Flores v. Merck & Co., Inc.

• Court: District Court, D. Nevada
• Decided: October 13, 2021
• Docket: 3:21-cv-00166
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * *

4 SAVANNAH FLORES, Case No. 3:21-CV-00166-MMD-CLB

5 Plaintiff, ORDER DENYING MOTION TO STAY DISCOVERY 6 v. [ECF No. 33] 7 MERCK & CO., INC., et al.,

8 Defendants.

9 10 Currently pending before the Court is Defendants’ Merck & Co. and Merck Sharp 11 & Dohme Corp., (collectively referred to as “Merck”), motion to stay discovery, (ECF No. 12 33). Plaintiff Savannah Flores (“Flores”), responded to the motion, (ECF No. 36), and 13 Defendants replied, (ECF No. 37). The Court has reviewed the relevant pleadings and 14 papers, and, for the reasons set forth below, the motion to stay is denied. 15 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 16 A. COMPLAINT 17 Flores’s filed her Complaint on April 9, 2021, asserting, the following: Merck is the 18 researcher, manufacture, designer, labeler, and promoter of the Gardasil vaccine 19 (“Gardasil”). (ECF No. 1 at 5, 55.) Flores received her first dose of Gardasil on November 20 5, 2012, when she was 14 years old, and her second dose of Gardasil on February 4, 21 2013, when she was 15 years old. (Id. at 5, 51.) Flores alleges she sustained a litany of 22 serious and debilitating injuries after receiving Gardasil. (Id.) Flores alleges her injuries 23 are the result of: (1) Merck’s negligence in regard to hazards and dangers of Gardasil that 24 were known, or should have been known, by Merck; (2) Merck’s failure to provide 25 adequate warnings or instructions for Gardasil; (3) manufacturing defects found in the 26 Gardasil Flores received; (4) Merck’s breach of their express warranty in regard to 27 Gardasil; and (5) Merck’s undertaking of fraudulent, false, and misleading statements and 1 be upon [Merck] to prove that [Merck] has not caused the harms [Flores] suffered.” (Id. at 2 6.) 3 B. MOTION TO DISMISS 4 Merck responded to the Complaint by filing a motion to dismiss. (ECF No. 23.) In 5 the motion to dismiss, Merck first asserts that there is an absence of scientifically reliable 6 evidence to support Flores’s allegations. (Id.) Additionally, Merck asserts Flores’s 7 Complaint fails to state a claim, and Merck argues Flores’s claims must be dismissed 8 because: (1) the Vaccine Act expressly preempts Flores’s design claims, “even if 9 shrouded in other causes of action”; (2) Flores “fails to plead the necessary elements of 10 her strict liability claims,” and Flores fails to plead facts to support these claims; (3) 11 Flores’s “warning based claims are barred by the Vaccine Act and the learned 12 intermediary doctrine”; (4) Flores “fails to plead her fraud claim with the requisite 13 particularity required by the federal rules”; and (5) Flores’s “shotgun negligence claim is 14 duplicative of her other claims and thus fails.” (Id.) 15 On July 2, 2021, in support of Merck’s motion to dismiss, Merck also filed a request 16 for judicial notice. (ECF No. 24.) Merck’s request for judicial notice contains several 17 agency-created documents, documents which Merck claims Flores incorporated by 18 reference in the Complaint, and a document purported to define medical terms, which 19 Merck also claims Flores incorporated by reference in the Complaint. (Id.) Merck asserts 20 that “[j]udicial notice of these matters is compulsory because Merck has requested that 21 judicial notice be taken and [Merck] has furnished the Court with sufficient information to 22 enable [the Court] to take judicial notice of these matters.” (Id. at 6.) 23 On July 16, 2021, Flores filed responses to Merck’s motion to dismiss and Merck’s 24 request for judicial notice. (ECF Nos. 27, 28.) In Flores’s opposition to Merck’s motion to 25 dismiss, Flores asserts the five claims in the Complaint are adequately pleaded and 26 therefore the Complaint is sufficient. (ECF No. 27 at 6.) Flores also argues that none of 27 her claims are for design defect and therefore none of her claims are preempted. (Id. at 1 notice contain false statements of fact that go to the heart of Flores’s allegations against 2 Merck. (ECF No. 28 at 2.) Flores continues by arguing that the exhibits attached to 3 Merck’s request for judicial notice contain disputed facts. (Id. at 3.) 