Peralta v. Worthington Industries Incorporated et al

Filing 16

ORDER DENYING TRANSFER re: pldg. (11 in AZ/2:17-cv-03195, 35 in CAC/2:16-cv-00848, 50 in MDL No. 2823, 26 in SC/2:17-cv-01358), ( 1 in MDL No. 2823) The motion to transfer, pursuant to 28 U.S.C. 1407, is DENIEDSigned by Judge Sarah S. Vance, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 4/5/2018. Associated Cases: MDL No. 2823, AZ/2:17-cv-03195, CAC/2:16-cv-00848, ILN/1:16-cv-07548, SC/2:17-cv-01358 (TLL)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: BERNZOMATIC AND WORTHINGTON
BRANDED HANDHELD TORCH PRODUCTS
LIABILITY LITIGATION

MDL No. 2823

ORDER DENYING TRANSFER

Before the Panel:* Plaintiffs in two actions pending in the District of Arizona (Peralta) and
the Northern District of Illinois (Bailey) move under 28 U.S.C. § 1407 to centralize this litigation
in the Central District of California. The litigation consists of four actions pending in four districts,
as listed on Schedule A. Plaintiffs in the Central District of California action (Marmont) oppose the
motion. All responding defendants1 oppose centralization.
After considering the argument of counsel, we conclude that Section 1407 centralization of
this litigation is not necessary. The actions here involve injuries arising from the use of handheld
torches that were attached to small gas cylinders. But the common defects alleged by moving
plaintiffs – failure of a safety feature known as a “fracture groove” where the gas cylinder connects
to the torch and allegedly defectively thin metal cylinders – do not appear to be at issue in the two
cases that were not brought by these plaintiffs. Marmont involves failure of a pressure relief valve
due to corrosion, and the District of South Carolina Lofton plaintiff alleges that his injuries were due
to a cylinder fracture caused by phosphorus embrittlement (an issue not present in cases involving
propane cylinders because phosphorus is not used in the braze paste in these tanks). More broadly,
the defendants, products2 and circumstances of each plaintiff’s injuries arising from use of a
handheld torch vary considerably from action to action, and movants offer few concrete examples
of duplicative discovery.

*

Judge Lewis A. Kaplan did not participate in this decision.

1

Western Industries, Inc.; Victor Technologies International, Inc.; Schrader-Bridgeport
International, Inc., and Sensata Technologies, Inc.; Bernzomatic Corp., Irwin Industrial Tool Co.,
Newell Rubbermaid, Inc., and Newell Brands Inc.; Worthington Cylinder Corp., Worthington
Cylinders Wisconsin LLC, Worthington Industries Inc., and Lowe’s Companies, Inc.

2

The cylinders are different in their physical structure (non-refillable tall (NRT) versus
non-refillable short (NRS)), the materials used to braze component parts together (copper only versus
a mixture of nickel, copper, and phosphorous), and the gas they contain (Propane versus MAPP).
The torches (TS8000, TS6000, TS4000, and the UL2317 Brass Pencil) are, likewise, different in
their physical structure, design, and intended use.

-2In litigation such as this, where only a few 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). Moving plaintiffs
have failed to do so here. This litigation involves only four actions filed in four districts between
February 2016 and September 2017. Two of these actions are procedurally advanced. Discovery
is largely concluded in the Central District of California action, in which summary judgment motions
are under advisement, and the case is nearly ready for trial. Further, the Northern District of Illinois
action is substantially progressed and nearing the close of discovery. We see few pretrial efficiencies
to be gained by centralizing these actions. Informal coordination of discovery and pretrial motions,
if it is even needed, is preferable to centralization in these circumstances. See, e.g., In re: Eli Lilly
& Co. (Cephalexin Monohydrate) Patent Litig., 446 F. Supp. 242, 244 (J.P.M.L. 1978); MANUAL
FOR COMPLEX LITIGATION, Fourth, § 20.14 (2004).
IT IS THEREFORE ORDERED that the motion for Section 1407 centralization of the
actions listed on Schedule A 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: BERNZOMATIC AND WORTHINGTON
BRANDED HANDHELD TORCH PRODUCTS
LIABILITY LITIGATION

MDL No. 2823

SCHEDULE A

District of Arizona
PERALTA v. WORTHINGTON INDUSTRIES INCORPORATED, ET AL.,
C.A. No. 2:17!03195
Central District of California
MARMONT, ET AL. v. BERNZOMATIC CORP., ET AL., C.A. No. 2:16!00848
Northern District of Illinois
BAILEY v. BERNZOMATIC, ET AL., C.A. No. 1:16!07548
District of South Carolina
LOFTON v. IRWIN INDUSTRIAL TOOL COMPANY, ET AL., C.A. No. 2:17-01358