Friend et al v. Abbvie, Inc. et al

Filing 17

ORDER DENYING with leave to refile, Defendants' Motion for Summary Judgment Based on Lack of Proximate Causation Evidence 12 . Each of the identified cases are cleared for fact and expert discovery related to causation. With the exception of th e Stampley case, the parties shall have until September 1, 2018 to complete the limited discovery. Defendants' renewed summary judgment motions shall be due on or before October 6, 2018. Signed by Judge Nancy J. Rosenstengel on 9/28/2017. (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.

)
)
)
)
)
)
)
)
)
)
)
)

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

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Pending before the Court are multiple Motions for Summary Judgment Based on
Lack of Proximate Causation Evidence filed by Abbott.1 The motions, responses, and replies
are all substantively identical; thus, the Court issues one omnibus Order addressing the
issue. References to the docket in this Memorandum and Order will be to Case No.
12-CV-53, unless otherwise specified. For the reasons set forth below, the Motions for
Summary Judgment are denied with leave to refile.
BACKGROUND
Plaintiffs in this mass action allege that they suffered serious birth defects as a direct
result of exposure to Depakote.2 The exposure for each Plaintiff is alleged to have occurred

The Motions for Summary Judgment (collectively “Motions”) are: Case No. 12-CV-53, Doc. 107; Case No.
12-CV-54, Doc. 95; Case No. 12-CV-55, Doc. 114; Case No. 12-CV-57, Doc. 113; Case No. 12-CV-57, Doc. 114;
Case No. 12-CV-57, Doc. 117; Case No. 12-CV-57, Doc. 118; Case No. 12-CV-163, Doc. 85; Case No. 12-CV-1216,
Doc. 55; Case No. 16-CV-307, Doc. 12; and Case No. 16-CV-463, Doc. 16.
2 “Depakote” refers to Abbott’s group of prescription drugs with the basic active ingredient valproic acid.
Depakote is also sometimes referred to by the chemical names “valproic acid,” “valproate,” or “divalproex
sodium.” Depakote is an anti-epilepsy drug (“AED”) that has been marketed by Abbott in the United States in
some form since 1978.
1

Page 1 of 6

in utero after his or her biological mother ingested Depakote during pregnancy. Plaintiffs
contend that Defendants3 failed to warn Plaintiffs’ biological mothers of the real risk of birth
defects, even though Defendants knew or reasonably should have known of the true risks.
The Court has jurisdiction over the Depakote mass action and all of the individual
claims via diversity jurisdiction, including expanded diversity jurisdiction under 28 U.S.C.
§ 1332(d)(11)(B)(i), also known as the Class Action Fairness Act (“CAFA”). See (Case No.
12-CV-52, Doc. 667) (dismissing several Plaintiffs for lack of subject matter jurisdiction, as
they failed to properly plead typical diversity jurisdiction or invoke CAFA).
Pursuant to Federal Rule of Civil Procedure 42, the Court ordered the consolidation
of all of the Depakote cases. (Case No. 12-CV-52, Doc. 589). To properly manage the vast
number of claims, discovery has been stayed in all of the Depakote cases until authorized by
the Court. Common throughout all of the cases subject to the motions now being considered,
the Court has partially lifted the discovery moratorium and ordered the deposition of the
key prescribing physician. See (Case No. 12-CV-52, Docs. 485; 653). Based on the information
gained from the limited discovery, Abbott identified each case where the prescribing
physician is dead, cannot be located, or otherwise cannot be deposed.
Abbott contends that because the prescribing physician is dead, cannot be located, or
otherwise cannot be deposed, Plaintiffs are unable to meet the burden of proving proximate
causation. Plaintiffs assert that the current motions should be denied because (1) the heeding
presumption shifts the burden onto Defendants; or (2) the limited discovery conducted
renders the motions premature. The relevant factual basis of each of Abbott’s Motions is
identical and undisputed, i.e., the key prescribing physician is dead, cannot be located, or
In 2013, Defendant Abbott Laboratories, Inc. split off part of its business, including the rights to Depakote, into
a separate publicly traded company, Abbvie, Inc. Accordingly, Plaintiffs filing claims after 2013 have included
both Abbott and Abbvie as defendants in the litigation.
3

