Case 0:08-md-01916-KAM Document 2593 Entered on FLSD Docket 10/20/2019 Page 1 of 16

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-md-01916-KAM

IN RE: CHIQUITA BRANDS

INTERNATIONAL, INC. ALIEN
TORTS STATUTE AND
SHAREHOLDER DERIVATIVE
LITIGATION
__________________________________________/

This Order relates to:

ATS ACTIONS
__________________________________________/

08-80465-CIV-MARRA (D.C. Action) (Does 1-144)

10-80652-CIV-MARRA (D.C. Action) (Does 1-976)
11-80404-CIV-MARRA (D.C. Action) (Does 1-677)

__________________________________________/

Plaintiffs' Reply to Renewed Motion for Suggestion of Remand [DE 2560]

Paul Wolf, DC Bar 480285

Attorney for Plaintiffs
P.O. Box 21840
Washington, D.C. 20009
(202) 431-6986
paulwolf@yahoo.com

October 20, 2019

Case 0:08-md-01916-KAM Document 2593 Entered on FLSD Docket 10/20/2019 Page 2 of 16

TABLE OF CONTENTS

TABLE OF CONTENTS ...................................................................................................... i

TABLE OF AUTHORITIES ................................................................................................ ii

ARGUMENT ........................................................................................................................ 1

A. The efficient resolution of Plaintiffs’ cases favors remand. .................................... 1

1. The D.C. Circuit should decide procedural and evidentiary issues

for cases going to trial there. .......................................................................... 2

a. In re Bridgestone/Firestone supports Plaintiffs' argument that

remand would facilitate the evaluation of Plaintiffs' claims. ........... 3

b. Instead of exercising broad discretion, the Court should

follow the jurisprudence of the JPML. .............................................. 4

2. Discovery on common questions of fact has concluded. ............................. 5

a. In re Maxim supports Plaintiffs' argument that remand is

appropriate after dispositive motions have been decided. ............... 7

3. In re Patenaude shows it was the intent of Congress that discovery

in individual cases in MDL's be conducted in the transferor districts. ....... 8

B. The just resolution of Plaintiffs’ cases favors remand. ............................................. 9

1. The 11th Circuit's line of products liability cases has no application

to experiential experts, such as law enforcement officers. ........................... 9

2. It would be unjust to determine Plaintiffs’ cases based on

the non-Wolf Plaintiffs generic experts. ........................................................ 10

CONCLUSION ....................................................................................................................... 10

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TABLE OF AUTHORITIES
CASES

Anderson v. Liberty Lobby, 477 U.S. 242 (1986) ............................................................. 3

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) .......................... 3, 5, 10

Eckstein v. Balcor Film Investors, 8 F.3d 1121 (7th Cir. 1993) ...................................... 1

Ferens v. John Deere Co., 494 U.S. 516 (1990) ................................................................. 1

FMC Corp. v. Glauster Eng. Co., 830 F.2d 770 (7th Cir. 1987) ....................................... 2

Gelboim v. Bank of Am. Corp., 574 U.S. 405 (2015) ........................................................ 3

Hendrix v. Evenflo Co., 609 F.3d 1183 (11th Cir. 2010) ................................................... 9

In re Activated Carbon-Based Hunting Clothing Marketing and

Sales Practices Litigation, 840 F.Supp.2d 1193 (D.Minn, 2012) ........................................ 3

In re Air Crash Disaster at Tenerife, 461 F.Supp. 671 (JPML 1978) .................................. 6

In re Baseball Bat Antitrust Litig., 112 F.Supp.2d 1175 (JPML 2000) ............................... 7

In re Boise Cascade Sec. Litig., 364 F.Supp. 459 (JPML 1973) .......................................... 7

In re Brand-Name Prescription Drugs Antitrust Litigation,

264 F.Supp.2d 1372 (JPML 2003) ....................................................................................... 5

In re Bridgestone/Firestone, Inc., Tires Prod. Liab. Litig.,

288 F.3d 1012 (7th CIr. 2002) .............................................................................................. 7

In re Collins, 233 F.3d 809, 810-812 (3rd Cir. 2000) ........................................................... 4

