Cheney et al v. Eli Lilly and Company

Filing 17

ORDER DENYING TRANSFER of District of Colorado CHENEY, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 1:14-02249, by the PANEL ON MULTIDISTRICT LITIGATION, Sarah S. Vance, Chair by Clerk on 12/10/2014. (evana, )

Case MDL No. 2576 Document 40 Filed 12/10/14 Page 1 of 5

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: CYMBALTA (DULOXETINE)
PRODUCTS LIABILITY LITIGATION

MDL No. 2576

ORDER DENYING TRANSFER

Before the Panel:* Plaintiffs in the 25 actions listed on the attached Schedule A move under
28 U.S.C. § 1407 to centralize those actions in the Central District of California, or, in the alternative,
the Western District of Wisconsin, the Southern District of California, or the District of Oregon.1
Plaintiffs in three potential tag-along actions, two in the Eastern District of Missouri, and one in the
Northern District of California, support centralization in the Central District of California. Common
defendant Eli Lilly and Company (Lilly) opposes centralization. If the Panel orders centralization
over its objections, then Lilly favors centralization in the Middle District of Florida, the Northern
District of Ohio, or the Northern District of Georgia.
The actions in this docket are highly similar. Plaintiffs allege that they suffered a variety of
withdrawal symptoms after discontinuing use of Cymbalta, a Lilly prescription drug used to treat
depression, generalized anxiety disorder, diabetic peripheral neuropathic pain, fibromyalgia, and
chronic musculoskeletal pain. Plaintiffs contend that the label for Cymbalta fails to adequately warn
of the risk of such symptoms, and that Lilly’s promotional campaigns for the drug have overstated
its efficacy while understating, downplaying, or failing altogether to state its withdrawal side effects.
On the basis of the papers filed and the hearing session held, we deny plaintiffs’ motion.
Unquestionably, these actions share factual issues concerning Cymbalta’s development, marketing,
labeling, and sale. Nevertheless, we are not convinced that centralization under Section 1407 is
warranted in these circumstances. First, the procedural posture of the actions varies significantly.
The three earliest-filed cases were commenced between April and June 2013, and the other 22 actions
were commenced in August 2014. In the two earliest-filed Central District of California actions
(Hexum and Herrera), the discovery cutoff is December 13, 2014. In the District of Arizona
*

Judge Charles R. Breyer and Judge Ellen Segal Huvelle took no part in the decision of this

matter.
1

As filed, the Section 1407 motion included an additional action in the Central District of
California, as well as one in the Southern District of New York. Plaintiff in that California action
voluntarily dismissed the case with prejudice in September 2014, and the judge in the New York
action recently granted Lilly’s motion for summary judgment on all claims. See McDowell v. Eli Lilly
& Co., — F. Supp. 2d —, 2014 WL 5801604 (S.D.N.Y. Nov. 7, 2014). To date, the Panel has been
informed of 21 additional related federal actions.

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-2Seagroves action, the cutoff is December 12, 2014.2 In contrast, the more recently-filed actions are
still in their infancy. See, e.g., In re: Lloyds Bank plc Int’l Mortg. Serv. Loan Litig., 997 F. Supp.
2d 1352, 1353 (J.P.M.L. 2014) (denying centralization, in part because of the “widely varying
procedural postures” of the subject actions).
Second, and relatedly, the record shows that most, if not all, of the common discovery has
already taken place in those earlier-filed actions. Indeed, Lilly represents that it already has produced
corporate representatives for Rule 30(b)(6) depositions in the areas of drug safety, sales training and
labeling. Lily also states that it has produced to plaintiffs’ counsel nearly two million pages of
documents. Although moving plaintiffs dispute the adequacy of Lilly’s production, there is no doubt
that the discovery that has occurred to date has been substantial.
Third, only a limited number of plaintiffs’ counsel are involved in these cases. In fact, just two
firms represent plaintiffs in all the constituent actions, and Lilly is represented in all actions by a single
law firm. This overlap suggests that informal coordination with respect to the remaining common
discovery, as well as other pretrial matters, should be practicable.3 See In re: Eli Lilly & Co.
(Cephalexin Monohydrate) Patent Litig., 446 F. Supp. 2d 242, 244 (J.P.M.L. 1978).
For all the above reasons, we conclude that Section 1407 centralization would not serve the
convenience of the parties and witnesses or promote the just and efficient conduct of this litigation.
IT IS THEREFORE ORDERED that the motion for centralization of these actions is denied.

PANEL ON MULTIDISTRICT LITIGATION

Sarah S. Vance
Chair
Marjorie O. Rendell
R. David Proctor

Lewis A. Kaplan
Catherine D. Perry

2

In the dismissed Southern District of New York action referenced in footnote 1, discovery
closed in June 2014.
3

In its brief, Lilly states that it will not oppose the use, in the same manner, of documents
that it already produced in the earlier-filed Cymbalta actions in any of the other related cases.

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IN RE: CYMBALTA (DULOXETINE)
PRODUCTS LIABILITY LITIGATION

MDL No. 2576

SCHEDULE A

District of Arizona
SEAGROVES, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 2:13-01183
Central District of California
HEXUM, ET AL. v. ELI LILLY AND COMPANY, ET AL., C.A. No. 2:13-02701
HERRERA, ET AL. v. ELI LILLY AND COMPANY, ET AL., C.A. No. 2:13-02702
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
CHESHIER 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
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
Middle District of Florida
LAICA-BHOGE, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 6:14-01286
Southern District of Florida
GOLLIN, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 0:14-61810

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- A2 MDL No. 2576 Schedule A (Continued)
Northern District of Georgia
COUCH v. ELI LILLY AND COMPANY, ET AL., C.A. No. 1:14-02564
Western District of Louisiana
FAIRBANKS v. ELI LILLY & CO., ET AL., C.A. No. 1:14-02469
District of Maryland
BOLING, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 8:14-02554
District of Minnesota
MCCABE v. ELI LILLY & COMPANY, ET AL., C.A. No. 0:14-03132
Eastern District of North Carolina
WHITWORTH, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 5:14-00459
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
Northern District of Ohio
MAYES v. ELI LILLY AND COMPANY, C.A. No. 4:14-01759
District of Oregon
LOUX, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 3:14-01287
Western District of Pennsylvania
ROSSERO, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 2:14-01084
Eastern District of Washington
WAGNER, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 2:14-00270

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- A3 MDL No. 2576 Schedule A (Continued)
Western District of Wisconsin
STREETER v. ELI LILLY AND COMPANY, C.A. No. 3:14-00555