Keffer v. Wyeth et al
Filing
153
MEMORANDUM OPINION AND ORDER denying plaintiff's 72 MOTION to consolidate for trial. Signed by Judge John T. Copenhaver, Jr. on 4/20/2011. (cc: attys) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
CAROLYN MICHAEL,
Plaintiff,
v.
Civil Action No. 2:04-0435
WYETH, LLC and PFIZER, INC.,
Defendants.
LEAH ROYCE HINES,
Plaintiff,
v.
Civil Action No. 2:04-0690
WYETH, d/b/a Wyeth, Inc.;
WYETH PHARMACEUTICALS, INC.;
PHARMACIA & UPJOHN COMPANY; and
PFIZER, INC.,
Defendants.
and
ROSEMARY KEFFER,
Plaintiff,
v.
Civil Action No. 2:04-0692
WYETH, d/b/a Wyeth, Inc.;
WYETH PHARMACEUTICALS, INC.;
PHARMACIA & UPJOHN COMPANY; and
PFIZER, INC.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending are the plaintiffs’ motions to consolidate the
above-styled civil actions for trial, all filed January 5, 2011.
I.
Background
These three pharmaceutical products liability actions
arise out of the plaintiffs’ use of hormone replacement therapy
(“HRT”) drugs manufactured and sold by defendants.1
In moving to
consolidate these actions for trial,2 plaintiffs assert that
their cases are “strikingly similar.”
(Pls.’ Mot. at 2).
As
their motion states:
[E]ach Plaintiff was prescribed hormone replacement drugs
to relieve menopausal symptoms and, after taking these
drugs for multiple years, were diagnosed with breast
cancer. Each Plaintiff claims that the Defendants’ drugs
caused them to develop breast cancer.
In addition,
Plaintiffs present identical claims and legal theories of
recovery
against
the
Defendants.
Specifically,
Plaintiffs’ Complaints assert the same claims of
negligence, strict products liability and breach of
warranty against the Defendants.
Expert disclosures filed in each case reflect that
Plaintiffs plan to present the same expert testimony from
a number of the same expert witnesses to establish
liability.
Each Plaintiff will call the same three
case-specific witnesses . . . To deny consolidation and
require these experts to replicate their testimony would
. . . require the parties to compensate the experts for
testifying at three trials when their testimony will be
the same for all three Plaintiffs.
(Id. at 2).
1
HRT drugs consist of two hormones, estrogen and
progestin, and are commonly used to treat symptoms of menopause.
These cases concern the following drugs: (1) Wyeth’s estrogen
drug, Premarin, (2) Wyeth’s estrogen and progestin combination
drug, Prempro, and (3) Pharmacia and Upjohn Company’s (with
defendant Pfizer being Upjohn’s alleged successor in liability)
progestin drug, Provera.
2
Each plaintiff has filed an identical motion to
consolidate for trial.
2
In opposition to consolidation, defendants contend that
“these plaintiffs share little in common other than the venue in
which their cases are brought.”
(Resp. at 1).
They provide the
following chart outlining the factual discrepancies in the cases:
3
(Id. at 6-7).
Relying on these alleged factual discrepancies,
defendants assert three grounds to defeat consolidation: (1) a
consolidated trial would prejudice defendants on the issue of
causation, (2) consolidation would magnify juror sympathy for
each individual plaintiff, and (3) consolidation would create
jury confusion and resulting prejudice.
II.
(Id. at 9-16).
Motion to Consolidate for Trial
Federal Rule of Civil Procedure 42(a) governs the
consolidation of civil actions.
It provides pertinently as
follows:
(a) Consolidation. When actions involving a common
question of law or fact are pending before the court, it
may order . . . all the actions consolidated; and it may
make such orders concerning proceedings therein as may
tend to avoid unnecessary costs or delay.
Fed. R. Civ. Proc. 42(a).
Our court of appeals has given the district courts a
wide berth on questions arising under Rule 42(a), recognizing the
superiority of the trial court in determining how best to
structure similar pieces of litigation.
See A/S J. Ludwig
Mowinckles Rederi v. Tidewater Const. Co., 559 F.2d 928, 933 (4th
Cir. 1977) (“District courts have broad discretion under
F.R.Civ.P. 42(a) to consolidate causes pending in the same
district.”).
