Prather et al v. Townsend Farms Incorporated et al

Filing 25

ORDER DENYING TRANSFER re: pldg. (18 in AZ/4:13-cv-01179, 18 in CAC/8:13-cv-01292, 18 in CO/1:13-cv-02423, 18 in HI/1:13-cv-00408, 18 in ID/1:13-cv-00388, 24 in MDL No. 2537, 18 in NM/1:13 -cv-00959, 18 in NV/2:13-cv-01729, 21 in OR/3:13-cv-01759, 21 in WAW/2:13-cv-01821), ( 1 in MDL No. 2537) The motion to transfer, pursuant to 28 U.S.C. 1407, is DENIEDSigned by Judge Jo hn G. Heyburn II, Chairman, PANEL ON MULTIDISTRICT LITIGATION, on 6/4/2014. Associated Cases: MDL No. 2537, AZ/4:13-cv-01179, CAC/8:13-cv-01292, CO/1:13-cv-02423, HI/1:13-cv-00408, ID/1:13-cv-00388, NM/1:13-cv-00959, NV/2:13-cv-01729, OR/3:13-cv-01759, WAW/2:13-cv-01821 (DLS)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: TOWNSEND FARMS ORGANIC ANTI-OXIDANT
BLEND PRODUCTS LIABILITY LITIGATION

MDL No. 2537

ORDER DENYING TRANSFER

Before the Panel: Pursuant to 28 U.S.C. § 1407, plaintiffs in all actions and three of four
defendants (Townsend Farms, Inc., Purely Pomegranate, Inc., and Fallon Trading Co., Inc.) seek
centralization of this litigation involving the contamination of a frozen berry and pomegranate seed mix
with the Hepatitis A virus. The litigation encompasses the nine actions pending in nine districts, as listed
on Schedule A.
Plaintiffs in all actions and defendant Fallon Trading initially took no position on selection of the
transferee forum; plaintiffs later suggested the Central District of California, and Fallon Trading later
suggested the District of Oregon or the Western District of Washington. Defendant Townsend Farms
seeks centralization in the District of Oregon. Defendant Purely Pomegranate seeks centralization in the
Western District of Washington. Defendant United Juice Co. initially supported centralization in the
Southern District of California, where no action is pending, but now supports centralization in the
Central District of California.
After considering all argument of counsel, we will deny transfer. These actions do involve
common questions of fact regarding uncompensated economic losses related to the May 2013 recall of
Townsend Farms Organic Anti-Oxidant Blend frozen berry and pomegranate mix due to concerns of
potential contamination with the Hepatitis A Virus (HAV). The plaintiffs propose highly similar putative
classes comprised of those persons who consumed the product or were close to someone who had and
who (1) were required, for public health and personal safety reasons, to obtain a vaccination against
HAV, (2) received a prophylactic dose of immune globulin, due to their exposure to the product, and/or
(3) underwent serology or other diagnostic testing procedures to determine whether such exposure had
resulted in infection by HAV. The parties explained at oral argument that a substantial portion of the
putative class members received their testing and other treatment at no charge from Costco warehouses,
where the product was sold. This factual core appears largely undisputed, as do the controversy’s
underlying facts (other than those going to the damages of the putative class members).
In these circumstances, we are unconvinced that Section 1407 centralization is necessary either
to assure the convenience of the parties and witnesses or for the just and efficient conduct of this
litigation. Several factors weigh in our decision to deny centralization. We are not convinced that
discovery in this matter will be exceedingly complex or generate significant discovery disputes. Plaintiffs
are represented by common counsel, and counsel for defendants appear to have a good working
relationship. Accordingly, informal cooperation among the involved attorneys and coordination between

-2the involved courts seems preferable to formal centralization. See, e.g., In re: Fresh Dairy Prods.
Antitrust Litig., 856 F. Supp. 2d 1344, 1345 (J.P.M.L. 2012). As we have observed in similar
circumstances, “[n]otices of deposition can be filed in all related actions; the parties can stipulate that
any discovery relevant to more than one action can be used in all those actions; or the involved courts
may direct the parties to coordinate their pretrial activities.” In re: Trans Union LLC Fair Credit
Reporting Act (FCRA) Litig., 923 F. Supp. 2d 1374, 1375 (J.P.M.L. 2013). We encourage the parties
to employ various alternatives to transfer which may minimize the potential for duplicative discovery and
inconsistent pretrial rulings. See, e.g., In re: Yellow Brass Plumbing Component Prods. Liability Litig.,
844 F. Supp. 2d 1377, 1378 (J.P.M.L. 2012); see also MANUAL FOR COMPLEX LITIGATION, FOURTH,
§ 20.14 (2004).
IT IS THEREFORE ORDERED that the motion for centralization, pursuant to 28 U.S.C.
§ 1407, of the actions listed on Schedule A is denied.

PANEL ON MULTIDISTRICT LITIGATION

_________________________________________
John G. Heyburn II
Chairman
Marjorie O. Rendell
Lewis A. Kaplan
Ellen Segal Huvelle

Charles R. Breyer
Sarah S. Vance
R. David Proctor

IN RE: TOWNSEND FARMS ORGANIC ANTI-OXIDANT
BLEND PRODUCTS LIABILITY LITIGATION

MDL No. 2537

SCHEDULE A

District of Arizona
PRATHER, ET AL. v. TOWNSEND FARMS INCORPORATED, ET AL.,
C.A. No. 4:13-01179
Central District of California
JACOB PETERSEN v. TOWNSEND FARMS, INC., ET AL., C.A. No. 8:13-01292
District of Colorado
FABER v. TOWNSEND FARMS, INC., ET AL., C.A. No. 1:13-02423
District of Hawaii
CALDWELL, ET AL. v. TOWNSEND FARMS, INC., ET AL., C.A. No. 1:13-00408
District of Idaho
BERNDT, ET AL. v. TOWNSEND FARMS, INC., ET AL., C.A. No. 1:13-00388
District of Nevada
FIORE v. TOWNSEND FARMS, INC., ET AL., C.A. No. 2:13-01729
District of New Mexico
MCCONAGHY v. TOWNSEND FARMS, INC., ET AL., C.A. No. 1:13-00959
District of Oregon
STRAKA v. TOWNSEND FARMS, INC., ET AL., C.A. No. 3:13-01759
Western District of Washington
SEWARDS v. TOWNSEND FARMS, INC., ET AL., C.A. No. 2:13-01821