As of July 28, 2022, when the Judicial Panel on Multidistrict Litigation heard argument, there were 33 cases filed in federal courts across the nation alleging causes of action ranging from negligence, products liability, breach of warranty, and unjust enrichment related to the contamination of infant formula at Abbott Laboratories’ manufacturing facility in Sturgis, Michigan.
Hearing for Consolidation
This hearing was several months in the making. On April 14, 2022, a Motion to Transfer Related Cases for Consolidated Pretrial Proceedings Pursuant to 28 U.S.C. § 1407 was filed before the United States Judicial Panel on Multidistrict Litigation. 28 U.S.C. § 1407 provides the authority for the JPML to consolidate cases if they contain similar questions of fact, it would be convenient for the parties and witnesses and would promote the just and efficient conduct of the actions.
The Motion and its supporting brief argued that many cases were filed involving the same factual circumstances: the infant formula manufactured, sold, and distributed by Abbott have been recalled due to bacterial contamination and caused harm to the plaintiffs. All parties, including the defendants, agreed that consolidation was appropriate and that the cases met the required factors pursuant to the statute. The most appropriate venue is where counsel disagreed. The JPML has the responsibility to hear argument and decide if consolidation is appropriate and which venue is most suitable.
Arguments for Venue:
Southern District of Florida
Three plaintiffs’ counsel presented to the panel and advocated for three separate locales; Southern District of Florida, Eastern District of Michigan, and Northern District of Illinois. The first case was filed in the Southern District of Florida under Judge Beth Bloom, an appointee of President Barack Obama in 2014. The JPML has often awarded a Multidistrict Litigation, or MDL, to the judge who handled the first case, as it is likely that the case has progressed the furthest and may have information already exposed that may benefit the other cases. In this case, Judge Bloom entered a Scheduling Order entered which provided a May 2023 trial date. Judge Anuraag Singhal, a President Donald Trump 2019 appointee, also presides over a case in the Southern District of Florida. He currently is presiding over an MDL regarding Johnson & Johnson Aerosol Sunscreen, which may deter the panel as they will also consider the workload of the proposed judge.
Eastern District of Michigan
The Eastern District of Michigan is the venue where the contamination occurred –Sturgis, Michigan. Judge Judith Levy is presiding over the cases filed there. She was appointed by President Obama in 2014 and does not currently preside over any other MDLs. Because the defense’s facility is there, it is likely that depositions of witnesses will need to occur there and, thus, is a convenient forum.
Northern District of Illinois
Finally, Marjorie Levine of Romano Law Group argued that the Northern District of Illinois is the most appropriate venue, as Judge Matthew Kennelly is presiding over Romano Law Group’s case in the Northern District. As an appointee of President Bill Clinton in 1999, Judge Kennelly is the most experienced jurist that was advocated for at the hearing. He is bringing a current MDL to a close and is known for his swift handling of cases, among other things. The Northern District of Illinois is the location of the defendant’s headquarters and is likely to be the location of many important documents and witnesses that will be essential to the cases moving forward. Additionally, the defendants agreed that the location was appropriate. They disagreed, though, with the selection of judge.
Disagreements over Judge
There are 11 other cases filed in the N. D. of Illinois that are in front of Judge John Kness. Judge Kness was appointed by President Trump in 2020 and advised before the appointment that his most significant case while in private practice was representing Abbott Laboratories in a case involving a manufacturing company. Counsel for Abbott, James Hurst of Kirkland & Ellis, argued that precedent states that a judge does not need to be recused from a case if he worked for a firm currently handling a case over two years prior.
28 U.S.C. § 455 governs the disqualification of any judge where impartiality might reasonably be questioned. Judge Madeline Cox Arleo of the United States District Court of New Jersey and a member of the Judicial Panel questioned the appearance of impropriety. She specified that Judge Kness did not just represent Abbott, but listed it as his most significant case and could deter plaintiffs from filing into a consolidated action due to the mere appearance of bias. Abbott continued to advise the Panel that the representation was over two years prior and should abide by precedent.
The JPML thanked all parties for argument. An order is expected within the next few weeks.
Romano Law Group is leading the way
Authored by Marjorie Levine
