Beatty et al v. AstraZeneca Pharmaceuticals, L.P. et al

Filing 51

MDL NO. 2404 TRANSFER ORDER: Transferring case to the U.S. District Court, Central District of California (as Case No. 2:12-CV-10521 DSF-SSx). Signed by The Judicial Panel on Multidistrict Litigation, on 12/10/2012. (Attachments: # 1 MDL Clerk's Letter)(jlm, COURT STAFF) (Filed on 12/10/2012)

Case MDL No. 2404 Document 64 Filed 12/06/12 Page 1 of 6
FILED
CLERK, U.S. DISTRICT COURT

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

12/10/12
CENTRAL DISTRICT OF CALIFORNIA

SB
BY: ___________________ DEPUTY
IN RE: NEXIUM (ESOMEPRAZOLE)
PRODUCTS LIABILITY LITIGATION
2:12-CV-10521 DSF-SSx
Judy Beatty vs. AstraZeneca

MDL No. 2404

MASTER
TRANSFER ORDER

Before the Panel:* Pursuant to 28 U.S.C. § 1407, plaintiffs in thirty-six actions pending in
or originating in the Central District of California move to centralize this litigation in the Central
District of California. This litigation currently consists of thirty-nine actions pending in nineteen
district courts, as listed on Schedule A.1 The actions in this litigation involve products liability claims
against AstraZeneca arising from ingestion of the drug Nexium (esomeprazole magnesium), a proton
pump inhibitor (PPI) prescribed for the treatment of heartburn, acid-reflux, and inflammation of the
esophagus. Plaintiffs allege that Nexium may cause a variety of bone ailments—in particular,
osteoporosis, loss of bone density, and bone fractures—and that AstraZeneca failed to adequately
warn of these potential adverse side effects.
All the responding plaintiffs support centralization in the Central District of California. All
of the responding defendants2 oppose centralization, but propose different alternative courses of
action. AstraZeneca and McKesson alternatively suggest that, if this litigation is centralized, the
Southern District of Texas should serve as the transferee district. Takeda alternatively requests the
Panel separate and remand the claims against it in the Northern District of California Beatty action.
Janssen, a defendant in a potential tag-along action, asks that we exclude that action from any
centralized litigation.
In opposing centralization, defendants argue that each action will involve multiple
individualized fact issues of causation and product identification that will require discovery unique

*

Judge Kathryn H. Vratil took no part in the decision of this matter.

1

The parties have notified the Panel of three additional related actions pending in the
Northern District of Alabama, the Northern District of Illinois, and the District of Nevada (a fourth
potentially related action was subsequently dismissed). These actions and any other related actions
are potential tag-along actions. See Panel Rule 7.1.
2

The responding defendants are: AstraZeneca Pharmaceuticals LP and AstraZeneca LP
(AstraZeneca); McKesson Corporation (McKesson); Takeda Pharmaceuticals U.S.A., Inc., Takeda
Global Research & Development Center, Inc., Takeda Pharmaceuticals International, Inc., Takeda
America Holdings, Inc., and Takeda California, Inc. f/k/a Takeda San Diego, Inc. (Takeda); and
Johnson & Johnson and Janssen Pharmaceuticals, Inc. (Janssen).
I hereby attest and certify on _________
12/10/12
that the foregoing document is full, true
and correct copy of the original on file in
my office, and in my legal custody.
CLERK U.S. DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
DEPUTY CLERK

