibbons,M.D.
Edward Gotfried, D.O.
Hahnemann University Hospital
Hazel Holst, M.D.
Frederick Janczuk, M.D.
Theodore Katz, M.D.
cynthia A. Kavouksorian, M.D.
Joseph F. Kusiak, M.D.
LaManna-Dooley Plastic Surgery
Donato LaRossa, M.D.
David C. Leber, M.D.
Herndon Lehr, M.D. (Estate of)
Richard Levin, M.b.
David Low, M.D.
Milton LU, M.D.
Richard Manstein, M.D.
David C. Matthews, M.D.
Mercy Hospital
John H. Moore, Jr., M.D.
William Mullis, M.D.
Julius Newman, M.D.,
R. Barrett Noone, M.D.
Pennsylvania Hospital
philadelphia College of
Osteopathic Medicine
sergio Proserpi, M.D.
Peter Randall, M.D.
Maja Reutschi, M.D.
Riddle Memorial Hospital
Saint Joseph Hospital
John C. Schantz, M.D.
Murray Seitchik, M.D.
Barry F. Shesol, M.D.
James W. Slavin, M.D.
;~
UNITED STATES DISTRICT COURT
NORTHERII DISTRICT OF ALABAMA - SOUTHERN DIVISION
IN RE I SILICOllE-GEL BREAST )
IMPLANT PRODUCTS LIABILITY ) Master File No.
LITIGATION (MOL 926) ) CV-9S-P-10000-S
)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA - soUTHERN DIVISION
MARY ANN AB!:LLA )
)
v. )
)
COX-UPHOFF INTERNATIONAL , ET AL. )
)
)
KAREN C. ALBREClIT I
)
v. )
)
DOW CORNING CORPORATION, ET AL. I
)
)
LYNN A. ALDERFER )
)
v. I
)
DOW CORNING CORPORATION, ET AL. )
I
)
MARY ANN BALDWIN I
I
v, )
)
DOW CORNING CORPORATION, ET AL. )
)
NO. 9S-P-1B009-S
NO. 9S-P- -s
NO. 9S-P-18390-S
NO. 86-P-13613-S
~ERTIFICATE OF SERVICE
I, Dorothy Duffy, Esquire, do hereby certify that I caused a
copy of the foregoing Response of Certain Health Care Providers
to the Motions of Plaintiffs' for Severance or, in the .
Alternative, for conditional Dismissal with Prejudice and Motions
to Remand and Abstain from Nondebtor Breast Implant Litigation
and Memorandum in support Thereof, to be served this day by
United States first class mail, postage prepaid:
~
ROBERT M. BRITTON, ESQUIRE
Post' schell, P.C.
19th Floor
lBOO JFK Boulevard
philadelphia, PA 19103-74BO
ELLEN G. CASEY, ESQUIRE
Office of Legal Affairs
University of Pennsylvnaia Medical
Seven Penn Tower
3400 Spruce Street
Philadelphia, PA 19104
JAMES D. COLEMAN, ESQUIRE
aallard, Spahr, Andrews & Ingersoll
Fifty-First Floor
1735 Market Street
Philadelphia, PA 19103-7599
\ "
Center
ANTHONY E. CREATO, ESQURIE
Mesirov, Gelman, Jaffe, Cramer' Jamieson
1735 Market Street
philadelphia, PA 19103-759B
HOWARD M. CYR, III, ESQUIRE
Harvey, Pennington, Hering & Renneisen, Ltd.
Nineteenth Floor - Eleven Penn Center
lB35 Market Street
philadelphia, PA 19103
MARK F. DIGIOVANNI, ESQUIRE
DAVID SUMNER, ESQUIRE
~.cobson, Maymaid, Tuschman , Kalui
17B7 Sentry Parkway West
Suite 450, Bldg. 16
Blue Bell, PA 19422
KATHY DIPILLIS, ESQUIRE
Hourigan, Kluger, spohrer , Quinn
sovereign Building
609 Hamilton Mall
Allentown, PA lBl01
,.