In re Eastern Airlines Inc., Engine Failure, Miami Int'l Airport on May 5, 1983, Litig.,
629 F.Supp. 307 (SD Fla. 1986) .............................................................................................. 1

In re EDNY Cathode Ray Tube Antitrust Cases,

2017 US Dist LEXIS 161119 (EDNY 2017) .......................................................................... 2

In re Equity Funding Corp. of Am. Sec. Litig., 385 F.Supp. 1262 (JPML 1974) ............... 4

In re Fedex Ground Package System, Inc. Employment Practicies Litigation,

2010 WL 3239330 (N.D. Ind. 2010) ...................................................................................... 6

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In re Food Lion, Inc., Fair Labor Standards Act “Effective Scheduling” Litigation,
73 F.3d 528 (4th Cir. 1996) .................................................................................................... 2

In re Fosamax (Alendronate Sodium) Products Liability Litig.,

852 F.3d 268 (3rd Cir. 2017) ................................................................................................. 5

In re IBM, 302 F.Supp. 796 (JPML 1969) ........................................................................... 4

In re IBM Peripheral EDP Devices Antitrust Litig.,

407 F.Supp. 254 (JPML 1976) ............................................................................................. 5

In re Ins. Brokerage Antitrust Litig., 2009 WL 1874085 (D.N.J. 2009) ............................ 7

In re King Resources Co. Sec. Litig., 458 F. Supp. 220 (JPML 1978) ................................ 7

In re Korean Air Lines Disaster of Sept. 1, 1983,

829 F.2d 1171 (D.C. Cir. 1987) ............................................................................................ 2

In re Maxim Integrated Prods., Inc., 2015 WL 1757779 (W.D. Pa. 2015) ........................ 6-8

In re Merrill Lynch Auction Rate Sec. Litig.,

2010 WL 2541227, (S.D.N.Y. 2010) ................................................................................... 4

In re Multidistrict Civil Antitrust Actions Involving Antibiotic Drugs,

309 F.Supp. 155 (JPML 1970) ............................................................................................. 4

In re Patenaude, 210 F.3d 135 (3d Cir. 2000) ..................................................................... 4, 8-9

In re Plumbing Fixture Cases, 298 F. Supp. 484 (JPML 1968) ........................................... 5, 9

In re Silicone Gel Breast Implants Products Liability Litigation,

887 F.Supp. 1463 (N.D. Ala. 1995) ....................................................................................... 1

In re Sinking of the Motor Vessel Ukola, 462 F.Supp. 385 (JPML 1978) .......................... 4

In re State Street Bank and Trust C. Fixed Income Funds Investment Litig.,
No. 08-5440, 2011 WL 1046162 (SDNY Mar 22, 2012) ...................................................... 5

In re Tri-State Water Rights Litigation, 481 F.Supp.2d 1351 (JPML 2007) ....................... 4

In re U.S. Office Products Co. Securities Litigation,

251 F.Supp.2d 77 (D.D.C. 2003) ............................................................................................ 1

Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach,

523 U.S. 26 (1998) ............................................................................................................... 3, 5

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McClain v. Metabolife International, Inc., 401 F.3d 1233 (11th Cir. 2005) ......................... 9

Menowitz v. Brown, 991 F.2d 36 (2d Cir. 1993) .................................................................. 2

Moore v. Valder, 65 F.3d 189 (D.C. Cir. 1995) .................................................................... 1

Van Dusen v. Barrack, 376 U.S. 612 (1964) ........................................................................ 1, 2

STATUTES

28 U.S.C. § 1404 .................................................................................................................. 1, 10

28 U.S.C. § 1407 ............................................................................................................. passim

CONGRESSIONAL HEARINGS

Multidistrict Litigation: Hearings Before the Subcommittee on Improvements

in Judicial Machinery of the Committee of the Judiciary, 89th Cong. 56 (1966);
H.R. Rep. No. 1130, 1968 U.S.C.C.A.N. 1901. ................................................................. 8-10

RULES

JPML Rule 10.1(a) ............................................................................................................... 4

OTHER

Erica W. Rutner & Lara Bueso Bach, “Indispensable” Methods

for Admitting General Causation Experts in the Eleventh Circuit,
69 University of Miami Law Review 999. ............................................................................ 9

Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure, 3d ed. (1995) ........................................................................ 1

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ARGUMENT

28 U.S.C. §1407 authorizes the Judicial Panel on Multidistrict Litigation ("JPML") to

transfer civil actions “involving one or more common questions of fact ... to any district for

coordinated or consolidated pretrial proceedings” in order to “promote the just and efficient

conduct of such actions.” §1407(a). It would be neither efficient nor just for the Plaintiffs to

remain in this Court while the 11th Circuit decides the appeal.

