Alexander v. Abbott Laboratories Inc
ORDER DENYING IN PART AND RESERVING RULING IN PART: Plaintiffs' motions to dismiss without prejudice. At this point in this litigation, the relevant Plaintiffs must either try their cases or be dismissed with prejudice. Plaintiffs shall have thi rty days from the date of this Order to withdraw their respective Motions to Dismiss. If a Plaintiff does not withdraw the motion within the allotted thirty days, the Court will enter a dismissal with prejudice. Signed by Judge Nancy J. Rosenstengel on 10/10/2017. Associated Cases: 3:12-cv-00052-NJR-SCW, 3:13-cv-01115-NJR-SCW, 3:15-cv-00702-NJR-SCW, 3:17-cv-00785-NJR-SCW, 3:17-cv-00789-NJR-SCW, 3:17-cv-00790-NJR-SCW(jmw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
IN RE DEPAKOTE:
RHEALYN ALEXANDER, et al.,
ABBOTT LABORATORIES, INC., and
Case No. 12-CV-52-NJR-SCW
LEAD CONSOLIDATED CASE
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Pending before the Court are five separate Motions to Dismiss Without Prejudice:
(1) Case No. 17-CV-785, Doc. 2; (2) Case No. 17-CV-789, Doc. 2; (3) Case No. 17-CV-790,
Doc. 2; (4) Case No. 15-CV-702, Doc. 336; and (5) Case No. 13-CV-1115, Doc. 37.
Defendants filed responses asserting that the dismissals should be denied or in the
alternative, with prejudice. 1 Plaintiffs then filed replies opposing Defendants’ argument
for dismissals with prejudice. 2 For the reasons set forth below, the Court denies the
motions in part and reserves ruling in part.
The claims asserted in this case are part of a mass action involving more than 584
claims on behalf of individuals who allege they suffered serious birth defects as a direct
result of exposure to Depakote, an anticonvulsant drug marketed and sold by
Defendants. The original claims were filed in various Illinois state courts starting in late
Responses were filed in four of the five cases: (1) Case No. 17-CV-785, Doc. 3; (2) Case No. 17-CV-789,
Doc. 3; (3) Case No. 17-CV-790, Doc. 3; and (4) Case No. 15-CV-702, Doc. 337.
2 Replies were filed in three of the five cases: (1) Case No. 17-CV-789, Doc. 4; (2) Case No. 17-CV-790,
Doc. 4; and (3) Case No. 15-CV-702, Doc. 358.
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2010. Soon thereafter, Defendants removed the cases to federal court pursuant to the
Class Action Fairness Act in both the Southern and Northern Districts of Illinois, a move
that Plaintiffs unsuccessfully challenged before the Seventh Circuit. In re Abbott Labs.,
Inc., 698 F.3d 568 (7th Cir. 2012).
On May 19, 2014, the mass tort was reassigned to the undersigned District Judge
from the docket of Judge David R. Herndon. (Doc. 288). The Court attempted to advance
the prospects of settlement through, among other things, the appointment of a dedicated
mediator and the bellwether trial approach. (Doc. 439). After almost two years of the
bellwether trial process, including multiple attempts to facilitate settlement, the Court
issued an Order noting the failure of the bellwether approach and setting the litigation
on a path towards the next phase. (Doc. 485). To gain a better understanding of the
docket, the Court began ordering depositions of the key prescribing physicians in a
number of cases. (Doc. 485, at p. 3; Doc. 653). In an effort to get certain cases trial-ready,
the Court identified a list of cases for full discovery on February 16, 2017. (Doc. 808, at
p. 5). The selected cases were meticulously selected, with input from the parties, to
advance the mass action. In the July 21, 2017 Omnibus Order (“Omnibus Order”), the
Court provided the 2018 trial dates and recognized the cases it intended to use to fill
those slots. (Doc. 1035, at p. 9-10).
