Free MOTION to Relate Case - District Court of California - California

Case 3:08-cv-03703-BZ

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Geoffrey R. W. Smith (CSBN 49947) [email protected] GEOFFREY SMITH PLLC 1350 I Street, NW, Suite 900 Washington, D.C. 20005 Telephone: (202) 625-1224 Facsimile: (202) 333-1637 Philip S. Beck (Pro Hac Vice to be filed) [email protected] Lindley J. Brenza (Pro Hac Vice to be filed) [email protected] Kaspar J. Stoffelmayr (Pro Hac Vice to be filed) [email protected] Carolyn J. Frantz (Pro Hac Vice to be filed) [email protected] BARTLIT BECK HERMAN PALENCHAR & SCOTT 54 West Hubbard Street, Suite 300 Chicago, IL 60610 Telephone: (312) 494-4411 Facsimile: (312) 494-4440 Duncan Barr (CSBN 49259) [email protected] Molly A. Kuehn (CSBN 230763) [email protected] O'CONNOR, COHN, DILLON & BARR 2405 16th Street San Francisco, CA 94103 Telephone: (415) 281-8888 Facsimile: (415) 503-4117 Attorneys for Defendant Bayer Corporation Marilyn A. Moberg (CSBN 126895) [email protected] Monica Y. Choi (CSBN 215847) [email protected] REED SMITH LLP 355 South Grand Avenue, Suite 2900 Los Angeles, CA 90017 Telephone: (213) 457-8000 Facsimile: (213) 457-8080 Richard Berkman (Pro Hac Vice to be filed) [email protected] R. David Walk, Jr. (Pro Hac Vice to be filed) [email protected] DECHERT LLP Cira Center 2929 Arch Street Philadelphia, PA 19104-2857 Telephone: (215) 994-4000 Facsimile: (215) 655-2684
DEFENDANTS' JOINT ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED PURSUANT TO CIVIL L.R. 3-12 1

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DEFENDANTS' JOINT ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED PURSUANT TO CIVIL L.R. 3-12 2

Attorneys for Defendant Baxter Healthcare Corporation UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION Chang, Y.; Chen, C.; Chen, T-Y., individually and as successor in interest on behalf of Chen, H.; Chen, S. and Chen, C-Y., individually and as successors in interest on behalf of Chen, K. and Chen, L-Y.; Huang, Y. and Chen, P., individually and as successors in interest on behalf of Chen, N.; Chen, T. and Shih, M.; Chiu, C-F., individually and as successor in interest on behalf of Chiu, F.; Ho, C-L., and Ho, H-Y., individually and as co-personal representatives of the Estate of Ho, C-C.; Hsieh, Y. and Hsieh C., individually and as successors in interest on behalf of Hsieh, T.; Yang, M., individually and as successor in interest on behalf of Huang, Y.; Huang, Y-H.; Wu, M., individually and as successor in interest on behalf of Lai, C-Y.; Wu, M.; Li, CH. and Wang, S.; Li, P. and Li, L-S., individually and as successors in interest on behalf of Li, C-C.; Li, P-W.; Li, S.; Liao, C.; Lin, C-M. and Lin, C-F., individually and as successors in interest on behalf of Lin, CheH.; Lin, P., individually and as successor in interest on behalf of Lin, C-H.; Lin, Y., individually and as successor in interest on behalf of Lin, Chi-M.; Yang, K., individually and as successor in interest on behalf of Lin, S.; Liu, C-A. and Chang, Y-Y., individually and as successors in interest on behalf of Liu, C.; Liu, P., individually and as successor in interest on behalf of Liu, H.; Liu, Y. and Chuang, L.; Tai, A., individually and as successor in interest on behalf of Tai, M.; Tsai, C-H.; Huang, M-Y., individually and as successor in interest on behalf of Tsai, C-M.; Tsai, Y. and Huang, MC., individually and as successors in interest on behalf of Tsai, H-T.; Li, A., individually and as successor in interest on behalf of Tsai, S.; Tseng, C.; Wang, M.; Yu, W., CASE NO.: CV 08 3703 (BZ) E-FILED DEFENDANTS' JOINT ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED PURSUANT TO CIVIL L.R. 3-12