A. The efficient resolution of Plaintiffs’ cases favors remand.

The Defendant warns of the "risk of inconsistent decisions between the District of

Columbia and this Court," DE 2580 (hereinafter "Opposition") at 5, but that's just the point.

None of these cases will go to trial in the Southern District of Florida, and the trial court judge

must follow the law of the D.C. Circuit.1 "The federal courts across the country owe respect to

each other's efforts and should strive to avoid conflicts, but each has an obligation to engage

independently in reasoned analysis. Binding precedent for all is set only by the Supreme Court,

and for the district courts within a circuit, only by the court of appeals for that circuit." In re

Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171, 1173 (D.C.Cir. 1987); Moore v.

Valder, 65 F.3d 189, 195 n. 9 (D.C. Cir. 1995) (district courts must apply the federal law of their

circuit, requiring reconsideration of interlocutory orders decided in circuit with contrary law,

because stare decisis supersedes law of the case doctrine); Menowitz v. Brown, 991 F.2d 36, 40

(2nd Cir. 1993) (“[T]he federal circuit courts are under duties to arrive at their own

1
In diversity of citizenship cases, the general rule is that the transferee court must apply the law the tranferor court
would have applied. In Van Dusen v. Barrack, 376 U.S. 612, 639 (1964) the Supreme Court held that a transfer
under Section 1404(a) should result in "a change of courtrooms" and not a change in governing law. Van Dusen
applies to transfers under § 1407(a) in diversity of citizenship cases as well. See In re U.S. Office Products Co.
Securities Litigation, 251 F.Supp.2d 77, 90 (D.D.C. 2003); In re Silicone Gel Breast Implants Products Liability
Litigation, 887 F.Supp. 1463, 1465 (N.D. Ala. 1995); Wright & Miller, Federal Practice & Procedure § 3867 n. 30
(collecting cases in other circuits). Put another way, "when the law of the United States is geographically non-
uniform, a transferee court should use the rule of the transferor forum in order to implement the central conclusion
of Van Dusen and Ferens." Eckstein v. Balcor Film Investors, 8 F.3d 1121, 1127 (7th Cir. 1993); In re Eastern
Airlines Inc., Engine Failure, Miami Int'l Airport on May 5, 1983, Litig., 629 F.Supp. 307, 315 (SD Fla. 1986).

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determination of the merits of federal questions presented to them.”). Unlike in the first

interlocutory appeal, this appeal doesn't involve a novel question about the Alien Tort Claims

Act, but the basic procedural and evidentiary standards used by district courts. Chiquita

misunderstands the point,2 which is that although this Court must rule based on 11th Circuit

precedent, this Court is not the trial court and should leave certain decisions for the trial court.

1. The D.C. Circuit should decide procedural and evidentiary issues for cases
going to trial there.

The issues on appeal are the evidentiary showing required under Anderson v. Liberty

Lobby, the related issue of whether the plaintiffs must specifically identify the killers, and the

application of the Daubert test to an experiential, or law enforcement expert. These are

procedural or evidentiary issues that the D.C. Circuit should decide for cases going to trial there.

Plaintiffs' Motion for Partial Summary Judgment on Negligence Per Se, DE 2229-1, was also

argued based on D.C. law, and wasn't joined by any other plaintiffs arguing 11th Circuit or some

other law. See City of Willacoochee v. Baldridge, 556 F.Supp. 551 (S.D. Ga. 1983) (District

Court ordered remand of one action after the plaintiffs in it changed their legal theory of the case,

despite common factual background of all transferred actions); In re Activated Carbon-Based

Hunting Clothing Marketing and Sales Practices Litigation, 840 F.Supp.2d 1193, 1199 (D.Minn,

2012) ("the transferor courts, each of which is familiar with the state law of their respective

jurisdictions, are in a better position to assess" the claims).