Nevertheless, the court of appeals has also
provided guidelines for district courts engaging in the
4
discretionary exercise.
See Arnold v. Eastern Air Lines, Inc.,
681 F.2d 186, 193 (4th Cir. 1982):
The critical question for the district court in the final
analysis was whether the specific risks of prejudice and
possible confusion were overborne by the risk of
inconsistent adjudications of common factual and legal
issues, the burden on parties, witnesses and available
judicial resources posed by multiple lawsuits, the length
of time required to conclude multiple suits as against a
single one, and the relative expense to all concerned of
the single-trial, multiple-trial alternatives.
Id. at 193.
The court initially notes that all three actions
present common legal issues inasmuch as the plaintiffs assert
identical claims against essentially the same defendants, with
the exception that Upjohn is not a defendant in plaintiff
Michael’s action.
There also appear to be common factual
questions since all plaintiffs allege that they incurred the same
injury (breast cancer) as a result of ingesting some combination
of defendants’ HRT drugs, and they received somewhat similar
treatments (each underwent mastectomies).
However, “even where cases involve some common issues
of law or fact, consolidation may be inappropriate where
individual issues predominate.”
In re Consol. Parlodel Litig.,
182 F.R.D. 441, 447 (D.N.J. 1998).
Regarding individual issues,
as defendants point out and plaintiffs do not dispute, (1) each
plaintiff has a unique medical and family history; (2) plaintiffs
5
took somewhat different HRT drugs in varying doses; (3)
plaintiffs were prescribed the HRT drugs by different doctors, at
different times, based on different sources of information about
their risks and benefits; (4) plaintiffs took the HRT drugs for
different lengths of times; (5) plaintiffs had different forms of
breast cancer; (6) plaintiffs underwent different types of
mastectomies; and (7) plaintiffs had different pre-existing risk
factors for breast cancer.
(Resp. at 11; see also chart
reproduced supra page 3).3
Additionally, defendants recently
filed a series of summary judgment motions in each action.
While
these motions indicate that there is some degree of overlap
regarding the legal issues involved in the three cases, they also
reveal substantial differences.
For example, defendants have
moved for summary judgment on statute of limitations grounds in
the Michael action, but have not done so in the Keffer and Hines
actions.
If defendants’ statute of limitations argument at the
summary judgment stage is unsuccessful because of factual
disputes, this highly fact-specific issue will need to be
litigated at trial in the Michael action only.
3
Defendants also note that at least five federal
district courts have denied consolidation in similar HRT cases.
See Coons v. Wyeth Pharm., Inc., No. 1:10-CY-187 (N.D.N.Y. Sept.
13, 2010); Wolf v. Wyeth Inc., No. G-03-536 (S.D. Tex. June 29,
2010); Scharff v. Wyeth, Inc., NO.2: 10-CY-220-WKW (M.D. Ala.
June 18, 2010); Romero v. Wyeth Pharm., Inc., No. 1:03-CY-1367
(E.D. Tex. June 15, 2010); Laferrara v. Wyeth, No.
4:04-CY-02271-WRW (E.D. Ark. April 1, 2010).
6
In view of these discrepancies, the court concludes
that consolidating these cases for trial would create a
significant risk of jury confusion and prejudice to defendants.
The predominance of individual issues also creates a low risk of
inconsistent adjudications of common factual and legal issues
should these cases proceed separately.
The court is aware of the burdens associated with
forgoing consolidation.
There will be overlap in expert and lay
witness testimony among the cases, increased expenses, and a
greater drain on judicial resources.
But in this instance, the
factors weighing in favor of consolidation for trial are
overborne by “risks of prejudice and possible confusion.”
Arnold, 681 F.2d at 193.
III.
Conclusion
Based upon the foregoing, consolidation is not deemed
appropriate.
It is accordingly ORDERED that the plaintiffs’
motions to consolidate for trial be, and they hereby are, denied.
The Clerk is directed to forward copies of this written
opinion and order to all counsel of record.
DATED: April 20, 2011
7
John T. Copenhaver, Jr.
United States District Judge
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