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In re Mirena Iud Products Liability Litigation

United States District Court, Second Circuit

May 3, 2013



CATHY SEIBEL, District Judge.

The Court has received a letter dated April 30, 2013 from Diogenes P. Kekatos of Seeger Weiss LLP (attached hereto as "Exhibit A"), written "on behalf of the organizing Plaintiffs, " requesting that the Court, in advance of the May 17, 2013 conference, appoint Mr. Kekatos as Liaison Counsel, and appoint the following attorneys as Co-Lead Counsel: Fred Thompson of Motley Rice LLC, James R. Ronca of Anapol Schwartz, and Matthew McCauley of Parker Waichman LLP. Mr. Kekatos requests immediate appointment "so as to allow us to use the intervening two weeks to negotiate substantively with Defendants on the issues that the Court has directed."

The Court will consider Mr. Kekatos's proposal upon receipt of the following additional information:

§ Whether the "organizing Plaintiffs" include all known Plaintiffs (or their counsel), and if not, on behalf of which of the Plaintiffs Mr. Kekatos's proposal is presented, and whether other Plaintiffs (or their counsel) have objected to this proposal or wish to make alternative proposals;
§ If the proposal does not represent a consensus of all Plaintiffs' counsel, an explanation as to why three recommendations for each position were not made, ( see Order No. 1 (Doc. 8), § VII.D);
§ An explanation as to why three Co-Lead Counsels are proposed, [1] what the proposed division of responsibility and authority among the three would be, why a Plaintiffs' Steering Committee and Plaintiffs' Executive Committee would also be necessary, and what their roles would be;
§ Certificates of good standing from the courts where the proposed Liaison and Co-Lead Counsels are admitted to practice, ( see Order No. 1, § VII.D); and
§ A description of the proposed compensation arrangements as to Liaison and Co-Lead Counsels, and the extent to which remaining Plaintiffs' counsel have concurred in or consented to such arrangements.



This Document Relates to All Actions

Dear Judge Seibel:

I am writing on behalf of the organizing Plaintiffs. In accordance with the Court's Order No. 1, we have reached out to all known Plaintiffs' counsel and invited them into dialogue relating to organizational matters, in order to comply with the Court's requirement of providing certain information, to facilitate meet-and-confer discussions with Defendants' counsel, and to submit proposals for leadership and liaison positions. We are pleased to advise the Court that we have had cordial and collegial meetings among our fellow Plaintiffs' attorneys, having called face-to-face meetings in two locations, having created a list-serve, and having had many group telephone calls, with respect to which all known interested persons have been included in our discussions. In addition, we are pleased to report that we have had a series of meet-and-confers with Defendants' counsel that have been productive in meeting the Court's directive.

At the same time, however, we are writing the Court because many of the "nuts-and-bolts" issues that that the Plaintiffs' side needs to take up with Defendants-relating to agreements on discovery and pre-trial issues, as well as administrative issues-can be undertaken on a binding basis only after the Court appoints a leadership group and confers upon it the authority to act.

In this respect, in order that these matters not lie dormant until the May 17th status conference, we are writing to request that the Court consider reviewing the proposed leadership that we have achieved by our own efforts. If it is satisfactory to the Court, we ask that it consider making an order of appointment immediately so as to allow us to use the intervening two weeks to negotiate substantively with Defendants on the issues that the Court has directed.

Our proposed slate of Co-Lead and Liaison Counsel is as follows:

Fred Thompson, Motley Rice LLC Co-Lead Counsel
James R. Ronca, Anapol Schwartz - Co-Lead Counsel
Matthew McCauley, Parker Waichman LLP - Co-Lead Counsel
Diogenes P. Kekatos, Seeger Weiss LLP - Liaison Counsel

Biographical information for the members of the proposed leadership is enclosed. We believe that a Plaintiffs' Steering Committee will be useful in the prosecution of this multidistrict litigation, and will likely propose that the day-to-day activities be closely managed by an Executive Committee as well.

