Fuller et al v. Skechers USA Inc II et al

Filing 11

TRANSFER ORDER transferring the case to the Western District of Kentucky for inclusion in MDL 2308 In Re Sketchers Toning Shoe Products Liability Litigation. Signed by John G. Heyburn II, Chairman, Panel on Multidistrict Litigation on 12/19/11. (kpr)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

Dec 19, 2010

Michelle Goetzinger

IN RE: SKECHERS TONING SHOE
PRODUCTS LIABILITY LITIGATION

MDL No. 2308

TRANSFER ORDER

Before the Panel: Pursuant to 28 U.S.C. § 1407, plaintiffs in six actions move for centralized
pretrial proceedings in the Northern District of Ohio or, alternatively, the District of District of
Columbia.
Plaintiffs’ motion includes twelve actions pending in nine districts, as listed on Schedule A.
The Panel also has been notified of eight additional related actions.1
Defendants2 oppose centralization and, alternatively, suggest centralization in the Southern
District of California, the Southern District of Ohio or the Western District of Kentucky. Responding
plaintiffs support centralization, though there is some disagreement about the selection of the
transferee district. Plaintiffs in four actions and a District of Utah potential tag-along action support
plaintiffs’ motion in its entirety. Plaintiffs in the Northern District of Ohio Nell action and three
potential tag-along actions support centralization in the Southern District of Ohio or, alternatively,
the Northern District of Ohio.
On the basis of the papers filed and the hearing session held, we find that these twelve actions
involve common questions of fact, and that centralization will serve the convenience of the parties
and witnesses and promote the just and efficient conduct of this litigation. These actions share factual
questions regarding injuries plaintiffs sustained as an alleged result of wearing purportedly defective
Skechers “Shape-Ups” toning shoes, which contain a rocker bottom sole that plaintiffs contend
altered their gait and caused severe lateral instability. Additional common facts are found in plaintiffs’
allegations that Skechers promoted its toning shoes as conferring multiple health benefits in addition
to those conferred by ordinary athletic shoes, while knowing that toning shoes do not confer such
benefits, and that Skechers failed to warn of serious additional risks associated with use of its toning
shoes. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings,
including with respect to pretrial Daubert motions; and conserve the resources of the parties, their
counsel, and the judiciary.

1

These actions and any other related actions are potential tag-along actions. See Rules
1.1(h), 7.1 and 7.2, R.P.J.P.M.L.
2

Skechers).

Skechers Fitness Group, Skechers, USA, Inc., Skechers, USA, Inc. II (collectively

-2Skechers opposes centralization primarily on the grounds that the respective plaintiffs’ injuries
vary and its liability in each action will hinge on highly individualized facts, such as those surrounding
the causation of each plaintiff’s injuries and each plaintiff’s reliance on (and the materiality of)
representations made about the toning shoe product. Defendants have made compelling arguments,
but we disagree with defendants that, in these circumstances, the presence of unique and potentially
dispositive fact issues in each case eliminates the benefits of Section 1407 centralization. Plaintiffs’
common theories of product defect run throughout each action, and in our opinion centralization is
merited to reduce duplicative discovery and motion practice regarding this common thread. See also
In re Zimmer Durom Hip Cup Prods. Liab. Litig., 717 F.Supp.2d 1376, 1377-78 (J.P.M.L. 2010)
(Defendant opposed centralization because, inter alia, the actions involved multiple individualized
fact issues surrounding issues such as causation. The Panel ordered centralization, noting: “We
understand these arguments, but our experience causes us to respectfully disagree as to their
significance. Though the actions certainly present some individual issues, this is usually true of device
cases and other products liability cases.”).
We also note that this litigation appears to present more complex factual questions regarding
the alleged design defects of Sketchers toning shoes than those found in other recent products liability
dockets in which we denied centralization.3 As this litigation involves the toning shoe product of a
single defendant, it is distinguishable from recent instances in which the Panel denied centralization
in products liability dockets involving multiple defendants and products .4

