Moss et al v. Eli Lilly and Company

Filing 10

ORDER DENYING TRANSFER re: pldg. (7 in ALM/3:14-cv-01135, 7 in CAC/2:14-cv-08527, 7 in CAC/5:14-cv-01662, 7 in CAC/5:14-cv-01663, 7 in CAC/5:14-cv-01675, 7 in CAC/8:14-cv-01274, 7 in CAE/1:14-cv-01265, 7 in CAE/2:14-cv-01890, 7 in CAE/2:14-cv-02811 , 7 in CAE/2:14-cv-02914, 7 in CAE/2:14-cv-03004, 7 in CAS/3:14-cv-01882, 6 in CO/1:14-cv-02249, 6 in CO/1:14-cv-02800, 8 in FLM/6:14-cv-01286, 7 in FLM/6:14-cv-01816, 7 in FLM/8:14-cv-02792, 7 in FLM/8:14-cv-02876, 7 in GAN/1:14-cv-02564, 7 in INS/1 :15-cv-00141, 7 in INS/1:15-cv-00351, 7 in INS/1:15-cv-00365, 7 in INS/1:15-cv-00531, 6 in INS/1:15-cv-00643, 7 in INS/1:15-cv-00700, 7 in INS/1:15-cv-00701, 6 in INS/1:15-cv-00922, 7 in LAW/1:14-cv-02469, 7 in MD/8:14-cv-02554, 13 in MDL No. 2662, 7 in ME/1:14-cv-00438, 6 in MN/0:14-cv-03132, 7 in MSN/1:15-cv-00006, 6 in NCE/5:14-cv-00460, 6 in NCM/1:14-cv-00682, 7 in NH/1:14-cv-00540, 7 in NV/2:14-cv-01988, 7 in PAW/2:14-cv-01084, 6 i n TNE/3:14-cv-00491, 6 in TXS/4:14-cv-02960, 6 in WAE/2:14-cv-00270, 6 in WIW/3:14-cv-00555) The motion to transfer, pursuant to 28 U.S.C. 1407, is DENIEDSigned by Judge Sarah S. Vance, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 10/9/2015. Associated Cases: MDL No. 2662 et al. (JG)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: CYMBALTA (DULOXETINE)
PRODUCTS LIABILITY LITIGATION (NO. II)

MDL No. 2662

ORDER DENYING TRANSFER

Before the Panel:* Plaintiffs in two actions (Beard and Courtney) pending in the Southern
District of Indiana move under 28 U.S.C. § 1407 to centralize 41 actions in that district.1 The
actions, which are listed on the attached Schedule A, are pending in a total of 22 districts. Plaintiffs
in the other 39 actions did not respond to the motion. Common defendant Eli Lilly and Company
(Lilly) opposes centralization.
I.
The complaints in these 41 personal injury actions are substantially similar. Plaintiffs allege
that they suffered a wide variety of withdrawal symptoms – including, inter alia, “brain zaps,”
memory lapses, suicidal thoughts, increased anxiety, stomach cramping, insomnia, nausea, and
dizziness – after discontinuing use of Cymbalta, a Lilly prescription drug used to treat depression,
generalized anxiety disorder, diabetic peripheral neuropathic pain, fibromyalgia, and chronic
musculoskeletal pain. Plaintiffs contend that at all relevant times, Lilly has known or should have
known of the significantly increased risk of withdrawal symptoms posed by Cymbalta, but has failed
to warn of that risk adequately.
This litigation is before us for a second time. At our December 2014 hearing session, we
denied a motion for centralization of 25 Cymbalta cases (eighteen of which also are included in the
present motion). See In re: Cymbalta (Duloxetine) Prods. Liab. Litig. (Cymbalta I), 65 F. Supp. 3d
1393 (J.P.M.L. 2014). At the time of the denial, we also were aware of 21 other related federal
actions. See id. at 1393 n.1. As now, Lilly opposed centralization.
In our Cymbalta I decision, we acknowledged that these actions “share factual issues
concerning Cymbalta’s development, marketing, labeling, and sale,” id. at 1393, but concluded that
centralization was not warranted for a number of reasons. First, the procedural posture of the actions
“varie[d] significantly.” Id. For example, whereas in the two earliest-filed of the cases, the

*

1

Judge Ellen Segal Huvelle took no part in the decision of this matter.