Page 2 of 6

otherwise cannot be deposed. As discussed below, the denial of the motions is based on a
lack of completed relevant discovery, an issue common to each case.
LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014) (quoting FED R. CIV. P.
56(a)). Once the moving party has set forth the basis for summary judgment, the burden then
shifts to the nonmoving party, who must go beyond mere allegations and offer specific facts
showing that there is a genuine issue of fact for trial. FED R. CIV. P. 56(e); see Celotex Corp. v.
Catrett, 477 U.S. 317, 232-24 (1986).
The nonmoving party must offer more than “[c]onclusory allegations, unsupported
by specific facts,” to establish a genuine issue of material fact. Payne v. Pauley, 337 F.3d 767,
773 (7th Cir. 2003) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)). In
determining whether a genuine issue of fact exists, the Court must view the evidence and
draw all reasonable inferences in favor of the party opposing the motion. Bennington v.
Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). A “court may not assess the credibility of witnesses, choose between
competing inferences or balance the relative weight of conflicting evidence . . . .” Reid v.
Neighborhood Assistance Corp. of America, 749 F.3d 581, 586 (7th Cir. 2014) (quoting Abdullahi v.
City of Madison, 423 F.3d 763, 769 (7th Cir. 2005)).
Finally, summary judgment should not “be entered until the party opposing the
motion has had a fair opportunity to conduct such discovery as may be necessary to meet
the factual basis for the motion.” Ill. State Emps. Union, Council 34, Am. Fed’n. of State, Cnty. &

Page 3 of 6

Municipal Emps., AFL-CIO, an unincorporated labor org., et al. v. Lewis, 473 F.2d 561, 565 (7th Cir.
1972); see also Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996) (summary judgment
should not be granted when a “restrictive limitation” on discovery prevented the
nonmoving party from “making the showing necessary to defeat summary judgment.”).
DISCUSSION
Abbott asserts that because the prescribing physician is dead, cannot be located, or
otherwise cannot be deposed, Plaintiffs’ claims must fail as a matter of law. Assuming
without deciding that Abbott is correct,4 the motions are premature. The limited discovery
thus far authorized by the Court means that Plaintiffs have not “had a fair opportunity to
conduct such discovery as may be necessary to meet the factual basis for the motion.” Ill.
State Emps. Union, 473 F.2d 561, 565.
Abbott cites many cases in support of its assertion that an unavailable doctor requires
summary judgment in defendants’ favor. (Doc. 95, p. 4-5). Notably, however, each case cited
by Abbott (with two exceptions) was in a different procedural posture than these cases, i.e.,
fact discovery concluded before the defendants filed for summary judgment. E.g., Thompson
v. Zimmer Inc., 2013 WL 5406628 (D. Minn. 2013); In re Zyprexa Prod. Liab. Litig., 2009 WL
3596982 (E.D. N.Y. Oct. 20, 2009); Gronniger v. Am. Home Prod. Corp., 2005 WL 3766685 (Pa.
Com. Pl. Oct. 21, 2005); Anderson v. Wyeth, 2005 WL 1383174 (Pa. Com. Pl. June 7, 2005);
Leffler v. Am. Home Prod. Corp., 2005 WL 2999712 (Pa. Com. Pl. Oct. 20, 2005); Adams v. Wyeth,
2005 WL 1528656 (Pa. Com. Pl. June 13, 2005); In re Mentor Corp. Obtape Transoburator Slive
Abbott asserts that (a) the proximate cause evidence must show that the prescribing physicians: (1) did not use
Depakote just as it would have been used if Abbott had given additional birth defect warnings; (2) did not
already believe, during the relevant time period in this case, that Depakote was the most teratogenic AED
available and should only be used after alternative treatments had failed; and/or (3) otherwise “would have
done something differently” had the prescribing physician(s) “heeded the warning[s]” advocated by Plaintiffs
(Doc. 95, p. 8); and (b) that proximate cause cannot be shown through “expert witnesses’ speculat[ion] about
how, if at all, a prescribing physician would have acted differently had different warnings been provided” (Doc.
95, p. 6).