3

See, e.g., In re: Blair Corp. Chenille Robe Prods. Liab. Litig., 703 F.Supp.2d 1379, 1380
(J.P.M.L. 2010) (denying centralization of four actions regarding the propensity of chenille robes to
catch fire, describing the actions as “relatively straightforward personal injury or wrongful death
actions and that the litigation will focus to a large extent on individual issues of fact concerning the
circumstances of each consumer's injuries”); In re: Abbott Laboratories, Inc., Similac Prods. Liab.
Litig., 763 F.Supp.2d 1376 (J.P.M.L. 2011) (denying centralization of five actions concerning “recall
of certain Similac products because of the presence of beetles and/or beetle larvae, which according
to the FDA posed no immediate health risk, other than the possibility of the consuming child’s
gastrointestinal discomfort and refusal to eat” and describing “relatively factually limited
circumstances” of a problem at one manufacturing line at one manufacturing facility).
4

See, e.g., In re: Ambulatory Pain Pump-Chondrolysis Prods. Liab. Litig., 709 F.Supp.2d
1375, (J.P.M.L. 2010) (denying centralization of 102 actions that involved different medical devices,
which were used with different anesthetics and manufactured by different companies (several of which
were defendants in only a handful of cases)); In re: Victoria’s Secret Undergarments/Intimate
Apparel Prods. Liab. Litig., 626 F.Supp.2d 1349, 1350 (J.P.M.L. 2009) (denying centralization of
four actions, noting that “[w]hile each action alleges that Victoria’s Secret undergarments are
defective, it appears that this common allegation may be overshadowed by factual issues unique to
each action. Victoria’s Secret sells a vast array of brands, styles, and colors of undergarments, and
they are manufactured by various factories with components from various suppliers.”).

-3While any number of the proposed transferee districts would be acceptable, we choose the
Western District of Kentucky. The action pending in this readily accessible district was filed several
months before most other actions. Additionally, the Western District of Kentucky enjoys general
docket conditions conducive to the efficient resolution of this litigation. Finally, by selecting Judge
Thomas B. Russell to preside over this matter, we are selecting a jurist experienced in multidistrict
litigation to steer this litigation on a prudent course.
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, the actions listed on
Schedule A and pending outside the Western District of Kentucky are transferred to the Western
District of Kentucky and, with the consent of that court, assigned to the Honorable Thomas B.
Russell for coordinated or consolidated pretrial proceedings.

PANEL ON MULTIDISTRICT LITIGATION

_________________________________________
John G. Heyburn II
Chairman
Kathryn H. Vratil
Barbara S. Jones
Marjorie O. Rendell

W. Royal Furgeson, Jr.
Paul J. Barbadoro
Charles R. Breyer

IN RE: SKECHERS TONING SHOE
PRODUCTS LIABILITY LITIGATION

MDL No. 2308

SCHEDULE A

Eastern District of Arkansas
Lisa Fuller, et al. v. Skechers, U.S.A., Inc., et al., C.A. No. 1:11-00084
District of District of Columbia
Theresa Croak, et al. v. Skechers, U.S.A., Inc., et al., C.A. No. 1:11-01458
Northern District of Georgia
Susan Reno-Gilliland, et al. v. Skechers, U.S.A., Inc., et al., C.A. No. 4:11-00241
Eastern District of Kentucky
Melissa Kearnely, et al. v. Skechers, U.S.A., Inc., et al., C.A. No. 6:11-00139
Western District of Kentucky
Allison Drury v. Skechers, U.S.A., Inc., et al., C.A. No. 3:11-00201
District of Maryland
Denise Hagvall v. Skechers, U.S.A., Inc., et al., C.A. No. 1:11-02805
Karen McClain v. Skechers, U.S.A., Inc., et al., C.A. No. 1:11-02807
Northern District of Ohio
Lynn P. Orsine, et al. v. Skechers U.S.A., Inc., et al., C.A. No. 1:11-01654
Linda Nell v. Skechers, U.S.A. Inc., et al., C.A. No. 4:11-02050
Jessica Wilson v. Skechers, U.S.A., Inc., et al., C.A. No. 5:11-02008
Southern District of Ohio
Holly Ward, et al. v. Skechers, U.S.A., Inc., et al., C.A. No. 1:11-00080
Western District of Tennessee
Mai Moore v. Skechers, U.S.A., Inc., et al., C.A. No. 2:11-02849