City Of San Jose v. Monsanto Company et al

Filing 55

PANEL ON MULTIDISTRICT LITIGATION ORDER - DENYING TRANSFER. (cv, COURT STAFF) (Filed on 4/7/2016)

Case MDL No. 2697 Document 21 Filed 04/07/16 Page 1 of 3

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION
IN RE: MONSANTO PCB WATER
CONTAMINATION LITIGATION

MDL No. 2697

ORDER DENYING TRANSFER
Before the Panel:* The municipal plaintiffs1 in the actions listed on Schedule A move under
28 U.S.C. § 1407 to centralize pretrial proceedings in this litigation in the Northern District of
California. This litigation consists of six actions—three actions pending in the Northern District of
California and one action each in the Southern District of California, the Eastern District of
Washington, and the Western District of Washington—as listed on Schedule A.2 Plaintiff San Diego
Unified Port District (the Port District) supports centralization in any district in California.
Defendants Monsanto Co., Solutia Inc., and Pharmacia LLC (collectively, Monsanto) oppose
centralization. Alternatively, should the Panel centralize this litigation, Monsanto suggests the
Southern District of California as the transferee district.
On the basis of the papers filed and the hearing session held, we conclude that centralization
is not necessary for the convenience of the parties and witnesses or to further the just and efficient
conduct of this litigation. It is undisputed that these actions share questions of fact arising from
allegations that polychlorinated biphenyls (PCBs) manufactured by Monsanto between 1935 and
1977 have contaminated certain marine environments and that plaintiffs have or will incur costs to
remediate PCBs from urban runoff, stormwater, sediment, and bodies of water. That, however, is
where the commonality among these actions ends. Each action is an individual public nuisance
action brought by a different municipal plaintiff alleging contamination of a different body of water:
San Diego Bay (the action in the Southern District of California), San Francisco Bay (the three
actions in the Northern District of California), the Spokane River (the action in the Eastern District
of Washington), and the Duwamish River (the action in the Western District of Washington). The
factual questions relating to the alleged contamination of each of these bodies of water undoubtedly
will differ—particularly as plaintiffs do not allege that Monsanto directly contaminated these waters,
but rather that PCBs manufactured by Monsanto and incorporated into other products thereafter

*

Judge Marjorie O. Rendell took no part in the decision of this matter.

1

The municipal plaintiffs include the City of San Jose, the City of Oakland, the City of
Berkeley, the City of San Diego, the City of Spokane, and the City of Seattle.
2

The parties also informed the Panel at oral argument of a potential seventh related action,
which has been authorized by the City of Portland, but not yet filed.

Case MDL No. 2697 Document 21 Filed 04/07/16 Page 2 of 3

-2leached into the environment. Similarly, the facts relating to regulation of these waters and
plaintiffs’ remediation efforts is likely to differ significantly.
The proponent of centralization bears a heavier burden to demonstrate that centralization is
appropriate where only a minimal number of actions are involved. See In re Transocean Ltd. Sec.
Litig. (No. II), 753 F. Supp. 2d 1373, 1374 (J.P.M.L. 2010). Here, the three actions in the Northern
District of California have been assigned to a single judge and are proceeding in a coordinated
fashion. Thus, for purposes of our analysis, there effectively are just four actions here pending in
four districts. All of these actions are pending within the Ninth Circuit, reducing any potential for
inconsistent, substantive pretrial rulings that could produce an inconsistent outcome on the merits.
Additionally, Monsanto ceased manufacture of PCBs nearly four decades ago, and there have been
a number of personal injury and other lawsuits brought against Monsanto in the intervening years.
The resulting maturity of discovery relating to the manufacture and sale of PCBs, its toxicity, and
its alleged propensity to leach into the environment will facilitate informal coordination of the
discovery in these actions, as will the fact that all of these actions share common plaintiffs’ and
defense counsel.3 Monsanto has stated in its papers and at oral argument that it is committed to
cooperating with plaintiffs’ counsel to avoid duplicative discovery. Given the limited number of
actions and involved counsel, as well as the significant factual differences among the actions,
informal coordination between the involved courts and cooperation by the parties appear eminently
feasible and preferable to centralization. See, e.g., In re Eli Lilly & Co. (Cephalexin Monohydrate)
Patent Litig., 446 F. Supp. 242, 244 (J.P.M.L. 1978); see also Manual for Complex Litigation,
Fourth, § 20.14 (2004).
IT IS THEREFORE ORDERED that the motion for centralization of these actions is denied.

PANEL ON MULTIDISTRICT LITIGATION

__________________________________________
Sarah S. Vance
Chair
Charles R. Breyer
Ellen Segal Huvelle
Catherine D. Perry

3

Lewis A. Kaplan
R. David Proctor

With respect to the plaintiffs, only the Port District (a co-plaintiff in the action pending in
the Southern District of California) is represented entirely by separate counsel.

Case MDL No. 2697 Document 21 Filed 04/07/16 Page 3 of 3

IN RE: MONSANTO PCB WATER
CONTAMINATION LITIGATION

MDL No. 2697
SCHEDULE A

Northern District of California
CITY OF SAN JOSE v. MONSANTO COMPANY, ET AL., C.A. No. 5:15-03178
CITY OF OAKLAND v. MONSANTO COMPANY, ET AL., C.A. No. 5:15-05152
CITY OF BERKELEY v. MONSANTO COMPANY, ET AL., C.A. No. 5:16-00071
Southern District of California
SAN DIEGO UNIFIED PORT DISTRICT, ET AL., v. MONSANTO COMPANY,
ET AL., C.A. No. 3:15-00578
Eastern District of Washington
CITY OF SPOKANE v. MONSANTO COMPANY, ET AL., C.A. No. 2:15-00201
Western District of Washington
CITY OF SEATTLE v. MONSANTO COMPANY, ET AL., C.A. No. 2:16-00107