Plaintiffs seek a dismissal without prejudice subject to the conditions specified in
the Court’s Order dated May 17, 2017. (Case No. 14-CV-1062, Doc. 17). Defendants
oppose the Motions to Dismiss Without Prejudice and ask that the Court “order
Plaintiffs to decide whether they will dismiss their case with prejudice or proceed with
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work-up and possible trial according to the existing trial case selection process.” (Case
No. 17-CV-785, Doc. 3, at p. 1). In their replies, Plaintiffs argue that Defendants have
“fail[ed] to establish that dismissal without prejudice is unwarranted.” (Case No.
17-CV-789, Doc. 4, at p. 1).
A plaintiff can voluntarily dismiss an action without a court order if the
defendant has not served an answer or motion for summary judgment, or by the
stipulation of both parties. Fed. R. Civ. P. 41(a)(1). If the requirements of Rule 41(a)(1) are
not met, “an action may be dismissed at the plaintiff’s request only by court order, on
terms that the court consider proper.” Fed. R. Civ. P. 41(a)(2).
The Court should dismiss with prejudice if the defendant “[would] suffer some
plain legal prejudice other than the mere prospect of a second lawsuit.” Stern v. Barnett,
452 F.2d 211, 213 (7th Cir. 1971) (internal citation omitted). The Court looks to four
factors in analyzing whether or not the defendant will suffer legal prejudice. Those
factors are: “the defendant’s effort and expense of preparation for trial, excessive delay
and lack of diligence on the part of the plaintiff in prosecuting the action, insufficient
explanation for the need to take a dismissal, and the fact that a motion for summary
judgment has been filed by the defendant.” Pace v. S. Express Co., 409 F.2d 331, 334 (7th
Cir. 1969). The Pace analysis is not “a mandate that each and every such factor be
resolved in favor of the moving party before dismissal is appropriate. It is rather simply
a guide for the trial judge, in whom the discretion ultimately rests.” Tyco Labs., Inc. v.
Koppers Co., 627 F.2d 54, 56 (7th Cir. 1980).
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If the Court finds the defendant will suffer legal prejudice, the plaintiff who
moves for dismissal without prejudice under Rule 41(a)(2) “must be given a reasonable
opportunity to withdraw his motion in the event the district court grants the motion but
only with prejudice.” Marlow v. Winston & Strawn, 19 F.3d 300, 305 (7th Cir. 1994).
In their Motions to Dismiss Without Prejudice, Plaintiffs ask for “dismissal
without prejudice consistent with the form that this Court has been utilizing.” (Case No.
17-CV-785, Doc. 2, at p. 3). Plaintiffs are referring to the Court’s May 17, 2017 Order
granting Plaintiffs’ Motion to Dismiss Without Prejudice subject to two conditions. 3 The
Court notes, however, that there are critical procedural differences between Case No.
14-CV-1062 and the cases at issue here.
The status of the mass action and the procedural posture of the cases Plaintiffs
seek to dismiss are much further along than the cases referenced by Plaintiffs. With the
exception of McGuiness-Colon, each case subject to this Order was selected based on a
meticulous selection process to best advance the mass action as a whole, and each was
advancing through full discovery. McGuinnes-Colon, one of the original bellwether cases,
has been in the Court’s “trial ready or close to trial ready” inventory for well over a year.
The progress made in these cases starkly contrasts with that in Case No. 14-CV-1062 in
which “no depositions or written discovery has been completed in [the] case, no expert
reports have been produced, no trial date has been set and thus, Defendants’ efforts and
The conditions are (Case No. 14-CV-1062, Doc. 17, at p. 7):
(1) if Plaintiffs seek to reinitiate his legal action in connection with or involving in utero exposure to
Depakote, the action must be filed in the United States District Court for the Southern District of
Illinois; and (2) in the refiled action, the parties will make use of the discovery undertaken thus far
to the greatest extent reasonably possible and shall strive not to duplicate in any subsequent action
any discovery already undertaken as part of the Depakote proceedings consolidated under Case
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expense in preparation for the trial are minimal, if any.” (Case No. 14-CV-1062, Doc. 14,
at p. 2).