2
The Defendant goes so far as to argue that the transferee court should decide all legal issues in the case, Opposition
at 6, citing In re Food Lion, Inc., Fair Labor Standards Act “Effective Scheduling” Litigation, 73 F.3d 528 (4th Cir.
1996). That is not what happened in that case. Food Lion was a class action, where "opt-in" plaintiffs were made
part of the case by returning a "consent form." There is no indication, from this decision at least, that the defendants
conducted any other discovery of the class members. Half the cases were dismissed in summary judgment, and the
other half remanded. The Defendant also relies on two contrary decisions in other circuits, citing In re EDNY
Cathode Ray Tube Antitrust Cases, 2017 US Dist LEXIS 161119 (EDNY 2017) and FMC Corp. v. Glauster Eng.
Co., 830 F.2d 770, 772 (7th Cir. 1987). Opposition at 7. EDNY was another class action in which it's not clear
whether discovery was taken of the class members. FMC misses the point, because we concede that the 11th Circuit
has jurisdiction over this Court's Orders. Our argument is that the trial court should make certain decisions, which
are governed by the law of the trial court's circuit.

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It's one thing for this Court to apply the law of another circuit, and entirely different for

the 11th Circuit to do this. Courts of appeal decide the law for their own jurisdictions, not for

other jurisdictions. 3 The Court's Order of September 5, 2019, DE 2551, is appealable to the 11th

Circuit because it's an appeal of an Order of this Court. But this applies only to Plaintiffs Ludy

Rivas Borja and Doe 378.4

a. In re Bridgestone/Firestone supports Plaintiffs' argument that

remand would facilitate the evaluation of Plaintiffs' claims.

In In re Bridgestone/Firestone, Inc., Tires Prod. Liab. Litig., 288 F.3d 1012, 1019-1020

(7th CIr. 2002), plaintiffs from all 50 states had filed claims in Indiana, which applies the lex loci

delecti test. The Seventh Circuit noted that although greater efficiency would be achieved by

applying the same uniform law, a single suit is an all or nothing affair, and a decentralized

process involving multiple trials, different juries, and different standards of liability in different

jurisdictions would yield the information needed for an accurate evaluation of the mass tort

claims. "Tempting as it is to alter doctrine in order to facilitate class treatment, judges must

3
Counsel plans to file a motion in the 11th Circuit to certify the issues to the D.C. Circuit. Plaintiffs will argue that
the procedural law of the D.C. Circuit law applies, that the D.C. choice of laws rules require the application of either
D.C. or Ohio tort law, the theory of negligence per se in D.C. tort law, and that their cases are supported by different
kinds of expert witnesses than those used by the Florida plaintiffs.
4
In our Response, and Supplemental Response to the Court's Order, DE 2555, on how the case should proceed
following summary judgment of the bellwether cases, we gave conflicting arguments about whether Doe 378 and
Ludy Rivas Borja's appeals should be heard by 11th or D.C. Circuits. DE 2556, DE 2558. As in In re Korean Air
Lines Disaster of Sept. 1, 1983, 829 F.2d 1171 (D.C.Cir. 1987), the transferee court should apply the law of its own
circuit to these two cases. In addition, in briefing Gelboim v. Bank of Am. Corp., 574 U.S. 405 (2015)(Ginsberg),
Plaintiffs argued that only the dozen bellwether cases are involved in that Order, and the Court isn't divested of
jurisdiction over the non-bellwether cases, including the Court's jurisdiction to remand them. DE 2567. Like the
plaintiff in Gelboim, the Order removed the bellwether plaintiffs from the MDL proceedings entirely. "Cases
consolidated for MDL pretrial proceedings ordinarily retain their separate identities, so an order disposing of one of
the discrete cases in its entirety should qualify under §1291 as an appealable final decision. Section 1407 refers to
individual “actions” which may be transferred to a single district court, not to any monolithic multidistrict “action”
created by transfer." Id., quoting Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U. S. 26, 37 (1998)
(§1407 does not “imbu[e] transferred actions with some new and distinctive . . . character”). Finally, JPML Rule
10.1(a) requires the Court to transmit a copy of its Order, DE 2251, to the Clerk of the Panel. It says: "Where the
tranferee district court terminates an action by valid order, including but not limited to summary judgment,
judgement of dismissal and judgment upon stipulation, the transferee district court clerk shall transmit a copy of that
order to the Clerk of the Panel. The terminated action shall not be remanded to the transferor court and the transferee
court shall retain the original files and records unless the transferee judge or the Panel directs otherwise."