As filed, the Section 1407 motion encompassed a total of 43 actions, but two have
since been dismissed.

-2discovery cutoff was quickly approaching, the more recently filed actions were “still in their
infancy.” Id. at 1394. Second, the record showed “that most, if not all common discovery ha[d]
already taken place in th[e] earlier-filed actions.” Id. Lilly already had produced nearly two million
pages of documents, as well as corporate representatives for Rule 30(b)(6) depositions in the areas
of drug safety, sales training, and labeling. Id. Third, only a limited number of plaintiffs’ counsel
were involved in the litigation. Id. Just two firms represented plaintiffs in all of the 25 constituent
actions, and Lilly was represented by only one law firm. Id.
II.
On the basis of the papers filed and the hearing session held, we deny plaintiffs’ motion, as
there has been no “significant change in circumstances” in the litigation since our decision in
Cymbalta I.2 All the factors that weighed against centralization then still are present today. These
41 cases are at substantially different procedural stages. For example, although eighteen of the cases
were commenced in August 2014, the eight actions in the Southern District of Indiana all were
brought just this year, and do not have scheduling orders.3 In contrast, the Middle District of Florida
Krupp action has a discovery cutoff of February 5, 2016; the Middle District of Alabama Moss action
has a cutoff of March 25, 2016; and the Southern District of California Wheeler has a cutoff of April
29, 2016.
Common discovery has advanced even further since Cymbalta I. Indeed, in recent months,
four Cymbalta cases have gone to trial – including two cases in the Central District of California that
were on the Section 1407 motion in Cymbalta I. According to Lilly, it has produced nearly three
million pages of documents; Lilly witnesses have sat for four 30(b)(6) depositions covering such
topics as the company’s regulatory affairs, sales training, clinical trial, and safety surveillance
functions; and there have been seven fact depositions of current and former Lilly employees involved
with the development, clinical trials, and post-marketing surveillance of Cymbalta withdrawal trials.
Lilly represents that it has made this common discovery available to all plaintiffs in cases in which
discovery has been served on Lilly and protective orders have been entered, and that it will make that
discovery available to all plaintiffs in the same manner. Although moving plaintiffs complain that
discovery has been conducted in an uncoordinated manner and that Lilly’s production has been
deficient in several respects, the current record even more firmly supports our conclusion in
Cymbalta I that “the discovery that has occurred to date has been substantial.” See 65 F. Supp. 3d
at 1394.
Finally, the record does not show a significant increase in the number of unique counsel.
Plaintiffs in these actions are represented by one or more of four law firms, and Lilly is represented

2

See In re: Plavix Mktg., Sales Practices & Prods. Liab. Litig. (No. II), 923 F. Supp.
2d 1376, 1378 (J.P.M.L 2013).
3

In the Southern District of Indiana Washington and Jones actions, Lilly was served
only just recently – on August 28, 2015.

-3in virtually all actions by the same law firm. Given this limited number of involved counsel,
informal coordination and cooperative efforts by the parties and involved courts remain practicable.4
See, e.g., In re: Eli Lilly & Co. (Cephalexin Monohydrate) Patent Litig., 446 F. Supp. 242, 244
(J.P.M.L. 1978); see also Manual for Complex Litig., Fourth, § 20.14 (2004).
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
Catherine D. Perry

