Roberts et al v. Smithkline Beecham Corp

Filing 66

REPORT AND RECOMMENDATIONS re 50 JOINT/VOLUNTARY MOTION to Dismiss and Incorporated Memorandum in Support of Opposed Motion for Voluntary Dismissal filed by Shelley Rebecca Roberts, Grady Rogue Roberts. IT IS RECOMMENDED the Motion for Volu ntary Dismissal GRANTED, and accordingly, that this action be DISMISSED WITHOUT PREJUDICE, conditioned on the plaintiffs stipulation that they will not seek punitive damages in Pennsylvania state court. Objections to R&R due by 2/16/2010. Signed by Magistrate Judge C Michael Hill on 1/29/10. (crt,Smith, C)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA S H E L L E Y REBECCA ROBERTS, ET AL. VERSUS S M I T H K L IN E BEECHAM CORPORATION * C I V I L NO. 09-0162 * J U D G E DOHERTY *MAGISTRATE JUDGE HILL

R E P O R T AND RECOMMENDATION Judge Doherty has referred the Motion for Voluntary Dismissal [rec. doc. 50] filed by p la in tif f s, Shelley Rebecca Roberts and Grady Roque Roberts ("the Roberts") to the u n d e rs ig n e d for Report and Recommendation. [ See rec. doc. 53]. Defendant, Smithkline B e e ch a m Corporation ("GSK") has filed Opposition, to which the Roberts have filed a R e p ly. [rec. docs. 51 and 58]. Following oral argument of the Motion, the parties filed S u p p le m e n ta l Memorandums in support of, and in opposition to, the Motion. [rec. docs. 64 an d 65]. F o r the following reasons, it is recommended that the Motion for Voluntary D is m is s a l [rec. doc. 50] be GRANTED, and accordingly, that this action be DISMISSED W I T H O U T PREJUDICE, conditioned on the plaintiffs' stipulation that they will not seek p u n itiv e damages in Pennsylvania state court. BACKGROUND T h e Roberts filed the instant action in this court on January 30, 2009, seeking d a m a g e s for personal injuries allegedly suffered as a result of GSK's negligence and w ro n g f u l conduct in manufacturing, merchandising, marketing, distribution and sale of

P a x il. More specifically, the Roberts contend that Mrs. Robert's ingestion of Paxil when s h e was pregnant caused birth defects in the Roberts' minor child, T.J.R. By this Motion, filed on September 24, 2009, the Roberts seek dismissal without p re ju d ice so that they may refile their lawsuit in the Court of Common Pleas in Philadelphia C o u n ty, Philadelphia, Pennsylvania, the venue where consolidated Paxil birth defect p ro c e e d in g s of hundreds of similar claims are pending in a mass tort program. The Roberts asse rt that their counsel, Nix and McIntyre, and defense counsel, King and Spalding, are c u rre n tly litigating other similar cases in that venue, including a case involving claims by L o u is ia n a residents, and that because of the consolidated and streamlined procedures of that c o u rt, this case may be more efficiently handled by the Pennsylvania court, with reduced lik e lih o o d of conflicting trial schedules and conflicting legal rulings, expending less time a n d resources by both the parties and the judiciary. The Roberts further assert that discovery is in its very early stages, that other than g e n e ra l depositions which have been taken by cross-notice in other cases, no case-specific d e p o s itio n s have been taken or are set in this case, and that the sole production in this case h a s consisted of sales documents required by the Case Management Order issued by the P h ila d e lp h ia court. They further assert that no counter-claims have been asserted by GSK, n o Scheduling Order has been issued by Judge Doherty in this case, no dispositive motions a re pending, and they have received no adverse decisions of this court prior to filing the in s ta n t Motion.

