W. et al v. Pfizer, Inc. et al

Filing 34

ORDER by Judge Yvonne Gonzalez Rogers granting 7 Motion to Stay; denying 21 Motion to Remand; denying 30 Motion for Leave to File (fs, COURT STAFF) (Filed on 4/5/2013)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 8 J. W., et al., 9 10 United States District Court Northern District of California 11 12 Plaintiffs, vs. PFIZER, INC., et al., Case No.: 13-CV-00318-YGR ORDER GRANTING DEFENDANTS PFIZER INC. AND GREENSTONE LLC’S MOTION TO STAY PROCEEDINGS, DENYING PLAINTIFFS’ MOTION TO REMAND IN LIGHT OF STAY, AND DENYING DEFENDANTS’ MOTION FOR LEAVE TO FILE A SUR-REPLY AS MOOT Defendants. 13 14 Plaintiffs J.W. and Miranda Evans (“Plaintiffs”) brought this action on December 28, 2012 15 in San Francisco Superior Court against Defendants Pfizer, Inc., McKesson Corporation, 16 Greenstone, LLC, and Does 1 through 100, alleging that Defendants’ prescription medication 17 Zoloft caused birth defects when taken by pregnant women. Prior to the initiation of this action, the 18 Judicial Panel on Multidistrict Litigation (“JPMDL”) approved Multidistrict Litigation (“MDL”) 19 status for the numerous cases alleging that Zoloft causes birth defects in children when their 20 mothers ingest the drug while pregnant (MDL 2342). In Re: Zoloft (Sertraline Hydrochloride) 21 Products Liability Litigation, 856 F. Supp. 2d 1347, 1347 (J.P.M.L. 2012). 22 On January 30, 2013, the JPMDL issued a Conditional Transfer Order (“CTO”) transferring 23 this case to MDL 2342. (CTO-29, MDL 2342, Dkt. No. 321.) Plaintiffs filed a Notice of 24 Opposition to the CTO and a Motion to Vacate the CTO (“Motion to Vacate”). Defendants Pfizer, 25 Inc. and Greenstone, LLC (“Pfizer Defendants”) oppose the Motion to Vacate. The Motion to 26 Vacate is currently pending before the JPMDL. 27 In the action before this Court, Pfizer Defendants filed a Motion to Stay Proceedings on 28 January 28, 2013. (“Stay Motion” [Dkt. No. 7].) Pfizer Defendants argue that staying this case 1 wou preserve judicial reso uld j ources and av void potenti ally inconsis stent rulings on legal questions s 2 com mmon to multiple cases in MDL 2342 n 2—namely, questions of federal preemption and fraudulent f d 3 join nder. Plainti oppose the Stay Mot iffs t tion. They a assert that th Court shou resolve t he uld their Motion n 4 to Remand Matt to Califor State Co R ter rnia ourt, filed on February 1 2013 (“R n 11, Remand Motion” [Dkt. 5 No. 21]), before the case is transferred to the MDL. In addition Plaintiffs a e t t n, argue that th Court is his 6 better situated to rule on an issue of California law a that a sta would res in Plaint o and ay sult tiffs’ case 7 guishing in federal court. fe lang Plaintiff argue in th Remand Motion that complete d fs heir t diversity doe not exist b es because 8 Defe fendant McK Kesson Corp. (“McKesso . on”) is prope joined. P erly ndants oppos the se Pfizer Defen 10 Rem mand Motion They argu that McKesson is frau n. ue udulently joi ined because (1) the lea e: arned 11 United States District Court Northern District of California 9 inter rmediary doctrine and Comment k of the Restate C o ement (Seco ond) of Torts Section 402 preclude s 2A e 12 liabi ility against distributors of prescriptions medica ations; (2) the state claim is preempte by federa e m ed al 13 law; and (3) ther is no caus nexus bet ; re sal tween McKe esson and th alleged inj he jury. Seven days after 14 Plaintiffs filed th reply in support of the Remand Motion (Dk No. 27), D heir n t kt. Defendants f filed a 15 Mot tion for Leav to File a Sur-Reply (“ ve S “Motion for L Leave” [Dkt No. 30]). t. The Cou previously found that the pending Stay Motio and Rema Motion w urt y t g on and were 16 17 appr ropriate for decision without oral arg d gument purs suant to Fed. R. Civ. P. 7 