4

Charles R. Breyer
R. David Proctor

Moving plaintiffs argue that since Cymbalta I, Lilly has refused to cooperate in
various ways, including (1) rejecting a proposed tolling agreement providing for informal discovery
followed by possible settlement discussions, (2) refusing to consent to plaintiffs’ plan to dismiss all
pending cases outside the Southern District of Indiana without prejudice – provided that Lilly agree
not to raise statute of limitations defenses that existed prior to the dismissals – and then to re-file
those cases in that district, (3) opposing plaintiffs’ subsequent efforts to have certain actions
transferred to the Southern District of Indiana under 28 U.S.C. § 1404, and (4) objecting to the
bundling of multiple, unrelated plaintiffs from various states in a single complaint. But in our
decisions in which we have denied centralization and found cooperation feasible, we have never
suggested that such cooperation entails requiring a party to acquiesce to a given motion, agree not
to raise a possible claim or defense, or accede to its opponent’s use of a particular procedural
stratagem.

IN RE: CYMBALTA (DULOXETINE)
PRODUCTS LIABILITY LITIGATION (NO. II)

MDL No. 2662

SCHEDULE A

Middle District of Alabama
MOSS, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 3:14-01135
Central District of California
PATTERSON, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 2:14-08527
CAPORALE, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 5:14-01662
HOLLOWELL, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 5:14-01663
BARRETT, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 5:14-01675
O’SHEA, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 8:14-01274
Eastern District of California
CHESHIER v. ELI LILLY AND COMPANY, C.A. No. 1:14-01265
WOODRUFF, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 2:14-01890
NELSON-DEVLIN, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 2:14-02811
BEN, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 2:14-02914
WOLFF, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 2:14-03004
Southern District of California
WHEELER, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 3:14-01882
District of Colorado
CHENEY, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 1:14-02249
MARTIN v. ELI LILLY AND COMPANY, C.A. No. 1:14-02800
Middle District of Florida
LAICA-BHOGE, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 6:14-01286
VALENTINO v. ELI LILLY AND COMPANY, C.A. No. 6:14-01816
KRUPP, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 8:14-02792
BROTHERTON v. ELI LILLY AND COMPANY, C.A. No. 8:14-02876

- A2 MDL No. 2662 Schedule A (Continued)
Northern District of Georgia
COUCH v. ELI LILLY AND COMPANY, ET AL., C.A. No. 1:14-02564
Southern District of Indiana
HILL, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 1:15-00141
BOLES ET AL. v. ELI LILLY AND COMPANY, C.A. No. 1:15-00351
DECRANE, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 1:15-00365
BICKHAM, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 1:15-00531
COURTNEY, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 1:15-00643
WASHINGTON, ET AL. v. ELI LILLY AND COMPANY., C.A. No. 1:15-00700
JONES, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 1:15-00701
BEARD, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 1:15-00922
Western District of Louisiana
FAIRBANKS v. ELI LILLY AND COMPANY, ET AL., C.A. No. 1:14-02469
District of Maine
ORLANDO, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 1:14-00438
District of Maryland
BOLING, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 8:14-02554
District of Minnesota
MCCABE v. ELI LILLY AND COMPANY, ET AL., C.A. No. 0:14-03132
Northern District of Mississippi
SPEARMAN, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 1:15-00006
District of Nevada
WALKER v. ELI LILLY AND COMPANY, C.A. No. 2:14-01988

- A3 MDL No. 2662 Schedule A (Continued)
District of New Hampshire
CARPENTER, ET AL. v. ELI LILLY AND COMPANY, ET AL., C.A. No. 1:14-00540
Eastern District of North Carolina
WILLIAMS, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 5:14-00460
Middle District of North Carolina
HARRIS v. ELI LILLY AND COMPANY, ET AL., C.A. No. 1:14-00682
Western District of Pennsylvania
ROSSERO, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 2:14-01084
Eastern District of Tennessee
EDENS, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 3:14-00491
Southern District of Texas
PORKORNY, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 4:14-02960
Eastern District of Washington
WAGNER, ET AL. v. ELI LILLY AND COMPANY, C.A. No. 2:14-00270
Western District of Wisconsin
STREETER v. ELI LILLY AND COMPANY, C.A. No. 3:14-00555