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F in a lly, in response to GSK's argument that should this case be refiled in P e n n s ylv a n ia , GSK will face the risk of the possible application of Pennsylvania law which p e rm its the recovery of punitive damages, the Roberts have agreed to stipulate that they will n o t seek punitive damages upon refiling this lawsuit in Pennsylvania. [rec. doc. 65]. Thus, th e Roberts contend that GSK will suffer no legal prejudice as a result of the dismissal w ith o u t prejudice of this action. G S K opposes the Motion on grounds that critical witnesses, including the plaintiffs' L o u isia n a physicians, will be outside the subpoena power of the Pennsylvania court, h in d e rin g GSK from conducting full and fair discovery, and hindering GSK's ability to p re s e n t the physician's live testimony at trial for the jury to assess the witness' credibility. Moreover, GSK asserts that it will suffer prejudice because Pennsylvania law does not p e rm it expert discovery depositions of testifying experts and the court has further required th e scheduling of the depositions of plaintiff's physicians be conducted by the plaintiff to e n su re no ex-parte communication with defense counsel. GSK further contends that discovery is not in its early stages because, in addition the c ro s s -n o tic e d depositions taken in other cases and the parties' agreement to use depositions a n d documents taken and produced in the Pennsylvania consolidated mass tort action as well a s those taken in a case pending in Oklahoma federal court, that initial disclosures, written In te rro g a to rie s, Requests for Production and Requests for Admissions have been p ro p o u n d e d in this case. Finally, GSK asserts that this case has been filed in a convenient a n d proper forum and that that transfer should not be effected for the convenience of

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p lain tiff s' counsel. In the alternative, GSK requests that in the event this court permits d ism iss a l, the dismissal should be conditioned on the plaintiff's right only to refile this a c tio n in this court. L A W AND ANALYSIS Rule 41(a)(2) provides: E x c e p t as provided in Rule 41(a)(1), an action may be dismissed at the p la in tif f 's request only by court order, on terms that the court considers proper . . . Unless the order states otherwise, a dismissal under this paragraph (2) is w ith o u t prejudice.

T h e United States Court of Appeals for the Fifth Circuit explained that, "as a general ru le, motions for voluntary dismissal should be freely granted unless the non-moving party w ill suffer some plain legal prejudice other than the mere prospect of a second lawsuit." E lb a o r v. Tripath Imaging, 279 F.3d 314, 317 (5 th Cir.2002) citing Manshack v. S o u th w e ste rn Elec. Power Co., 915 F.2d 172, 174 (5 th Cir.1990); Ikospentakis v. Thalassic S tea m sh ip , 915 F.2d 176, 177-78 (5 th Cir. 1990). The primary purpose of Rule 41(a)(2) is to " p re v e n t voluntary dismissals which unfairly affect the other side, and to permit the im p o s itio n of curative conditions." Elbaor, 279 F.3d at 317 citing Manshack, 915 F.2d at 1 7 4 and 9 C. Wright & A. Miller, Federal Practice and Procedure § 2364, at 165 (1971). Therefore, "faced with a Rule 41(a)(2) motion, the district court should first ask whether an u n c o n d itio n a l dismissal will cause the non-movant to suffer plain legal prejudice." Id.

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S u b s ta n tia l prejudice to the defendant may be shown if voluntary dismissal e f f e c tiv e ly strips the defendant of a defense that would otherwise be available. Ikospentakis, 9 1 5 F.2d at 177. At least one district court has found that clear legal prejudice may be d e m o n s tra te d if the defendant may be held liable for punitive damages in the new legal f o ru m , when such damages were not available in the original forum, analogizing this d i f f e re n c e to the loss of a defense. Wallace v. General Motors, 1996 WL 156856, *5 (E.D. L a . 1996). Moreover, where the plaintiff does not seek dismissal until a late stage and the d e f e n d a n ts have exerted significant time and effort, the district court may refuse to grant a v o lu n ta ry dismissal. Elbaor, 279 F.3d at 318 fn. 3 citing Hartford Acc. & Indem. Co. v. C o s ta Lines Cargo Services, Inc., 903 F.2d 352, 360 (5th Cir.1990). Further, one c o m m e n ta to r has noted that after the plaintiff has suffered an adverse legal decision, for e x a m p le , the grant of a motion for judgment as a matter of law, a greater showing must be m a d e to obtain the grant of a voluntary dismissal. Wallace, 1996 WL156856, at *3 citing W rig h t and Miller, 9 Federal Practice and Procedure, § 2364, pp.292-93; Manshack, 915 F .2 d at 174 (noting that the grant of a voluntary dismissal after an adverse trial court ruling c o u ld inflict legal prejudice on the defendant). However, if the plaintiff may merely obtain some tactical advantage over the d e f e n d a n t in future litigation, this advantage is not ordinarily a bar to dismissal. I k o s p e n t a k is , 915 F.2d at 178 citing Lecompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir.

