Thomas v. Takeda Pharmaceuticals USA, Inc. et al

Filing 16

ORDER DENYING TRANSFER re: pldg. ( 1 in MDL No. 2757) The motion to transfer, pursuant to 28 U.S.C. 1407, is DENIEDSigned by Judge Sarah S. Vance, Chair, PANEL ON MULTIDISTRICT LITIGA TION, on 2/2/2017. Associated Cases: MDL No. 2757, CAE/1:16-cv-01566, ILS/3:16-cv-00493, KS/2:16-cv-02605, LAM/3:16-cv-00686, LAW/6:16-cv-01444, MOW/4:16-cv-01106, MOW/6:16-cv-03417, NJ/2:16-cv-05143, NJ/2:16-cv-05523, NYE/1:16-cv-02934, NYE/1:16-cv-04801, NYN/5:16-cv-01243, OHS/2:16-cv-00894, TNW/2:16-cv-02549, WVS/1:16-cv-07910 (dn)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: PROTON-PUMP INHIBITOR
PRODUCTS LIABILITY LITIGATION

MDL No. 2757

ORDER DENYING TRANSFER

Before the Panel: Plaintiffs in six actions1 move to centralize fifteen actions in the Middle
District of Louisiana (or, in the alternative, the District of New Jersey, the Southern District of
Illinois, the District of Kansas, or the Western District of Louisiana). The fifteen actions are listed
on the attached Schedule A. The Panel has been informed of an additional 24 related federal actions.
All responding plaintiffs support centralization, although there is some disagreement
concerning an appropriate transferee district. Some plaintiffs support the Middle District of
Louisiana as their first choice, while others argue for the Southern District of Illinois, the Western
District of Louisiana, or the District of New Jersey.2 All responding defendants oppose
centralization.3 If the Panel orders centralization over their objections, then defendants argue for
selection of the Central District of California as transferee district.4
On the basis of the papers filed and the hearing session held, we deny plaintiffs’ motion. We
recognize that these actions share certain factual issues. These issues arise from plaintiffs’
allegations that taking proton pump inhibitors (PPIs) may result in various types of kidney injury,

1

The six actions are Eastern District of California Thomas, Middle District of Louisiana
Davis, Western District of Louisiana Modicue, Western District of Missouri Foster and Ratshidaho,
and Northern District of New York Hornfeck.
2

Like moving plaintiffs, most responding plaintiffs support one or more other districts in
the alternative, including the Southern District of Illinois, the District of Kansas, the Middle District
of Louisiana, the Western District of Louisiana, the District of New Jersey, and the Southern District
of Ohio.
3

Responding defendants are AstraZeneca Pharmaceuticals LP, AstraZeneca LP, and
McKesson Corporation (collectively AstraZeneca); Takeda Pharmaceuticals U.S.A., Inc., Takeda
Pharmaceuticals International, Inc., Takeda Development Center America, Inc., Takeda California,
Inc., and Takeda Pharmaceuticals America, Inc. (collectively Takeda); The Procter & Gamble
Company (P&G); and Pfizer Inc. (Pfizer).
4

Delaware.

In the alternative, AstraZeneca and Takeda advocate centralization in the District of

-2including acute interstitial nephritis (AIN), chronic kidney disease, end stage renal disease, and
kidney failure. Several considerations, however, fatally undercut the case for centralization.
First, the named defendants vary from action to action. Although AstraZeneca is sued in
most of the actions (14 constituent actions and 23 tag-alongs), P&G is sued in only eight, Takeda
in four, and Pfizer in two. Centralization thus appears unlikely to serve the convenience of most,
if not all, defendants and their witnesses. See, e.g., In re: Ambulatory Pain Pump-Chondrolysis
Prods. Liab. Litig., 709 F. Supp. 2d 1375 (J.P.M.L. 2010) (denying centralization of 102 actions, in
part because most, if not all, defendants were named “in only a minority of actions,” and several
were sued in “but a handful”); In re: Table Saw Prods. Liab. Litig., 641 F. Supp. 2d 1384, 1385
(J.P.M.L. 2009) (denying centralization of 42 actions, where, inter alia, no defendant was sued in
all actions, and several entities were named in, at most, two or three).
Second, the various defendants are competitors. We are “typically hesitant to centralize
litigation against multiple, competing defendants which marketed, manufactured and sold similar
products.” In re: Yellow Brass Plumbing Component Prods. Liab. Litig., 844 F. Supp. 2d 1377,
1378 (J.P.M.L. 2012). Centralizing competing defendants in the same MDL likely would complicate
case management due to the need to protect trade secret and confidential information. See, e.g., In
re: Watson Fentanyl Patch Prods. Liab. Litig., 883 F. Supp. 2d 1350, 1351 (J.P.M.L. 2012). In
addition, a multi-defendant MDL “may prolong pretrial proceedings, because of, inter alia, the
possible need for separate discovery and motion tracks, as well as the need for additional bellwether
trials.” In re: Invokana (Canagliflozin) Prods. Liab. Litig., — F. Supp. 3d —, 2016 WL 7221425,
at *2 (J.P.M.L. Dec. 7, 2016).
Third, a significant amount of the discovery in these actions appears almost certain to be
defendant-specific. Although all the subject drugs are PPIs, they are not identical. Some are
available by prescription only, whereas others are sold over-the-counter. Each has a unique
development, testing, and marketing history, and each was approved by the FDA at different times.5
For example, Prilosec (omeprazole) and Prevacid (lansoprazole) have been on the market since 1989
and 1995, respectively, whereas Nexium (esomeprazole magnesium) was approved by the FDA in
2001. Further, the variety of kidney injuries alleged, combined with these differences among the
drugs, significantly undermines any efficiency gains to be achieved from centralization