Defendants' counsel are copied on this letter. While we certainly do not purport to speak for them, we do think that it would be accurate to state that that during our meet-and-confers with them, counsel for Defendants were eager to address pre-trial issues with the Plaintiffs' side substantively and quickly.

If the Court has questions or concerns, we stand ready to address them. The undersigned will be away for religious observances from this Wednesday, May 1st through next Monday, May 6th, but my partner Christopher A. Seeger will be available in the event that the Court requires immediate attention to any matter from us or wishes to convene a telephonic conference concerning any of the matters raised in this letter.

We thank the Court for its attention to this matter and consideration of this request.



Fred Thompson, Motley Rice LLC

Fred Thompson is proposed as Co-Lead Counsel. Mr. Thompson graduated cum laude from Yale University in 1973. After serving as a gunnery assistant and anti-submarine warfare officer as a lieutenant junior grade in the U.S. Navy from 1973-76, he attended law school and graduated with distinction from Duke University School of Law in 1979. He was elected to the Order of the Coif and served on the Editorial Board of the Duke Law Journal.

Mr. Thompson has been a member of the Bar of the South Carolina Supreme Court since 1979, practicing continuously for 32 years. He is a member of the United States District Court for South Carolina; the Fourth and Second Circuit Courts of Appeals, and the United States Supreme Court. He has been admitted pro hac vice to numerous state and federal fora and has never been denied admission or suffered discipline or sanctions by any sitting court. He carries an AV rating from Martindale Hubbell.

Mr. Thompson is a Member of Motley Rice LLC and is the Leader of the firm's Medical Practice Group, managing all cases related to medical devices, pharmaceutical drugs, medical negligence, and nursing home cases. He has maintained an active trial practice in the drug and device arena. His work has led to his appointment to numerous leadership positions, including Plaintiffs' co-lead counsel in the federal Digitek§ consolidation which resulted in a settlement for the Plaintiffs. He serves as Co-Lead Coordinating Counsel for all five pelvic mesh MDLs consolidated in the U.S. District Court for the Southern District of West Virginia. He has also been appointed to the Plaintiffs' Steering Committees in the Medtronic Sprint Fidelis§ defibrillator lead, Avandia§, Fosamax§ Femur, Trasylol§, Zicam§, and Hydroxycut§ federal multidistrict litigation. He has participated as a speaker and panelist at numerous legal gatherings.

With its main office in Mt. Pleasant, South Carolina, and offices in Providence, Rhode Island; Hartford, Connecticut; Morgantown, West Virginia; Los Angeles, California, New York City, New York; and Washington, D.C., Motley Rice has a nationally based plaintiffs' practice and the firm has vast experience litigating complex cases nationally. Motley Rice began representing workers injured by the asbestos industry in the 1970s and has been a leader at the forefront of the litigation. The lawyers of Motley Rice participated in the tobacco litigation by representing various states' attorneys general and were preeminent players in achieving that national settlement. The firm has also been in the forefront of litigation on behalf of 9/11 families and terrorism cases, aviation cases, lead paint and many other complex mass injury, commercial, and environmental cases. Several Motley Rice members serve as co-lead counsel and liaison counsel in numerous litigations, including the Kugel Mesh MDL and the Human Tissue MDL, and they have current PSC positions on the Depuy Orthopaedics, Inc. ASR Hip Implant MDL, and the NuvaRing Products Liability Litigation MDL. Most recently, Joseph Rice and a team of Motley Rice members and attorneys were appointed to the BP Oil Spill MDL, MDL 2179, and served as senior negotiators in fashioning the settlement just announced of the outstanding private claims arising from the April 20, 2010 oil spill, a settlement involving many thousands of claims and creating a settlement fund of in excess of seven billion dollars. Thus, the firm has an outstanding record of achieving complex settlements of mass injury consolidations, and will provide outstanding resources, experience, and an accomplished track record of dealing with many claimants, co-counsel, and adversaries, to achieve fair and efficient resolution of the Mirena litigation.