78(b) and Civ. L.R. 7- 18 1(b) and took th matters un ) he nder submiss sion without hearing. (D No. 32.) At this tim the Stay t Dkt. ) me, 19 Mot tion, Remand Motion, an the Motio for Leave are all pend d nd on e ding before t Court. this Having carefully con c nsidered the papers subm mitted and th pleadings in this actio and for he on, 20 21 the reasons set forth below, the Court he r f ereby GRAN the Stay Motion pend NTS ding the dec cision of the 22 JPM MDL on the Motion to Vacate the CT The Rem M TO. mand Motio is DENIED in light of g on D granting the 23 Stay Motion, bu may be rey ut -filed in this Court if the JPMDL vac e cates the CT The Mo TO. otion for 24 Leav is DENIED as moot. ve D 25 I. DISCUS SSION 26 A. 27 “The pen ndency of a motion, orde to show c ause, condit er tional transfe order or conditional er 28 LEGAL STAN NDARD rem mand order be efore the Pan pursuant to 28 U.S.C [section] 1 nel C. 1407 does no affect or suspend ot 2 1 orde and pretr proceedin in any pending feder district court action a does not limit the ers rial ngs ral and t 2 pret trial jurisdict tion of that court.” J.P.M R. 2.1(d Therefor a district court has th discretion c M.L. d). re, he 3 to st the proce tay eedings or to consider a motion to re o emand. Land v. N. Am Co., 299 U 248, dis m. U.S. 4 254– (1936). When deter –55 rmining whe ether to stay proceedings pending a J s JPMDL tran nsfer, courts 5 may consider th factors: “ ‘(1) potent prejudice to the nony hree tial e -moving par (2) hards rty, ship and 6 ineq quity to the moving party if the actio is not stay and (3) t judicial r m y on yed, the resources tha would be at 7 save by avoidin duplicativ litigation if the cases are in fact c ed ng ve consolidated.’ ” Couture v. e 8 Hoff ffman-La Roc Inc., No 12-2657 PJH, 2012 W 3042994, at *2 (N.D. Cal. July 25 2012) che, o. P WL , . 5, 9 (quo oting Rivers v. Walt Disn Co., 980 F. Supp. 13 ney 0 358, 1360 (C Cal. 199 C.D. 97)). “Deferen to the MDL court fo resolution of a motion to remand o nce M or n often provide ‘the es 10 United States District Court Northern District of California 11 ortunity for the uniformi consisten and pre ity, ncy, edictability in litigation t underlie the MDL n that es oppo 12 syst tem.’ ” Cout ture, 2012 WL 3042994, at *2 (quot W ting Nielson v. Merck an Co., No. 0 nd 07-00076 13 MJJ 2007 WL 806510, at *1 (N.D. Cal. Mar. 15, 20 J, 8 * 007)). Some courts have found a “g e general rule” ” 14 that district cour should de ruling on pending m rts efer n motions to rem mand in MD litigation until after DL n 15 the JPMDL has made a tran J nsfer determi ination. Mic chael v. War rner-Lamber Co., No. 03 rt 3-cv-1978, 16 2003 U.S. Dist. LEXIS 2152 at *3 (S.D. Cal. Nov 20, 2003) ( 25, v. (quoting Jac ckson ex. rel Jackson v. l. 17 nson & John nson, Inc., No. 01-2113 DA, 2001 W 34048067 at *6 (W.D Tenn. Ap 3, N D WL 7, D. pril John 18 2001)). 19 20 o ence to MDL courts as n L noted above, the Court fir considers the factor rst s In light of the defere udicial econo omy. of ju 21 B. JUDICIAL ECONOMY C 22 Pfizer Defendants cl laim that oth cases in M her MDL 2342 h have raised b both of the ju urisdictional l 23 issu in this cas and that th ues se hose issues are currently under cons a y sideration by the Honora Cynthia y able 24 M. Rufe. Those issues are: (1) whether PLIVA, Inc. v. Mensing 131 S. Ct. 2567 (2011) preempts R e . g, ), 25 claim against distributors, such as McK ms d s Kesson, in fa ailure to war claims; an (2) whethe rn nd er 26 distr ributors, suc as McKesson, are liab under Cal ch ble . nt lifornia law. (Defendan Pfizer Inc. and 27 Gree enstone LLC Opposition to Plainti C’s iffs’ Motion to Remand [Dkt. No. 25 at 8, 12.) Pfizer 5] 28 Defe fendants cite to two cases in the MDL that argue these issues W.R. ex re Randall