Also, unlike Case No. 14-CV-1062, the Court selected the cases at issue to be
worked up for trial based on a specific strategy to advance the mass action litigation and
ultimately resolve the entire docket. While Plaintiffs argue a technicality that each of
their “case[s] has not yet been assigned a trial date” (Case No. 17-CV-785, Doc. 2, at p. 2),
the Court has made clear that these cases will be tried within the next twelve months. In
the Omnibus Order, the Court listed the 2018 trial dates and plainly stated that in filling
these slots, “the Court intends to pull from the group of approximately twenty-five cases
previously slated for full discovery.” (Doc. 1035, at p. 10). As noted, the moving Plaintiffs
were previously slated for full discovery and thus would be among the cases slotted for
the 2018 trial dates.
Beyond the significant procedural differences from Case No. 14-CV-1062,
Defendants would suffer prejudice if the Court granted the Motions to Dismiss Without
Prejudice. The weight of the first Pace factor, Defendants’ effort and expense in
preparation for trial, is sufficient to support a decision to dismiss with prejudice when
“discovery ha[s] already been well underway.” Kapoulas v. Williams Ins. Agency, Inc., 11
F.3d 1380, 1385 (7th Cir. 1993). Discovery is well underway in each case at issue here.
Defendants have expended an enormous amount of time and expense advancing this far
in the mass action litigation. If Plaintiffs’ arguments are taken to their logical conclusion,
it would mean that by their account nothing substantive has occurred in the mass action
related to their cases for nearly six years. Clearly, the Plaintiffs in question have
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benefited from the massive amount of time, money, and effort expended just to reach
this point. 4 One need only scroll through the docket of the lead consolidated case,
12-CV-52, to see the years of work expended by both sides of this litigation. For this
reason alone, Defendants have met the threshold showing necessary for a dismissal with
As for the other Pace factors, several summary judgment motions have been filed
that have affected every case within the mass action. While there may have been no
motions for summary judgment filed in the specific dockets at issue, all Plaintiffs have
benefitted from the joint issues resolved on summary judgment. Moreover, even
assuming that Plaintiffs have valid reasons to dismiss their cases at this late stage and
that Plaintiffs did not cause excessive delay or demonstrate lack of diligence in
prosecuting these actions, Defendants’ effort and expense in preparing these cases for
trial overwhelmingly dictates the conclusion that these actions should be dismissed with
Lastly, to now grant these dismissals without prejudice would frustrate the
Court’s ability to manage its docket as well as its strategy for advancing the mass action.
In affirming a dismissal with prejudice, the Seventh Circuit recently emphasized that
district courts “handling complex, multidistrict litigation ‘must be given wide latitude
with regard to case management’ in order to achieve efficiency.’” Dzik v. Bayer Corp., 846
F.3d 211, 216 (7th Cir. 2017) (internal citation omitted). See also In re FEMA Trailer
In arguing Defendants’ discovery burden has not been too great, Plaintiffs rely on Tyco Laboratories, Inc.
v. Koppers Co., in which the Seventh Circuit affirmed dismissal without prejudice on similar facts in regard
to amount of discovery compiled. 627 F.2d 54 (7th Cir. 1980). Unlike Tyco, however, in which there was
only one plaintiff and one defendant, the cases here are part of a large mass action, and thus the Court
gives more weight to Defendants’ effort and expense in preparing discovery for trial.
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Formaldehyde Prods. Liab. Litig., 628 F.3d 157, 164 (5th Cir. 2010) (affirming dismissal with
prejudice because dismissal without prejudice would “threaten to defeat the court's
management effort”). It should be noted that unlike cases consolidated under
multidistrict litigation, this Court enjoys none of the organizational and procedural
benefits that accompany such litigation.