RACHEL B. EISNER, ESQUIRE
Dechert, Price , Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793
GRANT H. FLEMING, ESQUIRE
ALAN MEELY, ESQUIRE
McQuaide Blasko Law Offices
Bl1 University Drive
State College, PA 16BOl
~-...
.'
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
IN RE SILICONE GEL BREAST
IMPLANT PRODUCTS LIABILITY
LITIGATION (MDL-926)
. MASTER FILE NO
. CV 92-P-l0000.S
VB.
MEDICAL ENGINEERING
CORPORATION, ET AL.
NO 95-P. 13602 -5
_r-: ll:l
I""l/l ,/
O' rc
I C' 11
0-- ~J
-;, (,) .~
, . w ..
,'.. ,
. ( 1": ;J
I ..
:':.., I If) -J
~:"l:; w
~.;,a
-I
SHARON MORCH
Ct:RTIFICATE OF SERVICE
AND NOW, this 18th day of
Harch , 1997, I, MICHAEL D PIPA,
ESQUIRE, hereby certify that I am serving a copy of the foregOing document upon the
psrson(s) and in the manner indicated below, which service satisfies the requirsmentll
of the Pennsylvania Rules of CiVil Procedure, by depOSiting a copy of the sams in the
United States Mail, Harrisburg. Pennsylvania, With first-clan postage prepaid, all
follows.
PLAINTIFFS' CO.L1AISON COUNSEL:
Francis H. Hare. Jr. Esquire
Hare. Wynn, Newell & Nawton
601 The Massey BUilding
290 Twenty-First Street North
Birmingham. AL 35203
J Mlchlel Rediker, Esquire
Ritchie & Rediker, PC
312 North Twenty-Third Streit
Birmingham, AL 36203-3676
1"'\
WIlliam B. Griffin, Esquire
Brobeck, Phelger & Harrison
One Market Plaza
Spear Street Tower
San Francisco, CA 94015
Attorney for Defendant
Mentor Corporation
Carl A. Henleln, Esquire
Brown, Todd & Heybum
3200 Capital Holding Cenler
Louisville, KY 40202-3363
Attorney for Defendent
'21' International Holdings, Incl
Scotfoam
John Dernes, Esquirs
Kelley, Drye & Warran
Suite 1400, 303 West Madison
Chicago, IL 60606
Attorney for Defendant
Union Carbide Corp.lChemicals
Joseph M Price, Esquire
Faegre & Benson
2200 Norwesl Cenler
90 South Seventh Street
Minneepolis, MN 55402-3901
Attorney for Defendant
3M
Phillip A. Baker, Esquire
Baker, Silberberg & Keener
Suite 300, 2650 Ocean Park Blvd.
Santa Monica, CA 90405.2936
Attorney for Defendant
Petrarch Systems, Inc. and
Huls American, Inc
Douglas B Schosllinger, Elquire
Dow Corning Corporation
CO 1222
Midland, MI 48666-0995
Attorney for Defendant
Dow Corning Corporation and
Dow Corning Wright Corporation
S. Gordon Elkins, Esquire
Stradley, Ronan, SteveJls & Young
2600 One Commerce Square
Philadelphia. PA 19103
Allorney for Defendantl
Surgitek, Inc, Cabot Medical Corp. and
Circon Corporation
Lowell S. Fine, Esquire
Susan M. Lisppe, Esquire
Alembik, Fine & Callner, PA
Fourth Floor. Marquis One
245 Peachtree Center Avenue
Atlanta, GA 30303
Attorney for Defendant
Koken Company, lid
A Joe Peddy, Esquire
Smith, Spires and Peddy
650 Financial Center
505 North Twentieth Streat
Birmingham, AL 35203-2662
Attornsy for Defendant
Wilshira Tachnologias
,-..,
Victoria Komarnicki, Esquire
Bennett, Brlcklln & Saltzburg
Sixteenth Floor, 1601 Walnut Street
Philadelphia, PA 19103-2316
Jane Koreln Kushon, Esquire
Sand & Saidel, P.C.
113 South Twenty-First Street
Philadelphia, PA 19103
Francis E. Marshall, Jr., Esquire
Marshall & Farreil, P.C.
