Jane Doe v. Xytex Corporation et al

Filing 17

ORDER DENYING TRANSFER re: pldg. (9 in CAC/2:16-cv-06621, 9 in CAN/3:16-cv-02935, 9 in FLM/8:16-cv-02091, 9 in GAN/1:16-cv-01453, 10 in GAN/1:16-cv-01729, 16 in MDL No. 2751, 9 in OHN/1:16 -cv-01692), ( 1 in MDL No. 2751) The motion to transfer, pursuant to 28 U.S.C. 1407, is DENIEDSigned by Judge Sarah S. Vance, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 12/7/2016. Associated Cases: MDL No. 2751, CAC/2:16-cv-06621, CAN/3:16-cv-02935, FLM/8:16-cv-02091, GAN/1:16-cv-01453, GAN/1:16-cv-01729, OHN/1:16-cv-01692 (LAH)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: XYTEX CORPORATION SPERM DONOR
PRODUCTS LIABILITY LITIGATION

MDL No. 2751

ORDER DENYING TRANSFER

Before the Panel: Defendant Xytex Corporation (Xytex) moves under 28 U.S.C. § 1407 to
centralize pretrial proceedings in this litigation in the Northern District of Georgia or, alternatively,
in the Northern District of California. This litigation consists of six actions—two actions pending
in the Northern District of Georgia and one action each pending in the Central and Northern Districts
of California, the Middle District of Florida, and the Northern District of Ohio—as listed on
Schedule A. Plaintiffs in all the actions oppose centralization. Certain of the plaintiffs alternatively
suggest that, if the Panel centralizes this litigation, it should select the Central District of California,
the Northern District of California, or the Middle District of Florida 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 the litigation. Where only a minimal number of actions are involved, the proponent of
centralization bears a heavier burden to demonstrate that centralization is appropriate. See In re
Transocean Ltd. Sec. Litig. (No. II), 753 F. Supp. 2d 1373, 1374 (J.P.M.L. 2010). Xytex has not met
that burden here.
There is no dispute that these actions share some common factual questions arising from
allegations that Xytex, a Georgia-based sperm bank, failed to properly screen one of its donors
(Donor #9623) and misrepresented that donor’s qualities and characteristics to plaintiffs, each of
whom conceived children through artificial insemination using Donor #9623’s sperm. Plaintiffs
allege that they subsequently learned that Donor #9623 was a convicted felon, had not obtained
various educational degrees as represented by Xytex, and has been diagnosed with potentially
heritable mental health disorders. The common factual issues presented in these actions,
though—such as the intake and screening procedures used with Donor #9623—are not particularly
complex. Nor will these common factual questions predominate over the plaintiff-specific factual
and legal questions presented in these actions. For instance, each action may require examination
of different representations made regarding Donor #9623 at different times and will involve differing
state law claims, limiting the potential efficiency and convenience benefits to be gained through
centralization.
Furthermore, there are only six actions pending in this litigation (two of which are pending
in the same district before the same judge and were filed by the same counsel). It appears unlikely
that many more, if any, related actions will be filed given the limited pool of potential plaintiffs and

-2the sensitive nature of these actions. Plaintiffs in these actions are represented by only three groups
of plaintiffs’ counsel. At oral argument, counsel for plaintiffs stated their willingness to coordinate
with one another and Xytex to avoid duplicative discovery. In these circumstances, informal
cooperation among the relatively few involved attorneys and coordination among the involved courts
are eminently feasible and will be sufficient to minimize any potential for duplicative discovery or
inconsistent pretrial rulings. 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
Marjorie O. Rendell
Lewis A. Kaplan
R. David Proctor

Charles R. Breyer
Ellen Segal Huvelle
Catherine D. Perry

IN RE: XYTEX CORPORATION SPERM DONOR
PRODUCTS LIABILITY LITIGATION

MDL No. 2751

SCHEDULE A

Central District of California
DOE v. XYTEX CORPORATION, ET AL., C.A. No. 2:16-06621
Northern District of California
DOE 1, ET AL. v. XYTEX CORPORATION, ET AL., C.A. No. 3:16-02935
Middle District of Florida
DOE v. XYTEX CORPORATION, ET AL., C.A. No. 8:16-02091
Northern District of Georgia
DOE 1, ET AL. v. XYTEX CORPORATION, ET AL., C.A. No. 1:16-01453
DOE v. XYTEX CORPORATION, ET AL., C.A. No. 1:16-01729
Northern District of Ohio
DOE, ET AL. v. XYTEX CORPORATION, ET AL., C.A. No. 1:16-01692