Baker v. Boehringer Ingelheim Pharmaceuticals, Inc. et al

Filing 7

ORDER denying 6 Sealed Motion to Stay. Signed by Judge David R. Herndon on 1/8/2015. (dsw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
______________________________________________________________________________
IN RE PRADAXA
)
MDL No. 2385
(DABIGATRAN ETEXILATE) )
3:12-md-02385-DRH-SCW
PRODUCTS LIABILITY
)
Judge David R. Herndon
LITIGATION
)
______________________________________________________________________________
This Document Relates to:
ALL CASES
Baker v. Boehringer Ingelheim
Pharmaceuticals, Inc. et al.,
No. 3:14-cv-50355-DRH-SCW1
CASE MANAGEMENT ORDER NUMBER 89
Denying Motion to Stay and
Prohibiting Discovery Relating to Common Benefit Fee Determination

HERNDON, District Judge:
On December 23, 2014, the law firm of Carey Danis & Lowe (CDL) filed a
motion (Baker v. Boehringer Ingelheim Pharmaceuticals, Inc. et al., No. 3:14-cv50355-DRH-SCW (Doc. 6) asking the Court to stay its ruling on the Special
Master’s Report and Recommendations on the Distribution of Common Benefit
Fees and Expenses (MDL 2385 Doc. 601). CDL contends that a stay is warranted
because CDL is conducting discovery regarding the distribution of Common
Benefit Fees and Expenses. CDL states that it has served Requests for Production

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Movant is not authorized to file papers in the master case. Accordingly, although the motion is
related to all cases, the motion was filed in the above captioned member action (Baker v.
Boehringer Ingelheim Pharmaceuticals, Inc. et al., No. 3:14-cv-50355-DRH-SCW). As this order
addresses the motion filed in the Baker member action and relates to all cases, this order is filed
simultaneously in both the master docket and the Baker member action.

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and is in the process of serving Subpoenas upon Plaintiffs’ Liaison Counsel and
Plaintiffs’ Co-Lead Counsel. CDL further submits that the Court should adopt the
procedure undertaken by Judge Fallon in the Vioxx MDL (In re: Vioxx Products
Liability Litigation, MDL No. 1657 (E.D. La., J. Fallon)). In Vioxx, Judge Fallon
allowed objectors to conduct extensive discovery regarding allocation of the
common benefit fund. See In re Vioxx, MDL No. 1657, Doc. 63195, pp. 20-21
(E.D. La. Aug. 9, 2011).
CDL is putting the cart before the horse. CDL asks the Court to adopt the
procedure undertaken by Judge Fallon and allow those who object to the Special
Master’s Report and Recommendation to conduct extensive discovery. However, it
is clear that CDL is already proceeding with conducting discovery – a process the
Court has not approved and has no intention of approving.
Allocation of attorney fees under the common benefit fund is a matter that
rests within the sound discretion of the trial court. See Lock Realty Corp. IX v.
U.S. Health, LP, 707 F.3d 764, 773 (7th Cir. 2013); Johnson v. GDF, Inc., 668
F.3d 927, 931 (7th Cir. 2012).2 Appellate review “of an award of attorneys' fees is
deferential for a number of reasons: the district court has a more complete
picture of the case as a whole; the issues tend to be factual matters for which
appellate review is limited; the accuracy of the ultimate decision is not likely to be
enhanced by frequent and detailed appellate review; and it would be wasteful to

2

However, a district court’s legal analysis and methodology are reviewed de novo. Johnson v.
GDF, Inc., 668 F.3d 927, 931 (7th Cir. 2012).

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engage in a ‘second major litigation’ over attorneys' fees.” Lock Realty Corp. IX,
707 F.3d at 773.
The Manual for Complex Litigation, Fourth, provides as follows with
regard to discovery in connection with fee motions:
Discovery in connection with fee motions should rarely be permitted,
but may be advisable where attorneys make competing claims to a
settlement fund designated for the payment of fees. With appropriate
guidelines and ground rules, the materials submitted should
normally meet the needs of the court and other parties. If a party or
an objector to a settlement requests clarification of the material
submitted in support of the fee motion, or requests additional
material, the court should determine what information is genuinely
needed and arrange for its informal production.
Manual for Complex Litigation, Fourth § 14.224. The Court finds that it has
imposed appropriate guidelines and ground rules with regard to the common
benefit fee determination. CDL has not presented the Court with any reason to
doubt the methodology that has been employed, conclude that informal or formal
discovery is genuinely needed, or doubt the billing information that has been
provided to date. Accordingly, the Court sees no reason to depart from the
principle that discovery in connection with fee motions should rarely be
permitted.
In so holding, the Court finds the Eighth Circuit’s opinion in In re
Genetically Modified Rice Litigation, 764 F.3d 864 (8th Cir. 2014) instructive.
Here, the Appellate Court concluded that the procedure employed by the district
court, which did not include discovery, was not an abuse of discretion. In so
holding, the Eighth Circuit stated as follows:
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Here, by contrast, the court appointed a Special Master to review the
fee request, and the Special Master invited and considered the
objections of plaintiffs' attorneys, met with the parties, and reviewed
the affidavits submitted by Lead Counsel and other common benefit
attorneys. Although the court did not appoint an external auditor or
permit discovery, discovery in connection with fee motions is rarely
permitted, and a request for attorney's fees should not result in a
second major litigation. We cannot say that the procedures
employed by the district court were an abuse of discretion.
Id. at 872 (internal citations omitted) (emphasis added).
With the above principles in mind, the Court finds that discovery is not
genuinely needed. To the extent that CDL is seeking discovery in relation to the
common benefit fee determination, that request is DENIED. The Court finds no
reason to conduct a second major litigation with regard to this matter and
accordingly is prohibiting the discovery CDL seeks. As the only grounds for the
motion to stay is discovery that is prohibited by this order, the motion to stay is
DENIED.
IT IS SO ORDERED.
Signed this 8th day of January, 2015.

David R.
Herndon
2015.01.08
16:06:50 -06'00'
District Judge
United States District Court

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