RELATED TO: Peng, et al. v. Bayer Corporation, et al., No. CV 08 3704 (JL)

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Bayer Corporation, Successor to Miles Laboratories and Miles, Inc.; Successor to Cutter Biological, and Cutter Laboratories, Inc. and Baxter Healthcare Corporation, and its Hyland Division,

In accordance with Civil Local Rule 3-12, Defendants Bayer Corporation 1 and Baxter Healthcare Corporation, improperly sued as "Baxter Healthcare Corporation, and its Hyland Division," through undersigned counsel, hereby notify this Court that the abovecaptioned action is related to the following action which has also been removed to the United States District Court for the Northern District of California: 1. Peng, et al. v. Bayer Corporation, et al., Case No. CV 08 3704 (JL) The Chang and Peng cases meet the definition of "related" cases under Local Rule 312. To be deemed related the Local Rules require that: (1) the actions concern substantially the same parties, property, transaction, or event; and (2) it appears likely that there will be an unduly burdensome duplication of labor and expense or conflicting results if the cases are conducted before different judges. See L.R. 3-12(a). Here, two lawsuits, against the same two defendants, both brought by citizens of Taiwan, and both removed to this Court, involve the same allegations, i.e. breaches of identical provisions in settlement agreements arising from essentially identical facts. As such, both cases will involve the same facts and law, including identical initial procedural issues in this Court that should be decided efficiently and consistently by a single judge. I. The Two Actions Are Substantially the Same Plaintiffs in both the Chang and Peng cases are citizens of Taiwan asserting claims "to enforce the provisions of a "contract ... ." Those contracts are basically identical agreements, entered into in Taiwan from 1998 to 2002, between Bayer and Baxter and the named Plaintiffs or their family

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Miles Laboratories, Miles, Inc., Cutter Biological and Cutter Laboratories, Inc. do not exist as such as separate corporate entities. Through a series of mergers, acquisitions and changes of corporate name they are now part of Bayer Corporation.
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members. In each case, the named plaintiff or a family member was a person with hemophilia who allegedly took medications used to treat hemophilia distributed in Taiwan by Bayer and/or Baxter. Allegedly as a result, the person with hemophilia was infected with the virus known as "HIV." In both Chang and Peng, the wife of one infected hemophiliac alleges that she was, in turn, infected by her husband. Under the agreements, for each infected person, Bayer and Baxter paid the sum of approximately US$60,000 to the infected person or members of their family. The dispute in both cases is over the meaning of identical language in all of the agreements. Plaintiffs assert (and Defendants deny) that under Paragraph 9 of the agreements Plaintiffs are entitled to an additional payment equal to the amount by which other settlements of similar claims in other countries exceeded the amount the Plaintiffs were paid in Taiwan. In short, Chang and Peng are essentially the same action brought by two separate groups of similarly situated plaintiffs. As such they clearly satisfy the first test of relatedness under Local Rule 3-12. II. Both Cases Should Be Conducted Before the Same Judge

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Because Chang and Peng are based on the same facts and will involve the same law, there is every reason to have the merits heard by the same judge in this Court, if and when such action in this Court is called for. However, initially, in both Chang and Peng, this Court will need to consider whether to stay proceedings in the Northern District of California, pending the outcome of steps that have already been initiated before the Judicial Panel on Multidistrict Litigation ("the Panel") to transfer these cases to MDL-986: In re "Factor VIII or IX Concentrate Blood Products" Products Liability Litigation, pursuant to 28 U.S. C. § 1407. 2 MDL-986 is pending before The Honorable John F. Grady in the Northern District of Illinois. Defendants have requested that Plaintiffs' counsel consent to a stay pending the outcome of the § 1407 proceedings and he is

See "tag along" notifications filed with the Panel under J.P.M.L Rule 7.2(i) on August 7, 2008, attached hereto as Exhibit A.
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currently considering that request. Since MDL-986 was established in 1993, every case filed in this Court against Bayer and Baxter involving their factor concentrates has been transferred to Judge Grady; most without objection. 3 That includes a case filed in this Court in 2004, No. C 04 1925, by the same counsel for most of the same plaintiffs in the current Chang case. 4 Plaintiff Peng, Da'Gang, lead plaintiff in the current Peng case, also filed a case in the Superior Court of California, County of Los Angeles, in 2004 as No. BC315949. That case was removed to the Central District of California as No. CV043741 and was also transferred to MDL-986. 5 If Plaintiffs ultimately oppose a stay in these proceeding, it makes no sense to have

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that dispute decided by different judges. 6 And if there is no stay, or if the cases are eventually remanded for a determination on the merits, assignment of these cases to a single judge will also

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See Defendants' Local Rule 3-13 notice in this matter.

