923 F. Supp. 2d 1376
J.P.M.L.2013Background
- Under 28 U.S.C. § 1407, Bristol-Myers and Sanofi move for MDL centralization of 21 actions across nine districts; McKesson supports, plaintiffs oppose.
- The Panel previously denied centralization in Plavix I (no MDL) for 12 actions across three districts, with limited tag-alongs and common counsel.
- This time, 21 constituent actions are pending in nine districts, plus thirteen potential tag-alongs, increasing districts to fourteen.
- There is a dramatic rise in related state court actions, suggesting more related federal actions and potential efficiencies from an MDL.
- The number of law firms involved has increased, with some firms appearing only in specific actions, reducing existing commonality.
- Schedule A actions involve claims that Bristol-Myers and Sanofi marketed Plavix with misrepresented benefits and failed to disclose risks; Schedule B actions are CAFA-removed and face remand issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether centralization for Schedule A is appropriate | Plaintiffs oppose centralization; argue lack of efficiency and coordination benefits. | Defendants argue significant change since Plavix I warrants centralization for efficiency and uniform pretrial rulings. | Centralization for Schedule A is appropriate in District of New Jersey. |
| Appropriateness of selecting District of New Jersey as transferee | No specific argument here beyond general opposition to transfer for Schedule A. | NJ is proper: defendants’ activities originated there; witnesses and documents located there; Judge Wolfson has relevant experience. | District of New Jersey designated as transferee for Schedule A pretrial proceedings. |
| What to do with Schedule B CAFA-removed actions | Removals acknowledge CAFA mass action but remand issues unresolved; transfer is inappropriate until remand rulings. | Compliance with CAFA; if remand denied, MDT order may apply; otherwise deny transfer for now. | Transfer for Schedule B denied without prejudice pending remand decisions. |
| Impact of expanded related actions and counsel on MDL utility | More actions and diverse counsel complicate consolidation; potential inefficiencies. | Expanded scale increases potential efficiencies and coordination opportunities under MDL. | The expanded scope supports establishing an MDL, with centralized pretrial proceedings in NJ for Schedule A. |
Key Cases Cited
- In re: Plavix Prods. Liab. Litig., 829 F.Supp.2d 1378 (J.P.M.L. 2011) (previous denial of centralization; informs current analysis)
- In re: Glaceau VitaminWater Mktg. & Sales Practices Litig. (No. II), 764 F.Supp.2d 1349 (J.P.M.L.2011) (centralizing related actions after prior denial where likely related actions exist)
- In re: FedEx Ground Package Sys., Inc., Emp’t Practices Litig. (No. II), 381 F.Supp.2d 1380 (J.P.M.L.2005) (centralizing after growth of related actions; efficiency rationale)