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-2to each case. Defendants also contend that any multidistrict litigation is destined to become an
industry-wide litigation encompassing not only Nexium, but multiple different PPIs and
manufacturers. We respectfully disagree.
Although defendants focus on product identification issues, we are not persuaded that these
issues are so daunting that multidistrict treatment is unwarranted. Centralized products liability cases
generally will involve some individual questions of fact. See In re Darvocet, Darvon &
Propoxyphene Prods. Liab. Litig., 780 F. Supp. 2d 1379, 1381 (J.P.M.L. 2011). Section 1407 does
not require a complete identity or even a majority of common factual issues as a prerequisite to
centralization. Id. (citing cases). The transferee court can employ any number of pretrial
techniques—such as establishing separate discovery and/or motion tracks—to manage this litigation
efficiently.
Furthermore, experience has shown that pharmaceutical products liability actions do not
inevitably expand to encompass all similar medications. Indeed, every plaintiff in each action on the
motion alleges that he or she ingested Nexium and that this caused plaintiff’s injuries. Actions that
do not involve Nexium or do not contain allegations of bone-related injuries will not be centralized
(barring an indication from the transferee court that the parameters of this litigation should be
altered). Should the circumstances regarding any action develop such that either the transferee judge
or the parties determine that continued inclusion of a claim or action no longer remains advisable,
procedures are available whereby remand of that claim or action may be accomplished with a
minimum of delay. See Panel Rule 10.1(b).
On the basis of the papers filed and the hearing session held, we find that these actions involve
common questions of fact, and that centralization under Section 1407 in the Central District of
California will serve the convenience of the parties and witnesses and promote the just and efficient
conduct of this litigation. All the actions before the Panel assert claims against AstraZeneca arising
from ingestion of the drug Nexium. Specifically, the actions share allegations relating to the safety
of Nexium and the adequacy of AstraZeneca’s warnings concerning the possible adverse side effects
of using Nexium—in particular, the potential that Nexium may cause bone-related injuries such as
osteoporosis, bone deterioration or loss, and broken bones. Centralization will eliminate duplicative
discovery; prevent inconsistent pretrial rulings; and conserve the resources of the parties, their
counsel and the judiciary.
We decline Takeda’s alternative request to separate and remand the Northern District of
California Beatty action from this litigation. That request is based on the allegation of one plaintiff
in that action that she ingested both Takeda’s Prevacid and AstraZeneca’s Nexium. Excluding the
claims against Takeda will result only in duplicative discovery and pretrial practice. The transferee
judge can structure the pretrial proceedings so that discovery with respect to any issues unique to
Takeda can proceed concurrently with discovery on common issues. See In re Coloplast Corp.
Pelvic Support Sys. Prods. Liab. Litig., MDL No. 2387, __ F. Supp. 2d __, 2012 WL 3244296, at
*1 (J.P.M.L. Aug. 6, 2012).

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-3Normally, we would consider Janssen’s request to exclude the potentially-related Goodman
action in the District of Nevada from the MDL to be premature. See In re DePuy Orthopaedics, Inc.,
Pinnacle Hip Implant Prods. Liab. Litig., 787 F. Supp. 2d 1358, 1360 (J.P.M.L. 2011). However,
based on the injury described in the complaint (hypomagnesemia) and the parties’ arguments, it is
apparent that Goodman does not fall within the scope of this MDL. Accordingly, we will not
conditionally transfer that action to the MDL. If any involved party believes that Goodman should
be centralized, it may file a separate motion to that effect. See Panel Rule 7.1(b)(i).
We conclude that the Central District of California is an appropriate transferee district for this
litigation. The eight actions pending in that district involve the vast majority of plaintiffs in this
litigation—over a thousand plaintiffs. Further, twenty-eight of the non-California actions were
initially transferred from the Central District of California pursuant to 28 U.S.C. § 1404.3 The Central
District of California is also accessible and is proximate to at least four state court actions involving
approximately another two hundred plaintiffs. Thus, centralization in this district will facilitate
coordination with pending state court litigation. Finally, by selecting Judge Dale S. Fischer to preside
over this matter, we are selecting a jurist with multidistrict litigation experience and the ability to
handle this litigation.
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, the actions listed on
Schedule A and pending outside the Central District of California are transferred to the Central
District of California and, with the consent of that court, assigned to the Honorable Dale S. Fischer
for coordinated or consolidated pretrial proceedings with the actions pending there.

PANEL ON MULTIDISTRICT LITIGATION

_________________________________________
John G. Heyburn II
Chairman
W. Royal Furgeson, Jr.
Marjorie O. Rendell
Lewis A. Kaplan

3

Paul J. Barbadoro
Charles R. Breyer

As we have previously observed, the considerations affecting transfer under Section 1404
are not the same as those affecting transfer under Section 1407, and there is no inconsistency in
centralizing actions that have been so transferred in the originating district. See In re Epogen &
Aranesp Off-Label Mktg. & Sales Practices Litig., 545 F. Supp. 2d 1365, 1367 (J.P.M.L. 2008).