See Panel Order CTO-78 dated July 27, 2004, attached hereto as Exhibit B. The Complaint in No. C 04 1925 (N.D. CA 2004) designated that case as a "Tag Along Action to MDL 986." When that same counsel filed a new Complaint in the Northern District of California, on behalf of relatives of one of the 2004 Chang plaintiffs who had died, he designated it as a case related to cases previously transferred to MDL-986. See Notice of Related Cases file September 15, 2006 in Ho, Chih-Lung, et al. V. Bayer Corp. et al, No. C-06-5667MJJ (N.D. CA 2006). See Panel Order CTO-78 dated July 27, 2004, attached hereto as Exhibit B. Mr. Baum now also represents this plaintiff. The Chang plaintiffs who are already before Judge Grady in MDL-986 recently filed a "Motion for an Order Severing Plaintiffs' Contract Claims" (attached hereto as Exhibit C) and sought to have them remanded to the Northern District of California; this on the ground that they were unrelated to the tort claims for which MDL-986 was originally established. Judge Grady denied that motion, concluding that "the `contract claims' are closely related to the tort claims and that severance would destroy the coherence of the litigation." He found that it was "necessary" for him to retain jurisdiction over the "contract claims" to decide a pending motion to dismiss the Chang and Peng plaintiffs based on forum non conveniens. See Order of June 10, 2008, attached hereto as Exhibit D. Specifically, all of the claims of all of the Taiwan plaintiffs in MDL-986 are currently subject to a motion to dismiss on the basis of forum non conveniens. Discovery related to that motion took place over several months and has included contested motions before Judge Grady. In addition to the production of documents, American counsel have already traveled to Taiwan for the deposition of Defendants' expert and the plaintiffs' opposition brief is due on August 18, 2008. Under the schedule established by Judge Grady for this motion, the briefing should be completed no later than October 2, 2008.
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this Court, and ensure the just, expeditious and consistent resolution of all disputed issues. In short, because the Chang and Peng cases raise the same substantive and procedural issues, assignment to different judges in this District would result in undue duplication of labor and expense and risk inconsistent results. Therefore, Chang and Peng clearly satisfy the second test of relatedness under Local Rule 3-12. For all the foregoing reasons, Bayer and Baxter respectfully suggest that the Peng case be assigned to The Honorable Magistrate Judge Bernard Zimmerman.

Dated: August 8, 2008

GEOFFREY SMITH, PLLC

By: /s/Geoffrey R. W. Smith Geoffrey R. W. Smith

Attorneys for Defendant Bayer Corporation Dated: August 8, 2008 REED SMITH LLP By: Geoffrey R.W. Smith on behalf of and with authorization of Marilyn Moberg Marilyn A. Moberg Monica Y. Choi Richard Berkman (Pro Hac Vice to be filed) David Walk (Pro Hac Vice to be filed) Attorneys for Defendant Baxter Healthcare Corporation

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PROOF OF SERVICE

I am over the age of eighteen years and not a party to the within action. I am a member of the bar of this court. My business address is GEOFFREY SMITH PLLC, 1350 I Street, NW, Suite 900, Washington, DC 20005.

On August 8, 2008, I electronically filed the following document(s) with the Clerk of the Court using the CM/ECF system, which sent electronic notification of such filing to all other parties appearing on the docket sheet, as listed below.

DEFENDANTS' JOINT ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED PURSUANT TO CIVIL L.R. 3-12 Michael L. Baum, Esq. Email: [email protected] Attorneys for Plaintiffs Marilyn Ann Moberg, Esq. Email: [email protected] Attorneys for Defendant Baxter Healthcare Corporation I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on August 8, 2008, at Washington, D.C..

/s/Geoffrey R. W. Smith

PROOF OF SERVICE

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