4

Page 4 of 6

Prod. Liab. Litig., 2016 WL 4611572 (M.D. Ga. Sept. 2, 2016); Kapps v. Biosense Webster, Inc., 813
F. Supp. 2d 1128 (D. Minn. 2011); and Blyth v. GlaxoSmithKline, 2010 WL 5676311 (Pa. Com.
Pl. Dec. 14, 2010). The remaining two cases present either a factually distinguishable
circumstance or the procedural posture of the case is unclear.5
Relevant discovery is clearly not closed in these cases. Indeed, until recently,
discovery was not authorized without express approval of the Court. While Abbott contends
that “Plaintiffs, as a matter of law, cannot meet their burden of production of proximate
cause evidence” (Doc. 95, p. 9), such a conclusion is premature given the incredibly limited
scope of discovery that has been authorized by the Court. The discovery moratorium
imposed by the Court as a case management tool is a “restrictive limitation” on discovery
that prevented the nonmoving party from “making the showing necessary to defeat
summary judgment.” Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996). While the
path to survive summary judgment seems exceptionally narrow in these cases, at this
juncture the Court cannot conclusively hold that additional discovery would be unlikely to
produce facts needed to withstand summary judgment. See, e.g., Netto v. Amtrak, 863 F.2d
1210 (5th Cir. 1989).
CONCLUSION
Accordingly, Defendants’ Motions for Summary Judgment are DENIED with leave
to refile. This Order is applicable to the following Motions: Case No. 12-CV-53, Doc. 107;
Case No. 12-CV-54, Doc. 95; Case No. 12-CV-55, Doc. 114; Case No. 12-CV-57, Doc. 113; Case

The case of In re Accutane Litigation, presents an unclear picture of the procedural posture of the litigation
before summary judgment. 2016 WL 5958374 (N.J. Super. Ct. Law Div. Oct 12, 2016). Whereas, Sauls v. Wyeth
Pharms. Inc., 846 F. Supp. 2d 499 (D. S.C. 2012), presents a factually distinguishable circumstance from the
instant cases. Compare, Sauls 846 F. Supp. 2d 499, 503 (D. S.C. 2012) (“[Plaintiff] acknowledges the lack of any
affirmative evidence suggesting that Dr. Bennett would have altered his prescription decision if the hormone
therapy medications were accompanied by an adequate warning.”) with (Doc. 110-1) (The Declaration of Phillip
Sampson, articulating factual and expert discovery that may result in sufficient causation evidence).
5

Page 5 of 6

No. 12-CV-57, Doc. 114; Case No. 12-CV-57, Doc. 117; Case No. 12-CV-57, Doc. 118; Case No.
12-CV-163, Doc. 85; Case No. 12-CV-1216, Doc. 55; Case No. 16-CV-307, Doc. 12; and Case
No. 16-CV-463, Doc. 16.
Each of the identified cases are cleared for fact and expert discovery related to
causation. The parties shall have until September 1, 2018 to complete the limited discovery.6
Defendants’ renewed summary judgment motions shall be due on or before October 6, 2018.
IT IS SO ORDERED.
DATED: September 28, 2017
___________________________
NANCY J. ROSENSTENGEL
United States District Judge

On February 16, 2017, the Stampley case was selected as part of the next batch of cases to be tried in the
Depakote litigation. (Case No. 12-CV-52, Doc. 808, p. 6). Accordingly, full discovery shall proceed on or before
the December 29, 2017 deadline. Defendants shall have until January 19, 2018 to file their renewed motion for
summary judgment. Plaintiffs’ response shall be due on or before February 9, 2018.
6

Page 6 of 6