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1 9 7 6 ). The loss of a federal court venue is considered a tactical advantage not warranting d e n ia l of the Motion. Wallace, 1996 WL 156856, *5 at fn. 2 citing Manshack, supra. M o re o v e r, the fact that additional expense will be incurred in relitigating issues in another f o ru m will not generally support a finding of "plain legal prejudice" and denial of a Rule 4 1 (a )( 2 ) motion to dismiss. Elbaor, 279 F.3d at 318 at fn. 3 citing Manshack, 915 F.2d at 174. If plain legal prejudice will not result from unconditional dismissal, the court should " g e n era lly, absent some evidence of abuse by the movant, grant the motion." Elbaor, 279 F .3 d at 317. If the district court concludes that granting the motion unconditionally will c a u se plain legal prejudice, it has two options, it can deny the motion outright or it can craft c o n d itio n s that will cure the prejudice. Id. at 317-318. See also Wright & Miller, supra. (n o tin g that "[t]he court will examine the possibility that any harm to the defendant may be a v o id e d by imposing terms and conditions on the dismissal."). In so doing, a court may c o n d itio n dismissal on grounds that a legal doctrine not be applied in the new venue or the d is m is s a l will be rescinded. Ikospentakis, 915 F.2d at 180 fn. 4 citing McCall-Bey v. F r a n z e n , 777 F.2d 1178, 1184 (7 th Cir. 1985). T h e grant or denial of a Rule 41(a)(2) Motion for Voluntary Dismissal is within the d is c re tio n of the court. Elbaor, 279 F.3d at 317. The following factors are considered by an a p p e lla te court when "determining whether a district court abused its discretion in denying a R u le 41(a)(2) motion: (1) the defendant's effort and the expense involved in preparing for

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tria l, (2) excessive delay and lack of diligence on the part of the plaintiff in prosecuting the a c tio n , (3) insufficient explanation of the need to take a dismissal, and (4) the fact that a m o tio n for summary judgment has been filed by the defendant." Id. at 317 fn. 3 citing W itz m a n v. Gross, 148 F.3d 988, 992 (8 th Cir. 1998). In light of the above legal principles, it is clear that GSK will not suffer "plain legal p re ju d ice " as a result of this court's grant of the Roberts' Motion for Voluntary Dismissal, p a rticu lar ly given their offer to stipulate that they will not seek punitive damages in P e n n s ylv a n ia state court. The undersigned gives little weight to GSK's argument that it will be prejudiced by its alleged difficulty in obtaining the depositions of plaintiff's prescribing and treating p h ys ic ia n s, or that it will be unable to present them live at trial. By its own admission, GSK a c k n o w le d g e s that there is a procedure for obtaining a commission to request issuance of a s u b p o e n a , and as noted by the Roberts, there is also a procedure for obtaining an open c o m m is s io n for this purpose. These procedures are routinely utilized, and, according to the R o b e rts ' counsel, these procedures are currently being utilized by defense counsel involved in the Pennsylvania mass tort action to take the depositions of the various plaintiffs' treating p h ys ic ia n s all over the country. Furthermore, while GSK may not be able to compel live testimony of the Roberts' trea tin g physicians at trial, that is of little consequence, given that medical depositions are p rim a rily presented by videotaped deposition, a form of presentation which allows the trier

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o f fact to view the witness' demeanor and make credibility determinations. Finally, the alleged inability to obtain expert discovery depositions works no undue h a rd s h ip on GSK, given that the rule is equally applicable to the plaintiffs. Furthermore, the te le p h o n e discovery conferences conducted by the undersigned in this and the related case p e n d in g before this court, reveals that several of the testifying experts have already been d e p o s e d on cross-noticed depositions issued in other cases. [See rec. doc. 27 and 31; Boutte v . GSK, 6:08cv721 (W.D. La.) rec. docs. 63 and 67]. Furthermore, the undersigned is aware o f no authority finding that the inability to take a discovery deposition constitutes "plain lega l prejudice." To the contrary, it would appear that such inability constitutes no more th a t the loss of a tactical advantage, which does not warrant denial of the Roberts' Motion. See Ikospentakis, 915 F.2d at 178 citing Lecompte, 528 F.2d at 604. T h e undersigned is equally unimpressed by GSK's assertion that the Pennsylvania c o u rt, where the mass tort action remains pending, is a less convenient forum than this fe d era l district court. As noted by counsel for the Roberts, both they and GSK's counsel are c u r re n t ly involved in litigation pending in the Pennsylvania state court. It makes little sense f o r counsel to duplicate their efforts in this court. Moreover, it is certainly advantageous f o r a single court to coordinate discovery in this and the other numerous Paxil birth defect c a se s. Additionally, allowing this case to be adjudicated in the Pennsylvania court, along w ith the hundreds of other cases currently pending there, will avoid potential scheduling c o n f lic ts for counsel and will preclude the issuance of conflicting decisions between this and