4 On July 23, 2021, Merck filed replies to both of Flores’s oppositions. (ECF Nos. 5 29, 30.) In Merck’s reply regarding the motion to dismiss, Merck again asserts that the 6 claims in Flores’s Complaint either fail to state a claim and/or are preempted. (ECF No. 7 29.) In Merck’s reply, regarding their request for judicial notice, Merck requests the Court 8 take notice that the documents accurately reflect what they purport to be. (ECF No. 30 at 9 2.) 10 C. MOTION TO STAY 11 On August 23, 2021, after the motion to dismiss was fully briefed, Merck filed the 12 instant motion to stay discovery. (ECF No. 33.) Merck argues that discovery should be 13 stayed because: (1) Merck’s motion is dispositive of all of Flores’s claims; (2) Merck’s 14 motion can be resolved without any additional discovery; and (3) the requested stay is 15 warranted to assure a just, speedy, and inexpensive resolution to this matter. (Id. at 4.) 16 Flores responded, in opposition, on September 7, 2021. (ECF No. 36.) Flores 17 argues that: (1) Merck’s motion to dismiss cannot be decided without additional discovery; 18 (2) Flores has stated a claim for relief; and (3) Merck’s request to stay discovery does not 19 promote efficiency. (Id.) Merck filed their reply to Flores’s response on September 14, 20 2021. (ECF No. 37.) Merck reasserts that no additional discovery is needed for the Court 21 to decide the motion to dismiss and that the motion to dismiss satisfies the Tradebay 22 factors. (Id.) 23 II. LEGAL STANDARD 24 Generally, a dispositive motion does not warrant a stay of discovery. Tradebay, 25 LLC v. eBay, Inc., 278 F.R.D. 597, 601 (D. Nev. 2011). “The party seeking a stay . . . has 26 the burden to show good cause by demonstrating harm or prejudice that will result from 27 the discovery.” Rosenstein v. Clark Cnty. Sch. Dist., No. 2:13-cv-1443-JCM-VCF, 2014 1 quotation marks omitted). Therefore, a party seeking a stay of discovery carries the heavy 2 burden of making a strong showing why the discovery process should not proceed. Turner 3 Broad. Sys., Inc. v. Tracinda Corp., 175 F.R.D. 554, 556 (D. Nev. 1997). A showing that 4 discovery may involve some inconvenience and expense does not suffice to establish 5 good cause to stay discovery. Ministerio Roca Solida v. U.S. Dep't of Fish & Wildlife, 288 6 F.R.D. 500, 503 (D. Nev. 2013). Motions to dismiss are frequently part of federal practice 7 and an “overly lenient standard for granting motions to stay all discovery is likely to result 8 in unnecessary discovery delay in many cases.” Trzaska v. Int'l Game Tech., No. 2:10- 9 cv-02268-JCM-GWF, 2011 WL 1233298, at *4 (D. Nev. Mar. 29, 2011). 10 To determine if a stay is appropriate pending the ruling on a motion to dismiss, the 11 Court considers the following factors: (1) whether the pending motion is potentially 12 dispositive of the case; (2) whether the motion can be decided without additional 13 discovery; and (3) whether the Court is convinced that the plaintiff cannot state a claim 14 for relief. Tradebay, 278 F.R.D. at 603; Kor Media Group, LLC v. Green, 294 F.R.D. 579, 15 581 (D. Nev. 2013); First Am. Title Ins. Co. v. Commerce Assocs., LLC, No. 2:15-cv-832- 16 RFB-VCF, 2015 WL 7188387, at *2 (D. Nev. Nov. 13, 2015). The Court must take a 17 “preliminary peek” at the merits of the underlying dispositive motion in order to find 18 whether the plaintiff can state a claim. Tradebay, 278 F.R.D. at 603. The “preliminary 19 peek” does not prejudge the outcome of the motion; it merely evaluates whether an order 20 staying discovery is warranted. Id. 21 In conducting its review, the Court also considers the goal of Federal Rule of Civil 22 Procedure 1, which provides that the Rules should “be construed, administered, and 23 employed by the Court and the parties to secure the just, speedy, and inexpensive 24 determination of every action.” Fed. R. Civ. P. 1. With Rule 1 as its prime directive, the 25 Court must decide whether it is more just to speed the parties along in discovery while a 26 dispositive motion is pending or to delay discovery to accomplish the inexpensive 27 determination of the case. See Big City Dynasty v. FP Holdings, L.P., 336 F.R.D. 507, 1 III. DISCUSSION AND ANALYSIS 2 With these principles in mind, the Court turns to the pleadings and motions 3 underlying Defendants’ request to stay discovery. Pursuant to the Tradebay factors, the 4 Court must first determine whether Merck’s motion to dismiss is potentially dispositive. 