5

In October 2014, the Food and Drug Administration, in response to a petition filed by
Public Citizen, required consistent labeling regarding the risk of AIN on all prescription PPIs. The
FDA noted that “the prescription PPI labeling should be consistent with regard to this risk,” and that
“there is reasonable evidence of a causal association.” The FDA, however, denied the petition with
respect to over-the-counter PPIs.

-3Finally, although plaintiffs almost guarantee that the number of involved actions will increase
by the hundreds if not thousands,6 the Section 1407 motion presently encompasses just fifteen cases
and 24 tag-alongs.7 The Panel previously has been “disinclined to take into account the mere
possibility of future filings in [its] centralization calculus.” In re: Lipitor (Atorvastatin Calcium)
Mktg., Sales Practices & Prods. Liab. Litig., 959 F.Supp.2d 1375, 1376 (J.P.M.L. 2013). Such
caution is warranted here, given that the first PPI came to market more than two decades ago and the
drugs have been taken by millions of Americans.
IT IS THEREFORE ORDERED that the motion for centralization of these actions is denied.

PANEL ON MULTIDISTRICT LITIGATION

Sarah S. Vance
Chair
Marjorie O. Rendell
Lewis A. Kaplan
R. David Proctor

Charles R. Breyer
Ellen Segal Huvelle
Catherine D. Perry

6

In their principal brief (filed October 17, 2016), moving plaintiffs stated that they
“anticipate[d]” that “nearly 100 PPI cases will be filed in the coming weeks and the number of filed
cases will increase by the hundreds in the coming months.” Mem. in Supp. of Pls.’ Mot. for
Transfer, at 1-2 (ECF No. 1-1).
7

At oral argument, various counsel referred to the pendency of approximately 100 related
federal actions total. The Panel takes this opportunity to remind counsel of their obligations under
Panel Rule 6.2(d) (“Any party or counsel in a new group of actions under consideration for transfer
under Section 1407 shall promptly notify the Clerk of the Panel of any potential tag-along actions
in which that party is also named or in which that counsel appears.”) (emphasis added).

IN RE: PROTON-PUMP INHIBITOR
PRODUCTS LIABILITY LITIGATION

MDL No. 2757

SCHEDULE A

Eastern District of California
THOMAS v. TAKEDA PHARMACEUTICALS USA, INC., ET AL.,
C.A. No. 1:16-01566
Southern District of Illinois
MASON v. ASTRAZENECA PHARMACEUTICALS LP, ET AL.,
C.A. No. 3:16-00493
District of Kansas
KOON v. ASTRAZENECA PHARMACEUTICALS LP, ET AL., C.A. No. 2:16-02605
Middle District of Louisiana
DAVIS v. ASTRAZENECA PHARMACEUTICALS LP, ET AL., C.A. No. 3:16-00686
Western District of Louisiana
MODICUE v. ASTRAZENECA PHARMACEUTICALS L P, ET AL.,
C.A. No. 6:16-01444
Western District of Missouri
FOSTER v. ASTRAZENECA PHARMACEUTICALS LP, ET AL.,
C.A. No. 4:16-01106
RATSHIDAHO v. ASTRAZENECA LP, ET AL., C.A. No. 6:16-03417
District of New Jersey
GOODSTEIN v. ASTRAZENECA PHARMACEUTICALS LP, ET AL.,
C.A. No. 2:16-05143
SPRATT v. ASTRAZENECA PHARMACEUTICALS LP, ET AL.,
C.A. No. 2:16-05523

- A2 MDL No. 2757 Schedule A (Continued)
Eastern District of New York
BUZBEE v. ASTRAZENECA PHARMACEUTICALS LP, ET AL.,
C.A. No. 1:16-02934
MULLEN v. ASTRAZENECA PHARMACEUTICALS LP, ET AL.,
C.A. No. 1:16-04801
Northern District of New York
HORNFECK v. ASTRAZENECA PHARMACEUTICALS LP, ET AL.,
C.A. No. 5:16-01243
Southern District of Ohio
BURNETT v. ASTRAZENECA PHARMACEUTICALS LP, ET AL.,
C.A. No. 2:16-00894
Western District of Tennessee
BOWERS v. ASTRAZENECA PHARMACEUTICALS LP, ET AL.,
C.A. No. 2:16-02549
Southern District of West Virginia
CHURCH, ET AL. v. ASTRAZENECA PHARMACEUTICALS LP, ET AL.,
C.A. No. 1:16-07910