Matthew McCauley, Parker Waichman LLP

Matthew McCauley is proposed as Co-Lead Counsel. He is Senior Litigation Counsel at Parker Waichman and a resident of Westchester County. At Parker Waichman he leads the firm's Mirena IUD Litigation team and initiated, filed and argued the JPML request for coordination of these matters before this Honorable Court. Matthew has been involved with the Mirena IUD litigation for over two years, having strategically litigated with the Fred Thompson on many of his firm's cases in State and Federal Court and has worked cooperatively and collegially with the defendants and their counsel.

In addition to organizing and managing the Mirena IUD cases at Parker Waichman, Matthew has played a vital role with the other members of this consensus suggested leadership slate in the organization of plaintiffs' counsel across the Country who will be litigating these cases before your Honor. His early recognition of the need to pool resources and develop a foundation and support for the Mirena IUD litigation includes the creation of a listserve to share information and overseeing the Mirena Joint Prosecution Fund (held at Parker Waichman) that has been established by all members of this leadership application and other members of the plaintiffs' team to support this litigation. He is called upon regularly by his peers for litigation related advice; was selected as co-chair of the American Association for Justice (AAJ) Mirena IUD litigation group; and has been invited to lecture across the nation on topics associated with this litigation at events in which other presenters include Kenneth Star, Kenneth Feinberg, Professor Francis McGovern and Arthur Miller.

Matthew comes to this litigation with excellent leadership credentials and extensive experience in complex pharmaceutical matters. He has played leading roles in prosecuting cases in litigations involving Actos, Fosamax, Levaquin and Yaz. In these matters he has held various leadership positions including a Plaintiffs' Steering Committee (PSC) appointment in Levaquin as well as roles in the science, discovery and trial committee/teams in the others. In addition, as defense counsel prior to joining Parker Waichman, Matthew represented pharmaceutical and medical device companies and is intimately familiar with the organization and production issues that arise.

He has significant experience with large scale document and electronically stored information (ESI) productions on both sides of the field, and most recently was one of the team members of the Actos MDL ESI Team that introduced predictive coding protocols into mass tort litigations, a subject we hope this Honorable Court will entertain. This recent predictive coding protocol that was adopted and Ordered by Judge Rebecca F. Doherty from the United State District Court Western District of Louisiana has been the topic of many recent Court Orders across the Country as well as New York Law Journal articles and discussions. In addition to his experience with complex litigation and mass tort matters, Matthew was a law clerk in the United States Court of Appeals for the Second Circuit.

Matthew's leadership abilities are exemplified in both his legal career and beyond the practice of law. In the litigations mentioned above he has continuously been put into positions of leadership and responsibility for his clients, and those that have worked alongside him or under his direction would say he gets the job done with the team he is on. Beyond the practice of law, Matthew's leadership abilities have shined in his prior career as a New York City Police Officer and as a Paramedic now for almost 25 years. A first responder himself at the September 11th rescue and recovery effort, Matthew has been given distinction for his representation of those first responders injured during the rescue and recovery effort, including the Advocate of the Year award from the FealGood Foundation in 2012. Of note, while a New York City Police Officer and attending law school at night, he was chosen for an internship with the United States Attorney's Office for the Southern District of New York and assigned to work with Patrick Fitzgerald, Kenneth Karas and Michael Garcia.

As with the other attorney members of this consensus suggested leadership slate, Matthew has conferred with numerous attorneys representing Mirena IUD clients and expressed his intention to seek a co-lead counsel position with Fred Thompson and James Ronca, to which there has been broad support and no objections. As an officer of the court, and as a member of the New York, Massachusetts and Washington D.C. Bars, Matthew respectfully submits that he has the requisite experience and resources to serve as co-lead counsel with Fred Thompson and James Ronca, along with Dion Kekatos as liaison counsel, and is willing to commit to this challenging MDL process.

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