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th e Pennsylvania court on the same or substantially similar issues. Indeed, several s c h e d u lin g issues had to be addressed during the discovery conferences held before the u n d e rs ig n e d judge to accommodate counsel. Furthermore, there is no need to waste judicial re so u rc e s by permitting analogous litigation to proceed before separate courts. Finally, the lo s s of this federal venue does not warrant denial of the Roberts' Motion as GSK suggests. Wallace, 1996 WL 156856, *5 at fn. 2 citing Manshack, supra. The Roberts have not waited until a late stage in this proceeding to seek dismissal. To the contrary, this action is in its early stages. There is no Scheduling Order currently in e f f e c t and no trial date has been set. Furthermore, while this court's docket reflects some a c tiv ity, there has been no real motion practice before this court; there have been no d isp o sitiv e or any significant rulings issued by this court, much less any ruling which could b e construed as adverse to the Roberts. Despite GSK's protestations to the contrary, it a p p e ars to the undersigned that GSK has not exerted significant time and effort into the d e f en s e of this action. While routine written discovery has been propounded and d e p o sitio n s have been cross-noticed in other cases, there has been no case specific d e p o s itio n s taken in this case. Moreover, the same written discovery would have been propounded and responded to r e g a rd l e ss of the court in which the action was pending. Given the parties' agreement to use d ep o sition s and documents taken and produced in the Pennsylvania consolidated mass tort a c tio n and a case pending in Oklahoma federal court, it appears that the discovery obtained in this case can likewise be used when the case is refiled in Pennsylvania. Even if 9

a d d itio n a l expense would be incurred in relitigating discovery issues in the Pennsylvania forum, which appears unlikely, such expense would not support a finding of "plain legal p re ju d ic e " warranting denial of the instant Rule 41(a)(2) Motion. Elbaor, 279 F.3d at 318 at f n . 3 citing Manshack, 915 F.2d at 174, supra. All of these reasons additionally militate in f a v o r of the grant of a voluntary dismissal. See Elbaor, 279 F.3d at 318 fn. 3 citing Hartford., 903 F.2d at 360, supra. Indeed, the sole basis which may have justified a finding of "plain legal prejudice" w a rra n tin g denial of the instant Motion, the potential for recovery of punitive damages, is no lo n g e r an issue. The Roberts have agreed to stipulate that they will not seek punitive d a m a g e s upon refiling this case in Pennsylvania state court. [rec. doc. 65]. For the above reasons, the undersigned cannot find that the voluntary dismissal of th is action will cause GSK to suffer "plain legal prejudice." Accordingly, the undersigned f in d s that the Motion for Voluntary Dismissal should be granted. H o w e v e r, while the undersigned does not find that "plain legal prejudice" will result f ro m the unconditional dismissal of this action, this court is authorized to craft conditions th a t will cure any potential prejudice to GSK. Elbaor, 279 F.3d at 317; Wright & Miller, s u p r a . Therefore, to avoid and prevent the possibility of any harm to GSK as a result of the as of yet unresolved punitive damage issue, the undersigned recommends that this court c o n d itio n its dismissal on the plaintiffs' stipulation not to seek punitive damages in P e n n s ylv a n ia state court. See Ikospentakis, 915 F.2d at 180 fn.5 citing McCall-Bey, 777

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F .2 d at 1184, supra. CONCLUSION F o r the reasons stated above, IT IS RECOMMENDED the Motion for Voluntary D is m is s a l [rec. doc. 50] be GRANTED, and accordingly, that this action be DISMISSED W I T H O U T PREJUDICE, conditioned on the plaintiffs' stipulation that they will not seek p u n itiv e damages in Pennsylvania state court. Failure to file written objections to the proposed factual findings and/or the p r o p o se d legal conclusions reflected in this Report and Recommendation within fo u r te e n (14) days following the date of its service, or within the time frame authorized b y F.R.C.P. 6(b), shall bar an aggrieved party from attacking either the factual fin d in g s or the legal conclusions accepted by the District Court, except upon grounds o f plain error. Douglass v. United Services Automobile Association, 79 F.3d. 1415 (5th C ir. 1996). C o u n s e l are directed to furnish a courtesy copy of any objections or responses to the D is tric t Judge at the time of filing. S ig n e d this 29 th day of January, 2010, at Lafayette, Louisiana.

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