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resist so that all parties' legal rights may be respected." 288 F.3d at 1020.5 Therefore the In re

Bridgestone case, often cited by the Defendant, supports the Plaintiffs Motion for Remand for

two different reasons. First, the applicable law is different, and should be determined by the

court of appeals of the trial court. Second, the point in In re Bridgestone was that a process

involving multiple courts and different standards of liability in "would yield the information

needed for an accurate evaluation of the mass tort claims" whereas a centralized process would

not. Id.

b. Instead of exercising broad discretion, the Court should follow the

jurisprudence of the JPML.

Chiquita argues that the court should exercise its "broad discretion" to deny remand,

since Chiquita hasn't taken any discovery for the vast majority of the cases. Opposition at 2.

Although the JPML follows this Court's recommendation, the power to make the decision isn't

the same as having broad discretion. Later, the Defendant admits the actual legal standard,

which is that this Court should apply the same standards as used by the JPML. Id. at 3, relying

on In re Bridgestone/Firestone, Inc., Tires Prod. Liab. Litig., 288 F.3d 1012 (7th Cir. 2002).

The Court's discretion to suggest remand generally turns on the question of whether the

case will benefit from further coordinated proceedings as part of the MDL. In re Merrill Lynch

Auction Rate Sec. Litig., No. 09 MD 2030 (LAP), 2010 WL 2541227, at *2 (S.D.N.Y. June 11,

5
The Court may postpone discovery on any issue that is not common to all the transferred actions until after remand
of the case to their transferor districts, In re IBM, 302 F.Supp. 796 (JPML 1969), or remand some types of claims,
and retain others. The last phrase of § 1407(a) provides that "the panel may separate any claim, cross-claim,
counter-claim, or third-party claim and remand any of such claims before the remainder of the action is remanded"
to the transferor court. See In re Tri-State Water Rights Litigation, 481 F.Supp.2d 1351, 1353 (JPML 2007) For
example, in asbestos litigation, the transferee court retained claims for punitive damages, while remanding
individual cases for trial, since punitive damages claims could have exhausted the pool of funds available to pay
compensatory damages to other plaintiffs. In re Collins, 233 F.3d 809, 810-812 (3rd Cir. 2000). The Panel
sometimes severs claims with little overlap to others in the MDL before the original tag-along transfer. See In re
Sinking of the Motor Vessel Ukola, 462 F.Supp. 385, 388 (JPML 1978); In re Equity Funding Corp. of Am. Sec.
Litig., 385 F.Supp. 1262, 1263 (JPML 1974); In re Boise Cascade Sec. Litig., 364 F.Supp. 459, 461 (JPML 1973);
In re Multidistrict Civil Antitrust Actions Involving Antibiotic Drugs, 309 F.Supp. 155, 156 (JPML 1970).

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2010). A determination that coordinated or consolidated pretrial proceedings have concluded,

and that remand is therefore appropriate, is necessarily case-specific. In Re: Joann Patenaude, et

al.petitioners, 210 F.3d 135 (3d Cir. 2000); 28 U.S.C. § 1407(a). The statute imposes two

limitations on the kinds of proceedings that the transferee court may conduct: they must be (1)

coordinated or consolidated and (2) pretrial. See Lexecon Inc. v. Milberg Weiss Bershad Hynes

& Lerach, 523 U.S. 26, 33-34 (1998). Moreover, the statute "obligates the Panel to remand any

pending case to its originating court when, at the latest, those pretrial proceedings have run their

course," which obligation is "impervious to judicial discretion." Id. at 34-35.6 The Court doesn't

have the kind of unfettered discretion suggested by the Defendant. It should apply the standards

set in JPML decisions, and find there is no further benefit to coordinated proceedings. In this

case, the JPML has held that § 1407 transfers are limited to litigation in which significant

economy and efficiency in judicial administration may be obtained. In Re Plumbing Fixture

Cases, 298 F. Supp. 484, 499 (JPML 1968) (emphasis added).

