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ORDER

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

IN RE: PHENYLPROPANOLAMINE

(PPA) PRODUCTS LIABILITY 

LITIGATION,

______________________________

MDL NO. 1407

ORDER OVERRULING BAYER

CORPORATION’S OBJECTION TO

ORDER TO SHOW CAUSE WHY CASE

SHOULD NOT BE REMANDED

This document relates to:

John Delahoussaye v. Bayer

Corporation, et al., 

No. 2-cv-2370

On March 8, 2005, the court issued an order to show cause

why this matter should not be remanded. Defendant Bayer

Corporation (“Bayer”) filed an objection, urging the court not to

remand the case because plaintiff’s claims against co-defendant

The Delaco Company (“Delaco”) are presently stayed pursuant to

its Chapter 11 bankruptcy filing. Alternatively, Bayer requests

that the court delay remand of the case for six months based on

the burden cause by the large number of cases that have already

been remanded to Louisiana. Having reviewed Bayer’s objection,1

Case 2:02-cv-02370-BJR Document 23 Filed 05/09/05 Page 1 of 4
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ORDER

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the court hereby finds and rules as follows: 

 Delaco filed for bankruptcy protection under Chapter 11 of

the Bankruptcy Code on February 12, 2004. The bankruptcy filing

stayed all claims against Delaco under 11 U.S.C. § 362, including

plaintiff’s claim. Plaintiff allegedly suffered a stroke 5 to 7

hours after taking Dexatrim, a Delaco product, and 20 to 22 hours

after taking Alka-Seltzer Plus, a Bayer product. Bayer argues

that Delaco is the “primary target defendant” because plaintiff

ingested Delaco’s product closer to the time of his stroke.

Therefore, Bayer argues, judicial efficiency requires that the

case should not be remanded until Delaco’s bankruptcy is resolved

and plaintiff can resume prosecution of his claim against the

company.

In essence, Bayer is asking the court to extend Delaco’s

automatic stay to include nonbankrupt Bayer–-something the court

will not do. While courts have been willing to extend a debtor’s

automatic stay to include its nonbankrupt co-defendants, they

have done so only when the co-defendants’ interests were so

intimately intertwined with the debtor’s that the latter may be

said to be the real property in interest. See, e.g., A.H. Robins

Co. v. Piccinin, 788 F.2d 994, 1007 (4th Cir. 1986). Courts have

decline to extend the automatic stay to unrelated co-defendants

who have merely a joint tortfeasor relationship with the debtor.

See, e.g., Lynch v. Johns-Manville Sales Corp., 710 F.2d 1194 (6th

Cir. 1983) (bankruptcy court would not exercise its discretion to

extend automatic stay so as to encompass nondebtor defendants in

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ORDER

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asbestos products liability actions; the scope of the automatic

stay is narrowly focused on protection of debtor only).

In the alternative, Bayer urges the court to stay remand of

the case in order to relieve the corporation and its counsel of

the hardships and scheduling conflicts that it claims will result

if the case is remanded to Louisiana. Bayer asserts that if the

court remands this case, 48 total cases against Bayer will have

been (or shortly will be) remanded back to federal courts in

Louisiana. Bayer requests that the court delay remand in order to

allow these cases to work their way through the Louisiana federal

court system. In support of its request, Bayer points to the

final paragraph of Case Management Order 17C (“CMO 17C”) which

states that the remand process is flexible and may be adjusted as

needed to “lessen the burden on any participant in [the remand]

process.”

The court is not persuaded that a stay of remand is

necessary. The court has set up a system for remand and both

plaintiff and Bayer agree that the case is ripe for remand. While

CMO 17C does allow the court to adjust the flow of remanded

cases, the present record does not warrant such action. If the

number of remanded cases to date has indeed placed a burden on

the Louisiana federal court system, that is something for those

courts to handle. If Bayer’s counsel is feeling burdened by the

number of remanded cases, counsel should raise the issue with the

remand judge during the scheduling conference. Simply put,

Bayer’s assertions of undue burden are too vague to warrant a

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ORDER

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six-month delay of remand in a case where all parties agree that

it is ripe for remand. 

Based on the foregoing, the court OVERRULES Bayer’s

objection to the order to show cause why the case should not be

remanded. The case will be included on the court’s May, 2005

Suggestion of Remand Order. 

 

 DATED at Seattle, Washington this 9th day of May, 2005.

ABARBARA JACOBS ROTHSTEIN

UNITED STATES DISTRICT COURT

JUDGE

Case 2:02-cv-02370-BJR Document 23 Filed 05/09/05 Page 4 of 4