1323 North Front Street
Harrisburg, PA 17102
Michael W. McGuckin, Esquire
McGuckin & McCarthy
521 Plymouth Road, Suite 115
Plymouth Meeting, PA 19462
D. Madelaine Miller, Esquire
Obermeyer, Rebmann, Maxwell & Hippell
111 S. 15th Street, 14th Floor
Philadelphia, PA 19102
Dean Murtagh, Esquire
Cathy Lourenco, Esquire
German, Gallagher & Murtagh
The Bailevue, Suite 500
200 S. Broad Street
Philadelphia, PA 19102
Cheryl M Nicholson, Esquire
Dunns, Haase, Sullivan, Mallon, Cherner
& Broadt
216 South Orange Street
Media, PA 19063
Gilda L. Kramer, Esquire
Suite 1100, 1500 Walnut Street
Philadelphia, PA 19102
John J. Leonard, Esquire
Lisa A. Sheluga, Esquire
Leonard, Tillery & Davison
Eighteenth FI., 1515 Market Street
Philadelphia, PA 19102-2066
Edward C. McCardle, Esquire
King, McCardle, Herman, Freund &
Olexa
110-112 North Sixth Street
P.O. Box 449
Allentown, PA 161015
Michael McKernan, Esquire
McKernan & McCartin, P.C.
Suite 300, 502 W. Office Center Drive
Fort Washington, PA 19034
Jeremy Mishkin, Esquire
Montgomery, McCracken, Walker &
Rhoads
Twentieth Floor - Three Parkway
Philadelphia, PA 19102
Lynn Nahmani, Esquire
Marshall, Dennehey, Warner,
Coleman & Goggin
One Montgomery Plaza, Suite 1002
Norristown, PA 19401
Beatrice O'Donneil, Esquire
Duane, Morris & Hecksher
One Liberty Place
1650 Market Street
Philadelphia, PA 19103-7396
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STRADLEY. R(lNON. STEVENS & YOUNG, LLP
By: S. Gordon Elkins
Daniel T. Filch
Kimberly A. Hendrix
J.D. Nos. 02789/53717/76623
2600 One Commerce Square
Philadelphia. PA 19103
(21S) 564-8000
AlIomeys Iln: Ilrllllll.Mycn Squl~~ CII.
The CINllJer CIIIIIJI~nlcs, Inc.. CINllJer
SUrpkMI. Inc.. Medlul Enplneerlnp elll'Jl,
Bnd NBlur~1 Y b'urplcBI SJlCclBlllcs, Inc,
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
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Sharon Morch and Michael Morch, wlh
Plaintlms)
CIVIL ACTION
No. 95.P.13602.S
v.
Medical Engineering Corp.. el al.
Defendant
SUIISTITIJTI()N OF COUNSIU"
WI11IDRA W AI. OF API)EARJ\NCE
Please withdraw our DppearWlce as allorncys for DefcndwllS, Cooper Surgical, Inc.,
Bristol-Myers Squibb Company, Medical Englnccring Corporallon. Natural Y Surgical
Special tics, Inc. and The Cooper Companies. Inc.
~~~i{.. de~~
STRADLEY RONON STEVENS & YOU G, LLP
By: S. Gordon Elkins
Daniel T. Filch
Kimberly A. Ilendrix
2600 One COlllmerce Square
Philadelphia. PA 19103
(2IS) 5M.SO(}O
Daled: -1/1IJJ:-
f'II\
("
Proceedings include all events.
1195cv12BO Morch, et al v. Dow Corning Corporat, et al
Coopervision, Inc.
defendant
COOPER SURGICAL, INC., a
wholly owned subsidiary
Cooper Companies, Inc.
defendant
of the
DOW CORNING CORPORATION
defendant
DOW CORNING WRIGHT CORPORATION
defendant
NATURAL Y SURGICAL SPECIALTIES,
INC.
defendant
21 INTERNATIONAL HOLDINGS,
INC.
fka
Knoll International Holdings,
Inc.
fka
Foamex Products, Inc.
fka
Scot foam Corporation
fka
General Felt Industries, Inc.
fka
Eddy Acquisitions now
operating under the fictitious
name of Foamex, a Division of
KIHI
defendant
SCOTT PAPER COMPANY
defendant
TERMED
HOG
Robert S. Forster, Jr.
