Red Cliff Band of Lake Superior Chippewa Indians v. McKesson Corporation et al

Filing 11

Certified Copy of Conditional Transfer Order. Case closed. Signed by Sarah S. Vance, Chair of the Panel on Multidistrict Litigation on 10/3/2018. (kwf) Main Document replaced on 10/3/2018. (kwf)

I hereby certify that this instrument is a
true and correct copy of the original on
file in my office. Attest: Sandy Opacich,
Clerk U.S. District Court, Northern
District of Ohio
By: /s/Robert Pitts
Deputy Clerk

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: NATIONAL PRESCRIPTION OPIATE
LITIGATION

MDL No. 2804

TRANSFER ORDER
Before the Panel:* Plaintiffs in six actions and certain defendants1 in the Southern District of
Georgia Bolton action move under Panel Rule 7.1 to vacate the orders conditionally transferring the
seven actions listed on Schedule A to MDL No. 2804. Various responding manufacturer and distributor
defendants2 oppose the motions.
After considering the argument of counsel, we find these actions involve common questions of
fact with the actions previously transferred to MDL No. 2804, and that transfer under 28 U.S.C. § 1407
will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the
litigation. Moreover, transfer is warranted for the reasons set out in our order directing centralization.
In that order, we held that the Northern District of Ohio was an appropriate Section 1407 forum for
actions sharing factual questions regarding the allegedly improper marketing and/or distribution of
various prescription opiate medications into cities, states and towns across the country. See In re:
National Prescription Opiate Litig., 290 F. Supp.3d 1375 (J.P.M.L. 2017). Plaintiffs in the initial motion
for centralization were cities, counties and a state that alleged: “(1) manufacturers of prescription opioid
medications overstated the benefits and downplayed the risks of the use of their opioids and aggressively
marketed (directly and through key opinion leaders) these drugs to physicians, and/or (2) distributors
failed to monitor, detect, investigate, refuse and report suspicious orders of prescription opiates.” Id. at
1378. We held that “[a]ll actions involve common factual questions about, inter alia, the manufacturing

*

Judges Charles R. Breyer and Ellen Segal Huvelle did not participate in the decision of this
matter.
1

Curtis V. Cooper Primary Health Care, Inc., Willie C. Conley, Jr., and Pembroke Pharmacy, Inc.
2

Amerisourcebergen Corp., Amerisourcebergen Drug Corp.; Cardinal Health, Inc., McKesson
Corp. (distributor defendants); Allergan PLC, Actavis LLC, Actavis Pharma, Inc.; Allergan Finance,
LLC; Cephalon, Inc.; Endo Health Solutions Inc., Endo Pharmaceuticals, Inc.; Insys Therapeutics,
Inc.; Janssen Pharmaceutica Inc. n/k/a/ Janssen Pharmaceuticals Inc., Johnson & Johnson and
Ortho-McNeil-Janssen Pharmaceuticals, Inc. n/k/a/ Janssen Pharmaceuticals, Inc; Mallinkrodt plc,
Mallinckrodt LLC; Purdue Pharma L.P., Purdue Pharma, Inc., Purdue Products, L.P. and The Purdue
Frederick Company, Inc.; Teva Pharmaceuticals USA, Inc.; Watson Laboratories, Inc., and Actavis,
Inc. f/k/a Watson Pharmaceuticals, Inc. (manufacturing defendants).

-2and distributor defendants’ knowledge of and conduct regarding the alleged diversion of these
prescription opiates, as well as the manufacturers’ alleged improper marketing of such drugs.” Id.
Despite some factual variances among the actions, all contain a factual core common to the MDL
actions: the manufacturing and distributor defendants’ alleged knowledge of and conduct regarding the
diversion of these prescription opiates, as well as the manufacturers’ allegedly improper marketing of
such drugs. The actions therefore fall within the MDL’s ambit.
All parties opposing transfer in seven actions argue principally that federal jurisdiction is lacking
over their cases. But opposition to transfer challenging the propriety of federal jurisdiction is insufficient
to warrant vacating conditional transfer orders covering otherwise factually-related cases.3
Several parties argue that including their actions in this large MDL will cause them
inconvenience. Given the undisputed factual overlap with the MDL proceedings, transfer is justified in
order to facilitate the efficient conduct of the litigation as a whole. See In re: Watson Fentanyl Patch
Prods. Liab. Litig., 883 F. Supp. 2d 1350, 1351-52 (J.P.M.L. 2012) (“[W]e look to the overall
convenience of the parties and witnesses, not just those of a single plaintiff or defendant in isolation.”).
Plaintiff Red Cliff Band of Lake Superior Chippewa Indians asserts that the Northern District of
Ohio lacks personal jurisdiction over its action. We have transferred cases in this docket brought by
Native American tribes that made similar arguments,4 and plaintiffs have not convinced us that we should
take a different approach here. The transferee judge can accommodate any unique interests that may arise
due to the Tribe’s status as a sovereign. Indeed, the transferee judge already has approved an
organizational structure that includes representation for Native American litigation and included certain
Native American Tribes in the bellwether process.