2. Discovery on common questions of fact has concluded.

Common discovery has concluded in this case. The only discovery discussed at the

Status Conference on Oct. 1, 2019 was additional discovery into the 56 bellwether cases, solely

for the purpose of preserving evidence, 7 which is not a common issue. Transferee courts remand

actions when there is a substantial difference in the questions of law and fact involved, or

because the transferee court felt that the presence of certain claims would interfere with the

6
The Panel has consistently given "great weight" to the transferee judge's determination that remand is appropriate.
In re King Resources Co. Sec. Litig., 458 F. Supp. 220, 222 (JPML 1978). However, placing great weight is not the
same as conferring discretion, and the transferee court still follows the case law of the JPML.
7
At the status conference, Counsel for Chiquita Brands urged the Court to grant its motion to dismiss the cases of
plaintiffs who failed to appear for depositions. DE 2215. We voluntarily dismissed the cases of plaintiffs who for
health or other reasons, said they couldn’t travel to Florida, and dismissed additional claims of replacement plaintiffs
who didn’t obtain visas, leaving us with only six bellwethers out of eight. We don’t agree that the denial of a visa
should result in the plaintiff losing the case on the merits, so all of our withdrawn claims were without prejudice to
refile them in the event the 11th Circuit rules in our favor.

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consolidated or coordinated proceedings. In re IBM Peripheral EDP Devices Antitrust Litig.,

407 F.Supp. 254, 255 (JPML 1976); In re Brand-Name Prescription Drugs Antitrust Litigation,

264 F.Supp.2d 1372, 1375-1376 (JPML 2003) (tranferee judge remanded claims after finding

common expert and discovery had been substantially completed); In re Fosamax (Alendronate

Sodium) Products Liability Litig., 852 F.3d 268, 302 (3rd Cir. 2017) ("Some purely legal issues

may apply in every case. But merits questions that are predicated on the existence or

nonexistence of historical facts unique to each Plaintiff ... generally are not amenable to across-

the-board resolution. Each plaintiff deserves the opportunity to develop those sort of facts

separately, and the District Court's understandable desire to streamline proceedings cannot

override the Plaintiffs' basic trial rights."); In re Fedex Ground Package System, Inc.

Employment Practicies Litigation, 2010 WL 3239330 at *2 (N.D. Ind. 2010) ("In most cases

transferred under 28 U.S.C. § 1407, substantially all discovery will be completed before remand,

but in some cases ... such as mass tort litigation, discovery regarding individual damages may

have been deferred and must be concluded in the transferor district after remand."); In re Air

Crash Disaster at Tenerife, 461 F. Supp. 671, 672-673 (JPML 1978) ("As is generally true in

multidistrict air disaster litigation, the common questions of fact in the present litigation

primarily concern the issue of liability, whereas the issue of damages is unique with respect to

each person who was aboard the aircraft.")

The Defendant counters that "common issues of fact surrounding core issues in this case

remain unresolved." Opposition at 2. Those issues should be resolved at trial in the District of

Columbia. The MDL transferee court doesn't have jurisdiction to resolve factual disputes.

Moreover, each plaintiff has the right to prove her own case at trial and not be bound by

judgments in other cases. Finally, a suggestion of remand may be timely even if some discovery

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issues remain outstanding. See, e.g., In re Ins. Brokerage Antitrust Litig., MDL No. 1663, 2009

WL 1874085, at *3-4 (D.N.J. June 30, 2009); In re Baseball Bat Antitrust Litig., 112 F.Supp.2d

1175, 1177 (J.P.M.L.2000); In re King Res. Co. Sec. Litig., 458 F.Supp. 220, 222 (J.P.M.L.