Given the procedural posture of Plaintiffs’ cases and the mass action generally, to
dismiss these cases without prejudice would be to cede control of the mass action to one
party, i.e., Plaintiffs. The Court has expended a vast amount of resources in determining
which cases would be selected for the upcoming trials. In particular, the Court
intentionally selected certain cases in order to allow for maximum flexibility in
conducting joint trials. See Omnibus Order (Doc. 1035, at p. 10) (“[F]or the May and June
trials, the Court will begin implementing joint trials.”). Granting Plaintiffs’ Motions to
Dismiss Without Prejudice would disrupt the Court’s ability to conduct joint trials as
well as set a “precedent that other plaintiffs could use to manipulate the integrity of the
[C]ourt’s . . . process.” In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 628 F.3d at 163.
In their replies, Plaintiffs mischaracterize the Court’s interest in advancing this
mass action as “wanting to clear an overloaded docket.” (Case No. 17-CV-789, Doc. 4, at
p. 4). This is manifestly incorrect. In refusing to grant dismissals without prejudice, the
Court is not attempting to unload its docket but instead ensuring that the cases that have
been laboriously worked up for trial do indeed proceed to trial. One need only look at
this docket to see the monumental task that the Court undertakes in selecting even one
case to proceed to trial out of the hundreds that have been filed. The Court fully
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embraces its responsibility to advance the mass action and eventually resolve all of the
claims within. That is exactly the reason why this Court will refuse to dismiss without
prejudice the cases that have already been selected for trial with the goal that they will
proceed to trial as intended.
The Seventh Circuit identified the cases in this mass action as those to be tried
jointly in order to “facilitate the efficient disposition of a number of universal and
fundamental substantive questions applicable to all or most Plaintiffs’ cases . . . .” In re
Abbott Labs., Inc., 698 F.3d 568, 573 (7th Cir. 2012) (internal quotation omitted) (emphasis
supplied). As the Seventh Circuit noted and this Court has repeatedly emphasized, the
goal of the mass action is to enable the efficient and timely resolution of the cases
involved. Plaintiffs’ attempts to dismiss their cases at such at late stage undermines the
Court’s ability to do so. For these reasons, the Court cannot grant Plaintiffs’ requests for
a dismissal without prejudice subject to the conditions set forth in the May 17, 2017
At this point in this litigation, the relevant Plaintiffs must either try their cases or
be dismissed with prejudice. Accordingly, the Court DENIES in part and RESERVES
RULING in part Plaintiffs’ Motions to Dismiss. Plaintiffs shall have thirty days from the
date of this Order to withdraw their respective Motions to Dismiss. If a Plaintiff does not
withdraw the motion within the allotted thirty days, the Court will enter a dismissal
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Finally, the Court anticipates that in the coming weeks, the next batch of cases
will be selected for full discovery as part of the Court’s trial inventory. Because the Court
will be selecting cases based on a joint trial pairing criteria, many cases will be cleared
for full discovery without undergoing the initial key prescriber depositions. For cases
that have not undergone the key prescriber deposition discovery, Plaintiffs shall have
forty-five days following the completion of the prescriber depositions to file for
dismissal without prejudice. Once the forty-five day window elapses, the Court will not
entertain a motion to dismiss without prejudice absent extraordinary and unforeseeable
circumstances. This procedure serves three purposes. First, it affords the parties the
ability to assess the most critical piece of evidence while allowing Plaintiffs the option of
a dismissal without prejudice. Second, it gives the Court the ability to navigate and
control the progression of the mass action docket and case pairings by adding stability
and certainty to the “trial ready” inventory. Third, it ensures that Defendants are not
further prejudiced through continued pretrial preparation in cases that Plaintiffs do not
intend to try.
IT IS SO ORDERED.
DATED: October 10, 2017
NANCY J. ROSENSTENGEL
United States District Judge
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