3

See, e.g., In re: Prudential Ins. Co. of Am. Sales Practices Litig., 170 F. Supp. 2d 1346, 134748 (J.P.M.L. 2001).
4

In April 2015, the Panel transferred an action brought by the St. Croix Chippewa Indians of
Wisconsin, noting:
The Panel has long denied objections to transfer based on the transferee court’s
purported lack of personal jurisdiction. In In re: FMC Corp. Patent Litig., 422 F.
Supp. 1163, 1165 (J.P.M.L. 1976), we held that “[t]ransfers under Section 1407 are
simply not encumbered by considerations of in personam jurisdiction and venue” and
that “[f]ollowing a transfer, the transferee judge has all the jurisdiction and powers
over pretrial proceedings in the actions transferred to him that the transferor judge
would have had in the absence of transfer.” (citing In re Plumbing Fixture Cases, 298
F.Supp. 483, 495-96 (J.P.M.L.1968)).
MDL No. 2804, Transfer Order, doc. 1134 at 3 (J.P.M.L., April 5, 2018).

-3Local pharmacy and health care provider defendants in the Southern District of Georgia action
request that we exclude the professional negligence and malpractice claims against them from the MDL.
This request is similar to the arguments contained in defendants’ pending motions to sever and partially
remand, and as such invites us to make substantive judgments about the merits of these claims, which
we historically have declined.5 Defendants have not persuaded us to depart from this longstanding
approach here, and we deny these requests.
IT IS THEREFORE ORDERED that the actions listed on Schedule A are transferred to the
Northern District of Ohio and, with the consent of that court, assigned to the Honorable Dan A. Polster
for inclusion in the coordinated or consolidated pretrial proceedings.

PANEL ON MULTIDISTRICT LITIGATION

Sarah S. Vance
Chair
Marjorie O. Rendell
R. David Proctor

5

Lewis A. Kaplan
Catherine D. Perry

See In re: Maxim Integrated Prods., Inc., Patent Litig., 867 F. Supp. 2d 1333, 1335 (J.P.M.L.
2012) (“[T]he framers of Section 1407 did not contemplate that the Panel would decide the merits
of the actions before it and neither the statute nor the implementing Rules of the Panel are drafted
to allow for such determinations.”) (citation and quotes omitted).

IN RE: NATIONAL PRESCRIPTION OPIATE
LITIGATION

MDL No. 2804

SCHEDULE A
Middle District of Florida
CITY OF JACKSONVILLE v. PURDUE PHARMA L.P., ET AL.,
C.A. No. 3:18!00751
Northern District of Florida
LEVY COUNTY v. PURDUE PHARMA L.P., ET AL., C.A. No. 1:18!00100
Southern District of Florida
PALM BEACH COUNTY v. PURDUE PHARMA L.P., ET AL., C.A. No. 9:18!80749
Southern District of Georgia
BOLTON, ET AL. v. BYNES, JR, ET AL., C.A. No. 4:18!00136
District of New Jersey
THE BOROUGH OF RIDGEFIELD, v. PURDUE PHARMA L.P., ET AL.,
C.A. No. 2:18!10842
MONMOUTH COUNTY v. PURDUE PHARMA L.P., ET AL., C.A. No. 3:18!10901
Western District of Wisconsin
RED CLIFF BAND OF LAKE SUPERIOR CHIPPEWA INDIANS v. MCKESSON
CORPORATION, ET AL., C.A. No. 3:18!00380