1978) (per curiam).

b. In re Maxim supports Plaintiffs' argument that remand is

appropriate after dispositive motions have been decided.

The Defendant cites In re Maxim Integrated Prods., Inc., No. 12-244 at *3 (WDPA, April

17, 2015) for the proposition that "all" pretrial proceedings must take place in the transferee

court, Opposition at 2, but doesn't explain where that case drew the line. Maxim involved two

patent claims filed in different courts. At the close of discovery, the Plaintiffs filed a motion to

remand. However, although discovery was completed, motions to challenge the qualifications

and testimony of the expert witnesses had not yet been filed, nor had motions for summary

judgment. Id. at *6. "It is not, however, unreasonable to presume that the issues to be tried to a

jury will be affected by the rulings on these matters. ... therefore, this court can only suggest

remand if BB&T demonstrates good cause." Id. In Maxim, there were no bellwether cases or

separate plaintiffs asking to be remanded. A fair reading of Maxim would be that "pre trial

proceedings" includes both expert challenges, and motions for summary judgment. Whether

Motions in Limine are in the same category would appear to be an issue of first impression. cf,

In re State Street Bank and Trust C. Fixed Income Funds Investment Litig., No. 08-5440, 2011

WL 1046162 at *7 (SDNY Mar 22, 2012). (remanding case prior to Daubert or summary

judgment proceedings). Despite all this, the Court may suggest a remand at any time prior to the

end of pre-trial proceedings, and may either decide the pending motions for summary judgment,

since they are distinct from the appeal, or remand the cases, and leave the motions for the D.C.

District Court to decide.

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3. In re Patenaude shows that Congress intended discovery in individual cases

in MDLs to be conducted in the transferor districts.

The Defendant argues that it is "black letter law that pretrial proceedings encompass, at a

minimum, fact discovery and resolution of dispositive motions," citing In re Patenaude, 210 F.3d

135, 144 (3rd Cir. 2000). Opposition at 4. The Defendant uses Patenaude and Maxim as the

basis for its argument that all pretrial proceedings, including all discovery, should occur in the

transferee court. Opposition at 2. (emphasis added in Opposition) In fact, the Patenaude case

quotes extensively from the legislative history of 28 USC §1407, and shows that Congress

thought it would be desirable for discovery in individual cases in MDLs to occur in the transferor

districts. The objective of the statute makes a good starting point:

The objective of the legislation is to provide centralized management under court

supervision of pretrial proceedings of multidistrict litigation to assure the "just and
efficient conduct" of such actions. The committee believes that the possibility for
conflict and duplication in discovery and other pretrial procedures in related cases can be
avoided or minimized by such centralized management. To accomplish this objective the
bill provides for the transfer of venue of an action for the limited purpose of conducting
coordinated pretrial proceedings.”

H.R. Rep. 1130, 1968 U.S.C.C.A.N. at 1900 (hereinafter “House Report”), quoted at 210 F.3d

144. In addition, the House Report explains that:

trial in the originating district is generally preferable from the standpoint of the parties
and witnesses and from the standpoint of the courts it may be impracticable to have all
cases in mass litigation tried in one district.

Id. at 1901. More to the point, Congress found that it would be desirable for local discovery to

be conducted in the transferor court following remand:

the committee recognizes that in most cases there will be a need for local discovery
proceedings to supplement coordinated discovery proceedings, and that consequently
remand ... for this purpose is desirable.

Id. at 1901-02; quoted in 210 F.3d at 145. Congressional intent is also shown by the following

testimony:

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SENATOR TYDINGS: The intent of the coordinating committee, ... apparently, is that
the necessary additional discovery with regard to issues of fact not national or not
common to other cases could be conducted once the case was remanded ....

Do you agree that the intent of the bill is to allow additional discovery after remand ...,
and if so, is the language of the legislation sufficiently broad to permit that?

JUDGE MURRAH: Yes

Id., quoted at 210 F.3d at 145. Additional testimony from the House Report may be found in

footnote 1 in In Re Plumbing Fixture Cases, 298 F. Supp. 484 (JPML 1968).

B. The just resolution of Plaintiffs’ cases favors remand.

1. The 11th Circuit's Daubert jurisprudence is mostly based on products

liability cases alleging medical injuries, and is inapplicable to this situation.