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IN RE: NEXIUM (ESOMEPRAZOLE)
PRODUCTS LIABILITY LITIGATION

MDL No. 2404

SCHEDULE A

Central District of California
Linda Carrasco, et al. v. McKesson Corporation, et al., C.A. No. 2:12-05044
Lupe Abina, et al. v. McKesson Corporation, et al., C.A. No. 2:12-05046
Antoinette Johnson, et al. v. McKesson Corporation, et al., C.A. No. 2:12-05048
Unniebe Solomon, et al. v. McKesson Corporation, et al., C.A. No. 2:12-05049
Pamela Mason, et al. v. McKesson Corporation, et al., C.A. No. 2:12-05050
Christine Nickerson, et al. v. McKesson Corporation, et al., C.A. No. 2:12-05052
Sherwin Arae, et al. v. McKesson Corporation, et al., C.A. No. 2:12-05053
Phyllis Cudney, et al. v. McKesson Corporation, et al., C.A. No. 2:12-05077
Northern District of California
Judy Beatty, et al. v. AstraZeneca Pharmaceuticals, L.P., et al., C.A. No. 4:12-03507
Southern District of California
Lois Hornsby, et al. v. AstraZeneca Pharmaceuticals LP, et al., C.A. No. 3:12-01307
Eastern District of Tennessee
Georgia Lou Payne v. McKesson Corporation, et al., C.A. No. 3:12-00341
Rodney Penland v. McKesson Corporation, et al., C.A. No. 3:12-00342
Cynthia Phillips v. McKesson Corporation, et al., C.A. No. 3:12-00343
Kelly Wayne Powers v. McKesson Corporation, et al., C.A. No. 3:12-00344
Peggy Smith v. McKesson Corporation, et al., C.A. No. 3:12-00345
Debra Ann Sweet v. McKesson Corporation, et al., C.A. No. 3:12-00346
Daniel Robin Thomas v. McKesson Corporation, et al., C.A. No. 3:12-00347
Kelly Toler-Allen v. McKesson Corporation, et al., C.A. No. 3:12-00348
Mary Ann Wheeler v. McKesson Corporation, et al., C.A. No. 3:12-00349
Middle District of Tennessee
James R. Biggers, et al. v. AstraZeneca, LP, et al., C.A. No. 1:11-00062
Western District of Tennessee
Beatrice Velasco, et al. v. McKesson Corporation, et al., C.A. No. 2:12-02613

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-A2MDL No. 2404 Schedule A (Continued)
Eastern District of Texas
Beatrice Velasco, et al. v. McKesson Corporation, et al., C.A. No. 6:12-00444
Northern District of Texas
Beatrice Velasco, et al. v. McKesson Corporation, et al., C.A. No. 3:12-02241
Southern District of Texas
Beatrice Velasco, et al. v. McKesson Corporation, et al., C.A. No. 4:12-02099
Western District of Texas
Irene Avelar, et al. v. McKesson Corporation, et al., C.A. No. 5:12-00673
District of Utah
Wendy Collins, et al. v. McKesson Corporation, et al., C.A. No. 2:12-00687
Eastern District of Virginia
Kraig Jackson, et al. v. McKesson Corporation, et al., C.A. No. 2:12-00401
Western District of Virginia
Shirley Bradley, et al. v. McKesson Corporation, et al., C.A. No. 7:12-00304
Western District of Washington
Beatrice Velasco, et al. v. McKesson Corporation, et al., C.A. No. 2:12-01208
Northern District of West Virginia
Jody Schnaak v. McKesson Corporation, et al., C.A. No. 1:12-00111
Betty Conner v. McKesson Corporation, et al., C.A. No. 2:12-00049
Patricia DeLorenzo v. McKesson Corporation, et al., C.A. No. 5:12-00106
Paul Whitlatch v. McKesson Corporation, et al., C.A. No. 5:12-00107

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-A3MDL No. 2404 Schedule A (Continued)
Southern District of West Virginia
Dawn Johnson, et al. v. McKesson Corporation, et al., C.A. No. 2:12-03054
Eastern District of Wisconsin
Emma Kuhn v. McKesson Corporation, et al., C.A. No. 2:12-00717
John McMahon v. McKesson Corporation, et al., C.A. No. 2:12-00718
Latrisha Morrow v. McKesson Corporation, et al., C.A. No. 2:12-00719
Western District of Wisconsin
Barbara Moore v. McKesson Corporation, et al., C.A. No. 3:12-00496
District of Wyoming
Juanita Kaye Westlake v. McKesson Corporation, et al., C.A. No. 2:12-00152