Alexander v. Abbott Laboratories Inc

Filing 996

ORDER pursuant to Rule 54(b). The Clerk of Court is directed to enter Judgment in: 12-CV-53; 12-CV-57; 12-CV-1091; 13-CV-134; 13-CV-1157; and 14-CV-916. Additionally, the lead trial counsel for the Estes case shall appear in person at the June 30, 2017 status conference and be prepared to discuss the Motion for Reconsideration (Case No. 12-CV-52, Doc. 945). Signed by Judge Nancy J. Rosenstengel on 6/21/2017.(jmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
IN RE DEPAKOTE:
RHEALYN ALEXANDER, et al.,
Plaintiffs,
vs.
ABBOTT LABORATORIES, INC., and
ABBVIE, INC.,
Defendants.

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Case No. 12-CV-52-NJR-SCW
LEAD CONSOLIDATED CASE

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
On April 11, 2017, the Court issued one omnibus Order granting summary
judgment for Defendants concerning the Indiana statute of repose. (Doc. 136). At the
conclusion of the Order, the Court instructed the Clerk of Court to enter judgment in
each respective case. Given the nature of the Depakote mass action and the issue
underlying the Order granting summary judgment, the Court intended to issue
judgment pursuant to Rule 54(b) for any case that had multiple parties unaffected by the
Order. On April 14, 2017, the Court requested input from the parties before entering a
final judgment on the matter. The parties provided a joint response on April 28, 2017,
agreeing that judgment pursuant to Rule 54(b) was appropriate for the following
Plaintiffs’ claims: (1) Ginnifer E. and Philip Baugher, individually as parents and next
friends of F.B., a minor; (2) Nicky Name (also known as Nicky Ward), individually as
parent and next friend of J.W.A., a minor; (3) Kathy Garrett, individually and as next

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friend of C.T; (4) Angie Stevenson, individually as parent and next friend of D.S., a
minor; (5) Sherry Williams, individually and as next friend of T.C., a minor; (6) Linda
Burns; and (7) Christopher Doty, individually and as personal representative of the
estate of Ryan Doty. 1 (Docs. 937; 938).
Under Rule 54(b) a district court “may direct entry of a final judgment as to one or
more, but fewer than all, claims or parties only if the court expressly determines that
there is no just reason for delay.” FED. R. CIV. P. 54(b). see also Gelboim v. Bank of America
Corp., 135 S. Ct. 897, 902 (2015) (Rule 54(b) permits district courts to authorize immediate
appeal “[w]hen an action presents more than one claim for relief… or when multiple
parties are involved, the court may direct entry of a final judgment as to one or more, but
fewer than all, claims or parties if the court expressly determines that there is no just
reason for delay.”); In re MTBE Products Liability Litigation, 2010 WL 1328249, at *4 (“the
role of this trial as a bellwether for an entire MDL makes this the type of ‘exceptional’
case where entry of final judgment pursuant to Rule 54(b) is appropriate”).
The Court finds that there is no just reason to delay entering a judgment in this
case. The claims of any one Plaintiff in the mass action—even those Plaintiffs who
brought their claims in one unified complaint—are not dependent upon one another to
The claims of Denise Estes, individually as parent and next friend of L.A.E., were excluded from the
parties’ joint submission, as Plaintiffs sought to file a motion for reconsideration related to facts impacting
the choice of law analysis in the underlying summary judgment Order. (Doc. 937, pp. 2-3). Plaintiffs filed
the motion for reconsideration on May 9, 2017. (Doc. 945). The Court intends to address this issue at the
status conference on June 30, 2017. The lead trial counsel for the Estes case shall appear in person at the
June 30, 2017 status conference and be prepared to discuss the motion. Specifically, counsel shall be
prepared to address why it took over five years (or even ninety days from the filing date of Abbott’s
motion) to ascertain even the most basic information to a Depakote case, e.g., where the mother was
treated, where the mother was prescribed Depakote, and even as basic as where the mother resides.
Compare (Case No. 12-CV-54, Doc. 98, p. 2) (“Plaintiffs [included Denise Estes] agree they are residents of
Indiana and conception, pregnancy and birth occurred in Indiana.”) with (Case No. 12-CV-44, Doc. 114),
(“Plaintiffs have been residents of Illinois from 1993 through today, and they have never resided in
Indiana.”)
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be resolved on the merits. 2 While the Court previously found certain cases sufficiently
similar to warrant joint trials, entering judgment on an individual Plaintiff’s claim would
not trigger the type of “piecemeal appeal” the Supreme Court cautioned against in Sears,
Roebuck, & Co. v. Mackey, 351 U.S. 427, 438 (1956).
Here, summary judgment was granted because claims of these Indiana Plaintiffs
are time barred by the relevant statute of repose. This is a discrete issue that is
completely independent from other cases within the mass action. There is no risk that
any change to the remaining cases would alter the analysis related to these specific
Plaintiffs. Finally, there are approximately six hundred cases remaining on the Court’s
docket, which will likely take years to adjudicate. If the Court does not enter judgment
under Rule 54(b), these Plaintiffs could potentially wait a decade or more before all of
the associated claims in their original complaints were resolved. To allow for the
continued maturation of the mass action and to prevent an injustice on all the parties, the
Court finds that judgment shall be entered under Rule 54(b). The Clerk is directed to file
a copy of this Order and the Judgment in: Case No. 12-cv-53; Case No. 12-cv-57;
Case No. 12-cv-1091; Case No. 13-cv-134; Case No. 13-cv-1157; Case No. 14-cv-916.
IT IS SO ORDERED.
DATED: June 21, 2017
___________________________
NANCY J. ROSENSTENGEL
United States District Judge
The exception to this general principal is for parents who bring claims on behalf of their minor children
and a claim in their own individual capacity. It is difficult to conceive of a circumstance were the Court
would allow a parent’s individual claim to be tried separately from the minor child’s claim; however, this
is the only circumstance where the factual overlap would prohibit entry of judgment until the conclusion
of both claims.

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