In re Cymbalta (Duloxetine) Products Liability Litigation (No. II)

ORDER DENYING TRANSFER Sarah S. Vance, Chair Before the Panel: * Plaintiffs in two actions (Beard and Courtney) pending in the Southern District of Indiana move under 28 U.S.C. § 1407 to centralize 41 actions in that district.1 The actions, which are listed on the attached Schedule A, are pending in a total of 22 districts. Plaintiffs in the other 39 actions did not respond to the motion. Common defendant Eli Lilly and Company (Lilly) opposes centralization. I. The complaints in these 41 personal injury actions are substantially similar. Plaintiffs allege that they suffered a wide variety of withdrawal symptoms—including, inter alia, “brain zaps,” memory lapses, suicidal thoughts, increased anxiety, stomach cramping, insomnia, nausea, and dizziness—after discontinuing use of Cym-balta, a Lilly prescription drug used to treat depression, generalized anxiety disorder, diabetic peripheral neuropathic pain, fibromyalgia, and chronic musculo-skeletal pain. Plaintiffs contend that at all relevant times, Lilly has known or should have known 'of the significantly increased risk of withdrawal symptoms posed by Cymbalta, but has failed to warn of that risk adequately. This litigation is before us for a second time. At our December 2014 hearing session, we denied a motion for centralization of 25 Cymbalta cases (eighteen of which [1376] also are included in the present motion). See In re: Cymbalta (Duloxetine) Prods. Liab. Litig. (Cymbalta I), 65 F.Supp.3d 1393 (J.P.M.L.2014). At the time of the denial, we also were aware of 21 other related federal actions. See id. at 1393 n. 1. As now, Lilly opposed centralization. In our Cymbalta I decision, we acknowledged that these actions “share factual issues concerning Cymbalta’s development, marketing, labeling, and sale,” id. at 1393, but concluded that centralization was not warranted for a number of reasons. First, the procedural posture of the actions “var-ie[d] significantly.” Id. For example, whereas in the two earliest-filed of the cases, the discovery cutoff was quickly approaching, the more recently filed actions were “still in their infancy.” Id. at 1394. Second, the record showed “that most, if not all common discovery ha[d] already taken place in th[e] earlier-filed actions.” Id. Lilly already had produced nearly two million pages of documents, as well as corporate representatives for Rule 30(b)(6) depositions in the areas of drug safety, sales training, and labeling. Id. Third, only a limited number of plaintiffs’ counsel were involved in the litigation. Id. Just two firms represented plaintiffs in all of the 25 constituent actions, and Lilly was represented by only one law firm. Id. II. On the basis of the papers filed and the hearing session held, we deny plaintiffs’ motion, as there has been no “significant change in circumstances” in the litigation since our decision in Cymbalta 1.2 All the factors that weighed against centralization then still are present today. These 41 cases are at substantially different procedural stages. For example, although eighteen of the cases were commenced in August 2014, the eight actions in the Southern District of Indiana all were brought just this year, and do not have scheduling orders.3 In contrast, the Middle District of Florida Krupp action has a discovery cutoff of February 5, 2016; the Middle District of Alabama Moss action has a cutoff of March 25, 2016; and the Southern District of California Wheeler has a cutoff of April 29, 2016. Common discovery has advanced even further since Cymbalta I. Indeed, in recent months, four Cymbalta cases have gone to trial—including two cases in the Central District of California that were on the Section 1407 motion in Cymbalta I. According to Lilly, it has produced nearly three million pages of documents; Lilly witnesses have sat for four 30(b)(6) depositions covering such topics as the company’s regulatory affairs, sales training, clinical trial, and safety surveillance functions; and there have been seven fact depositions of current and former Lilly employees involved with the development, clinical trials, and post-marketing surveillance of Cym-balta withdrawal trials. Lilly represents that it has made this common discovery available to all plaintiffs in cases in which discovery has been served on Lilly and protective orders have been entered, and that it will make that discovery available to all plaintiffs in the same manner. Although moving plaintiffs complain that discovery has been conducted in an uncoordinated manner and that Lilly’s production has been deficient in several respects, the current record even more firmly supports our conclusion in Cymbalta I that “the discovery that has occurred to date has been substantial.” See 65 F.Supp.3d at 1394. [1377] Finally, the record does not show a significant increase in the number of unique counsel. Plaintiffs in these actions are represented by one or more of four law firms, and Lilly is represented in virtually all actions by the same law firm. Given this limited number of involved counsel, informal coordination and cooperative efforts by the parties and involved courts remain practicable.4 See, e.g., In re: Eli Lilly & Co. (Cephalexin Monohydrate) Patent Litig., 446 F.Supp. 242, 244 (J.P.M.L.1978); see also Manual for Complex Litig., Fourth, § 20.14 (2004). IT IS THEREFORE ORDERED that the motion for centralization of these actions is denied. SCHEDULE A MDL No. 2662—IN RE: CYMBALTA (DULOXETINE) PRODUCTS LIABILITY LITIGATION (NO. II) Middle District of Alabama MOSS, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 3:14-01135 Central District of California PATTERSON, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 2:14-08527 CAPORALE, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 5:14-01662 HOLLOWELL, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 5:14-01663 BARRETT, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 5:14-01675 O’SHEA, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 8:14-01274 Eastern District of California CHE SHIER v. ELI LILLY AND COMPANY, C.A. No. 1:14-01265 WOODRUFF, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 2:14-01890 NELSON-DEVLIN, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 2:14-02811 BEN, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 2:14-02914 WOLFF, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 2:14-03004 Southern District of California WHEELER, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 3:14-01882 District of Colorado CHENEY, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 1:14-02249 MARTIN v. ELI LILLY AND COMPANY, C.A. No. 1:14-02800 Middle District of Florida LAICA-BHOGE, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 6:14-01286 VALENTINO v. ELI LILLY AND COMPANY, C.A. No. 6:14-01816 KRUPP, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 8:14-02792 [1378] BROTHERTON v. ELI LILLY AND COMPANY, C.A. No. 8:14-02876 Northern District of Georgia COUCH v, ELI LILLY AND COMPANY, ET AL., C.A. No. 1:14-02564 Southern District of Indiana HILL, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 1:15-00141 BOLES ET AL. v. ELI LILLY AND . COMPANY, C.A. No. 1:15-00351 DECRANE, ET AL. v.' ELI LILLY AND COMPANY, C.A-. No. 1:15-00365 BICKHAM, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 1:15-00531 COURTNEY, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 1:15-00643 WASHINGTON, ET AL. v. ELI LILLY AND COMPANY., C.A. No. 1:15-00700 JONES, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 1:15-00701 BEARD, ET AL. v. ELI LILLY AND COMPANY, C:A. No. 1:15-00922 Western District of Louisiana FAIRBANKS v. ELI LILLY AND COMPANY, ET AL, C.A. No. 1:14-02469 District of Maine ORLANDO, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 1:14-00438 District of Maryland. BOLING, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 8:14-02554 District of Minnesota MCCABE v. ELI LILLY AND COMPANY, ET AL., C.A. No. 0:14-03132 Northern District of Mississippi SPEARMAN, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 1:15-00006 District of Nevada ‘ WALKER v. ELI LILLY AND COMPANY, C.A. No. 2:14-0198.8 District of New Éampshire CARPENTER, ET AL. v. ELI LILLY AND COMPANY, ET AL., C.A. No. 1:14-00540 Eastern District of North Carolina WILLIAMS, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 5:14-00460 Middle District of North Carolina HARRIS v. ELI LILLY AND COMPANY, ET AL., C.A. No. 1:14-00682 Western District of Pennsylvania ROSSERO, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 2:14-01084 Eastern District of Tennessee EDENS, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 3:14-00491 Southern District of Texas PORKORNY, ET AL. v. ELI LILLY AND COMPANY,’ C.A. No. 4:14-02960 Eastern District of Washington WAGNER, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 2:14-00270 Western District of Wisconsin STREETER v. ELI LILLY AND COMPANY, C.A. No. 3:14-00555 Footnotes [*] Judge Ellen Segal Huvelle took no part in the decision of this matter. [1] As filed, the Section 1407 motion encompassed a total of 43 actions, but two have since been dismissed. [2] See In re: Plavix Mktg., Sales Practices & Prods. Liab. Litig. (No. II), 923 F.Supp.2d 1376, 1378 (J.P.M.L 2013). [3] In the Southern District of Indiana Washington and Jones actions, Lilly was served only just recently—on August 28, 2015. [4] Moving plaintiffs argue that since Cymbalta I, Lilly has refused to cooperate in various ways, including (1) rejecting a proposed tolling agreement providing for informal discovery followed by possible settlement discussions, (2) refusing to consent to plaintiffs’ plan to dismiss all pending cases outside the Southern District of Indiana without prejudice—provided that Lilly agree not to raise statute of limitations defenses that existed pri- or to the dismissals—and then to re-file those cases in that district, (3) opposing plaintiffs' subsequent efforts to have certain actions transferred to the Southern District of Indiana under 28 U.S.C. § 1404, and (4) objecting to the bundling of multiple, unrelated plaintiffs from various states in a single complaint. But in our decisions in which we have denied centralization and found cooperation feasible, we have never suggested that such cooperation entails requiring a party to acquiesce to a given motion, agree not to raise a possible claim or defense, or accede to its opponent's use of a particular procedural stratagem.