v. Pfizer, Inc., s L s: el. 3 1 MDL No. 2342, 3:2012-cv-04669, and Z.S. ex rel. Smith v. Pfizer, Inc, MDL No. 2342, 3:2012-cv- 2 02126. (Defendants Pfizer Inc. and Greenstone LLC’s Reply in Support of their Motion to Stay 3 [“Pfizer Defendants’ Reply to Stay Motion”] [Dkt. No. 23] at 6.) Granting the Stay Motion 4 supports judicial economy for three reasons. First, the existence of other cases with similar jurisdictional questions weighs strongly in 5 6 favor of staying the proceedings. Allowing the MDL judge to address these issues simultaneously 7 promotes “uniformity, consistency, and predictability.” Couture, 2012 WL 3042994, at *2. 8 Assuming arguendo that this Court is in a better position to interpret California law, any potential 9 benefit is outweighed by these policies.1 Judge Rufe is undoubtedly capable of applying both federal and California state law, particularly in light of the fact that she is already doing so for two 11 United States District Court Northern District of California 10 cases in MDL 2342 that were transferred out of the Northern District of California. Second, the JPMDL in MDL 2342 has already commented on the handling of jurisdictional 12 13 issues. In an April 17, 2012 Transfer Order, the Panel noted that plaintiffs in several actions argued 14 that removed actions should not be included in centralized proceedings because they will involve 15 unique jurisdictional issues. In Re: Zoloft (Sertraline Hydrochloride) Products Liability Litigation, 16 856 F. Supp. 2d 1347, 1347 (J.P.M.L. 2012). The Panel responded: 17 We respectfully disagree with these arguments. Almost 40 actions are now pending . . . and it appears likely that additional actions will be filed in the future. Furthermore, the Panel has long held that jurisdictional objections do not overcome the efficiencies that can be realized by centralized proceedings. 18 19 20 Id. at 1347–48 (emphasis supplied). Third, similar cases from this district support staying a case when other cases in the same 21 22 MDL have the same jurisdictional issues, despite pending motions to remand. In three cases 23 involving the alleged fraudulent joinder of McKesson, courts have opted to stay the proceedings in 24 the interests of judicial economy and consistent rulings. In Couture v. Hoffman-La Roche, Inc., No. 25 12-2657 PJH, 2012 WL 3042994, at *1 (N.D. Cal. July 25, 2012), plaintiff moved to remand and 26 27 28 1 Notably, one district court in the Central District of California that was handling two Zoloft MDL cases, took both the motions to stay and remand off calendar until the JPMDL determined whether to transfer the cases. See J.G. ex rel. Gray v. Pfizer, Inc., No. 2:12-cv-00486-JAK-PLA (C.D. Cal.); C.R. ex rel. Rosen v. Pfizer, Inc., No. 2:12-cv-01853-JAK-PLA (C.D. Cal.). 4 opposed a conditional transfer order to an MDL dealing with the drug Accutane. Amidst a claim 2 for fraudulent joinder by Defendants, including McKesson, the district court focused on the 3 conservation of judicial resources and the risk of inconsistent rulings, noting that at least one other 4 case in the MDL involved similar jurisdictional issues. Id. at *1–4. In addition, the court found 5 that the potential hardship of denying the stay, such as the risk of litigating in multiple fora, 6 outweighed the plaintiff’s claimed hardship of delay in the MDL court. Id. at *2–3. See Scroggins 7 v. Hoffman-La Roche, Inc, No. 12-2615 SI, 2012 WL 2906574, at *1 (N.D. Cal. July 16, 2012) 8 (holding a stay was “in the interest of judicial economy and consistency”); Hardin v. Merck & Co., 9 Inc., No. 07-0070 SBA, 2007 WL 1056790, at *1–3 (N.D. Cal. Apr. 5, 2007) (finding that the 10 “policy of consistent rulings” favored a stay because other cases in the MDL raised the same 11 United States District Court Northern District of California 1 jurisdictional questions and rejecting plaintiff’s argument that a California-based court was 12 necessarily in a better position to determine the fraudulent joinder issue because the MDL judge 13 had “great familiarity with” the facts and legal issues involved). 