Witthauer et al v. McKesson Corporation

Filing 11

ORDER GRANTING MOTION TO RELATE; STAYING CASES. Signed by Judge James Ware on 2/1/12. (sis, COURT STAFF) (Filed on 2/1/2012)

1
2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

SAN FRANCISCO DIVISION

/

NO. C 11-05967 JW
NO. C 12-00343 LB
NO. C 12-00344 NC
NO. C 12-00346 MEJ
NO. C 12-00347 LB

/

10

ORDER GRANTING MOTION TO
RELATE; STAYING CASES

Terry Freitas, et al.,

11
Henry D. Witthauer, et al.,
For the Northern District of California

United States District Court

/
12
13

Wendell Rice, et al.,

14
Tenessia Posey, et al.,
15
16

/
Mary Keene, et al.,

17

Plaintiffs,
/

18
v.
19
McKesson Corp., et al.,
20
Defendants.
/

21
22
23

Presently before the Court is Defendant Eli Lilly and Company’s (“Eli Lilly”) Motion to
Relate.1 Defendant Eli Lilly contends that this case should be related to four other cases2 removed to

24
1

25
26

(Defendant Eli Lilly and Company, a Corporation’s Administrative Motion to Consider
Whether Cases Should Be Related; Request to Stay Cases If Related, hereafter, “Motion to Relate,”
Docket Item No. 27.)
2

27
28

The other cases are: (1) Witthauer v. McKesson Corporation, No. C 12-00343 LB; (2) Rice
v. McKesson Corporation, No. C 12-00344 NC; (3) Posey v. McKesson Corporation, No. C 1200346 MEJ; and (4) Keene v. McKesson Corporation, No. C 12-00347 LB (collectively, the “2012
Cases”).

1

the Northern District of California on January 23, 2012, on the ground that the other cases “assert

2

virtually identical causes of action, name the same lengthy list of companies as defendants, and seek

3

identical relief” as in this case. (Motion to Relate at 1.)

4

Civil Local Rule 3-12(a) provides:

5

An action is related to another action when:

6

(1)

The action concerns substantially the same parties, property, transaction or event; and

7

(2)

It appears likely that there will be an unduly burdensome duplication of labor and
expense or conflicting results if the cases are conducted before different judges.

8
Upon review, the Court finds that the 2012 Cases are related to this case. First, the Court
9

finds that each of the 2012 Cases names the same Defendants as are named in this case.3 Second,

10

For the Northern District of California

United States District Court

the Court finds that each of the 2012 Cases concerns substantially the same transactions or events as
11

this case.4 Finally, the Court finds that there will likely be an unduly burdensome duplication of

12
labor if the 2012 Cases are not related to this case, insofar as Defendant Eli Lilly contends that it
13
“intends to promptly seek transfer of [the 2012 Cases]” to the same Multidistrict Litigation
14

Proceeding to which it has sought transfer of this case.5 (Motion to Relate at 1.)

15
16
17
18
19
20

3

(Compare Motion to Relate, Ex. A, Complaint for Damages, hereafter, “Freitas
Complaint,” Docket Item No. 27-1 (listing Defendants in this case, which include McKesson
Corporation, Eli Lilly and Company, and a number of other pharmaceutical companies) with id.,
Exs. B-E, Docket Item Nos. 27-5, 27-7, 27-9 and 27-10 (listing Defendants in the 2012 Cases, which
also include McKesson Corporation, Eli Lilly and Company, and the same pharmaceutical
companies).)
4

21
22
23
24
25

(See Freitas Complaint ¶ 1 (describing this case as a lawsuit which “concerns personal
injury and death related to Plaintiffs’ and Decedent’s ingestion of prescription medication containing
the active ingredient propoxyphene for treatment of mild to moderate pain, marketed and sold as
generic and/or brand-name drugs under various names).) The Complaints in each of the 2012 Cases
describe those cases in substantively identical terms. (See, e.g., Motion to Relate, Ex. B, Complaint
for Damages in Rice v. McKesson Corporation ¶ 1, Docket Item No. 27-5 (describing that case as a
lawsuit which “concerns personal injury related to Plaintiffs’ ingestion of prescription medication
containing the active ingredient propoxyphene for treatment of mild to moderate pain, marketed and
sold as generic and/or brand-name drugs under various names”).)
5

27

(See Order Granting Defendant Eli Lilly’s Motion to Stay; Denying as Premature
Plaintiffs’ Motion to Remand at 2-5, hereafter, “January 10 Order,” Docket Item No. 25 (explaining
that the MDL Panel has issued a Conditional Transfer Order transferring this action to MDL No.
2226).)

28

2

26

1

Accordingly, the Court GRANTS Defendant’s Motion to Relate and ORDERS as follows:

2

(1)

The Clerk shall immediately relate the following cases to Freitas v. McKesson
Corporation, No. C 11-05967 JW:

3
4

(a)

Witthauer v. McKesson Corporation, No. C 12-00343 LB;

5

(b)

Rice v. McKesson Corporation, No. C 12-00344 NC;

6

(c)

Posey v. McKesson Corporation, No. C 12-00346 MEJ; and

7

(d)

Keene v. McKesson Corporation, No. C 12-00347 LB.

8

(2)

The Court STAYS the 2012 Cases pending resolution of the MDL Panel proceedings
regarding those cases.6 As the Court explained in its January 10 Order, any party

9

may move to lift the stay in any of the 2012 Cases within ten (10) days of the MDL

11
For the Northern District of California

United States District Court

10

Panel’s final decision.7 (Id.)

12
13
14

Dated: February 1, 2012
JAMES WARE
United States District Chief Judge

15
16
17
18
19
20
21
22
23
24
25
6

(See January 10 Order at 5.)

7

In light of this Order, the Court DENIES as premature all pending Motions in the 2012

26
27
28

Cases.
3

1

THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO:

2

Adam Richard Salvas [e-mail]
Christopher Patrick Norton [e-mail]
Curtis Nelson Bruehl [e-mail]
Elise Rochelle Sanguinetti [e-mail]
James Mark Neudecker [e-mail]
Karen Elizabeth Woodward [e-mail]
Richard Gordon Salkow [e-mail]

3
4
5
6

Dated: February 1, 2012

Richard W. Wieking, Clerk

7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

By:

/s/ JW Chambers
Susan Imbriani
Courtroom Deputy