[COR LD NTC)
Krusen, Evans & Byrne
Curtis Center
601 Walnut St.
Suite 1100
Philadelphia, PA 19106-3393
215-923-4400
Robert S. Forster, Jr.
(See above)
[COR LD NTC]
Gordon S. Elkins
(See above)
[COR LD NTC)
Robert M. Britton
[COR LD NTC]
Post & Schell, P.C.
19th Floor
1800 JFK Boulevard
Phila, PA 19103
215-587-1051
Robert M. Britton
(See above)
(COR LO NTC)
Docket as of November 1, 1995 11145 am
Page 2
""'"
I"""
Proceedings include all events.
1195cv12BO Morch, et al v. Dow Corning Corporat, et al
TERMED
HBG
8/B/95
1
JOINT NOTICE OF PETITION FOR REMOVAL filed by Dow Corning
Corp. 6< Dow Chemical. Copy of orig. cmp. from Cumb. Co. Cmn.
Pleas case no. 33B3 Civil 1994 attached. R# 111 118351
$120.00. (js) mntry date OB/l0/95] [Edit date OB/11/95]
REMARK- Copy of docket to J. Caldwell. Case file, copy of
cmp. 6< docket to MJ Smyser. Copy of cmp. & docket to MDL.
(js) [Entry date OB/11/95]
ORDER by Magistrate J, A. Smyser Case Management
Conference set for 9:15 a.m. on 9/28/95. (CCI all
Ct.) (jh) [Entry date OB/17/95]
counsel 6<
8/B/95
8/15/95
2
8/23/95
3
LETTER - dtd. B/21/95 to Patricia Howard, Clerk on
clerk enclosing docket entries, complt. 6< 2 orders
in the ED of Michigan dtd. B/I0/95 & B/11/95. (am)
LETTER - dated 8/1B/95 to Ct. from Atty. Forster o/b/o
Corning requesting general stay order pending decision
Judge Hood. (jh) [Entry date OB/2B/95]
MDL from
entered
8/24/95
4
Dow
of
8/24/95 5
ORDER br Judge William W. Caldwell IT IS ORDERED THAT the
time w/ n which the parties to the cases which are the
subject of the notices of removal may file their mtns,
statements or other responses to the notices of removal is
extended 10 days, calculated in accordance with FRCP 6,
after Judge Hood enters an order in response to Dow Corning
Corp. 's mtn to transfer. It is further ordered that all
proceedings in this Court in those cases subject to the
notices of removal are stayed for the same time period
folowing Judge Hood's order. Case stayed (CCI all counsel
6< Ct.) (jh) [Entry date 08/28/95]
8/29/95 6
Statement by pLaintiff Sharon Morch pursuant to Federal
Rule of Bankruptcy Procedure 9027(e) in the Notice of
Removal (ao) [Entry date 08/30/95]
Demand for Trial by Jury by pltfs (,0) [Entry date OB/30/95]
Remark; Docs #6 6< #7 to Mag Judge Smyser (ao)
LETTER to court dtd. B/28/95 from Jamie L. Sheller, Esq.
advising that this is a breast implant matter currently
being reviewed by the fed. ct. in Michigan as well as the
Judicial Panel on multidistrict litigation, & requesting
that the CMC scheduled for 9/29/95 be cancelled. (tm)
ORDER by Magistrate J. A. Smyser IT IS HEREBY ORDERED that
the CMC scheduled for 9/2B/95 is cancelled pursuant to
Chief Judge Rambo's order of B/24/95, to be rescheduled if
appropriate after the ant icipated order of Judge Hood,
Eastern District of Michigan. The parties shall file a
status report on or before 9/2B/95. (cc I all counsel &
Ct.) (jhl [Entry date 08/31/95]
8/29/95 7
8/30/95
8/30/95 B
8/30/95 9
Docket as of November 1, 1995 11:45 am
Page 4
.
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