14 Plaintiffs’ arguments do not compel a finding that the Remand Motion must be decided 15 before the Stay Motion, particularly in a case such as this where multiple MDL cases share 16 common jurisdictional issues. For example, Plaintiffs cite Conroy v. Fresh Del Monte Produce, 17 Inc., 325 F. Supp. 2d 1049 (N.D. Cal. 2004), for the proposition that courts “should give 18 preliminary scrutiny to the merits of the motion to remand.” (Plaintiffs’ Opposition to Motion to 19 Stay Proceedings [“Plaintiffs’ Opp. to Stay Motion”] [Dkt. No. 20] at 6.) However, that case also 20 says that “if the jurisdictional issue is both difficult and similar or identical to those in cases 21 transferred or likely to be transferred, the court should stay the action.” Conroy, 325 F. Supp. 2d at 22 1053. In this case, Pfizer Defendants present at least a reasonable argument that McKesson is 23 fraudulently joined under either of the two theories detailed above. If the facts obviously supported 24 remand, deciding the Remand Motion first may be more appropriate and perhaps the most efficient 25 course of action. See Camara v. Bayer Corp., No. 09-06084 WHA, 2010 WL 902780, at *3 (N.D. 26 Cal. Mar. 9, 2010) (“If the remand motion appeared to be more one-sided in favor of plaintiffs, the 27 undersigned would be inclined to decide the motion now.”). Such is not the case here. 28 5 C. 1 2 BALANCING HARDSHIP TO THE MOV T VING PARTY WITH PREJ Y JUDICE TO T THE NONMOVING PAR RTY The Cou also finds that Pfizer Defendants risk conside urt s D erable hardsh if the Sta Motion is hip ay deni ied—namely they risk the possibilit of inconsi y, t ty istent outcom mes. Plaintif primary claimed ffs’ 4 harm is the pote m ential delay in litigation, assuming th their claim rightfully belong in C i hat ms y California 5 state court. By contrast, Pfi Defenda would b required to litigate in m e izer ants be o multiple fora Plaintiffs a. 6 claim that their case will “la m anguish in fe ederal court,” and that th jurisdicti ” heir ional questio will not on 7 be considered fo several mo c or onths. (Plaintiffs’ Opp. to Stay Mot tion at 10.) H However, Pl laintiffs 8 offe no tangible harm that they would suffer from w er e t s waiting a ter of month In light o the value rm hs. of 9 of consistent rul lings and eff ficient consid deration of c common issu Plaintiff claimed h ues, fs’ hardship 10 s fits quire immedi consider iate ration of the Remand does not outweigh the benef of a stay so as to req 11 United States District Court Northern District of California 3 Mot tion. 12 II. 13 LUSION CONCL For the foregoing rea f asons, Defen ndant’s Moti to Stay P ion Proceedings (Dkt. No. 7) is hereby ) 14 GRA ANTED until the JPMDL rules on Pla aintiffs’ Mot tion to Vacat the CTO. Plaintiffs’ M te Motion to 15 Rem mand to California State Court (Dkt. No. 21) is DENIED, but may be re-f filed in this C Court if the 16 CTO is vacated. Defendant Motion fo Leave to F a Sur-Reply in Oppo O . ts’ or File osition to Plaintiffs’ 17 Mot tion to Rema (Dkt. No 30) is DEN and o. NIED as moo ot. 18 19 The part are ORDERED to pro ties omptly file a joint notice of any activ by the Ju vity udicial Panel on Multidistrict Litigation affecting the stay. M a 20 This Ord terminate Dkt. Nos. 7, 21, and 3 der es 30. 21 IT IS SO ORDERED. 22 23 24 Date April 5, 2013 ed: 2 __ __________ ___________ __________ __________ YVON GONZAL ROGERS NNE LEZ UNITED ST TATES DISTR RICT COURT JUDGE T 25 26 27 28 6

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