The 11th Circuit has developed an intricate body of case law dealing with the application

of the Daubert test in toxic tort cases where the plaintiff alleges medical injuries. In McClain v.

Metabolife International, Inc., 401 F.3d 1233, 1237-1255 (11th Cir. 2005), the 11th Circuit

described a variety of methodologies8 that experts may and may not use to establish causation.

These were, somewhat simplistically, put into two categories: (1) those in which the medical

community generally recognizes that a certain chemical or product can cause the injury alleged,

and (2) those in which the medical community does not. Id. at 1239. In Hendrix v. Evenflo Co.,

609 F.3d 1183 (11th Cir. 2010), the Eleventh Circuit indicated that the principles articulated in

McClain and other toxic tort cases apply to any type of products liability case in which a medical

injury is alleged to have arisen from the use of a defective product. Id. at 1196 n. 6. Plaintiffs

have already cited cases in which law enforcement officers, and particularly in the drug
8
The categories, based on this and other 11th Circuit cases discussed herein, are analyzed in Erica W. Rutner &
Lara Bueso Bach, "Indispensible" Methods for Admitting General Causation Experts in the Eleventh Circuit, 69
University of Miami Law Review 999. According to this author, the so-called "indispensible" methods for
establishing general causation rely on epidemiological evidence, a dose-response relationship, and background risk
of the disease. Id. "Scientifically unreliable" methods include case and adverse event reports, clinical experience and
differential diagnosis, a mere temporal relationship, government findings based on a risk-benefit analysis, and
extrapolations from animal and in vitro studies and analogous agents or diseases. Id. However, these criteria have
never been applied outside of the context of liability for products causing medical injuries.

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Case 0:08-md-01916-KAM Document 2593 Entered on FLSD Docket 10/20/2019 Page 15 of 16

trafficking and organized crime investigations, were admitted as experts to explain to the jury

how these organizations work, including their modus operandi. The Court also cited several

cases in this area in its Order.

2. It would be unjust to determine Plaintiffs’ cases based on the non-Wolf

Plaintiffs generic experts.

Aside from applying the law of the wrong circuit, and the Daubert test the 11th Circuit

developed based on products liability cases, the plaintiffs will no doubt have trouble having their

voices heard. We were excluded from oral argument in the last interlocutory appeal, by

attorneys with obvious conflicts of interest arising from their other Alien Tort Statute cases. The

same attorneys will again convince the 11th Circuit that they speak for the plaintiffs.

Unfortunately, they don't have a law enforcement expert, or an expert who interviewed any

plaintffs, and will argue for the lowest common denominator among their cases.

Another expert who may tip our cases into the realm of the plausible is Carlos Eusse, a

former Accion Social employee who can explain and introduce correspondence from that agency,

which recognizes the plaintiffs as war crimes victims and awards about $10,000 to the family of

each recognized victim. The non-Wolf plaintiffs have generic university professors as experts.

Not only the identities, but the types of experts involved are completely different.

Conclusion

Since the legal and factual bases of Plaintiffs' cases are diverging from those of the non-

Wolf plaintiffs, it would not only be inefficient to keep the Wolf Plaintiffs in this Court, but

would also be unfair. There is no benefit to continued coordinated proceedings in this Court,

since all that remains is the case-specific discovery that will be requested by the Defendants. It

was the intent of Congress that such discovery be conducted in the transferor court.

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Case 0:08-md-01916-KAM Document 2593 Entered on FLSD Docket 10/20/2019 Page 16 of 16

Respectfully submitted,

/s/ Paul Wolf

_______________________
Paul Wolf, DC Bar #480285
Attorney for Plaintiffs
P.O. Box 21840
Washington, DC 20009
(202) 431-6986
paulwolf@yahoo.com

October 20, 2019

Certificate of Service

I hereby certify that on this 20th day of October, 2019, I filed the foregoing document
with the Clerk of the Court using the Court's Electronic Case Filing (ECF) system, which will
send electronic notices to all persons entitled to receive them.

/s/ Paul Wolf

_____________
Paul Wolf

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