5 Here, Merck’s motion primarily seeks dismissal of Flores’s claims on the basis that Flores: 6 (1) fails to state a claim under Fed. R. Civ. P. 12(b)(6); (2) Flores’s claims are preempted 7 by the Vaccine Act and Nevada’s learned intermediary doctrine; and/or (3) Flores’s claims 8 are insufficiently pled. (ECF No. 23 at 1-2.) If Merck’s motion to dismiss is granted, it 9 appears most, if not all, of the claims asserted in the Complaint would likely be subject to 10 dismissal. Thus, the motion to dismiss is potentially dispositive. 11 Turning to the second factor, the parties disagree as to whether additional 12 discovery is needed for Merck’s motion to dismiss to be decided, (See ECF Nos. 33 at 4, 13 36 at 6). However, Merck’s motion to dismiss is primarily centered upon the assertion that 14 Flores’s Complaint: (1) fails to state a claim under Fed. R. Civ. P. 12(b)(6); (2) Flores’s 15 claims are preempted by the Vaccine Act and Nevada’s learned intermediary doctrine; 16 and/or (3) Flores’s claims are insufficiently pled. (ECF No. 23 at 1-2.) However, these are 17 straightforward issues that do not appear to require any further discovery. 18 Finally, the Court must conduct a “preliminary peek” of the motion to dismiss to 19 determine whether a stay of discovery is warranted. In conducting this “preliminary peek,” 20 the Court reviewed the operative Complaint in this action, (ECF No. 1), the filings related 21 to Merck’s motion to dismiss, (ECF Nos. 23, 27, 29), and reviewed the current filings 22 related to the motion to stay, (ECF Nos. 33, 36, 37). Moreover, the Court considered the 23 primary objectives of Rule 1 and the purpose of discovery in this matter. 24 In this instance, except for Merck’s preemption claims, Merck does not challenge 25 Flores’s Complaint on a ground that could not be cured by the Court granting Flores leave 26 to amend her Complaint—e.g., jurisdiction, venue, process, or service of process. (See 27 ECF Nos. 23, 29; see also Fed. R. Civ. P. 15(a)(2).) Merck’s assertion that Flores’s claims 1 doctrine, likely do not apply to each of Flores’s claims. Moreover, Flores refutes Merck’s 2 assertion that the claims are preempted or barred, and Flores refutes Merck’s allegations 3 that the claims are “thinly veiled design claims . . . shrouded in other causes of action.” 4 (ECF No. 23 at 6; see ECF No. 27 at 8-9.) Moreover, to the extent Merck’s motion to 5 dismiss is based on pleading deficiencies, the District Court will likely grant Flores leave 6 to amend her complaint. See Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave 7 when justice so requires.”). 8 Based on this review, the Court is not convinced Merck’s motion to dismiss will 9 likely be granted in whole, and even if Merck’s motion to dismiss is granted, the Court is 10 fairly convinced that Flores will be given leave to file an amended complaint to cure any 11 defects that may be contained within the pleading. See Fed. R. Civ. P. 15(a)(2). As such, 12 it appears that, at a minimum, some of the claims asserted in the Complaint will proceed 13 – in spite of the motion to dismiss. Therefore, the Court finds Defendants fail to make the 14 “strong showing” necessary to support a stay of discovery. Therefore, even if Defendants 15 are correct that Flores has not yet met the relevant pleading standards, a stay is 16 unwarranted because an amendment will likely be allowed which could cure the present 17 deficiencies. 18 In sum, after considering all of the factors related to a stay of discovery and taking 19 a “preliminary peek”, the Court is not convinced at this time that Flores will be unable to 20 state any claim for relief. Proceeding with discovery while Defendants’ motion to dismiss 21 is pending will further the just and speedy determination of this case. Accordingly, the 22 Court finds Defendants’ motion to stay discovery should be denied.1 23 24 1 Merck also argues Flores has indicated she intends to seek voluminous discovery, i.e., millions of pages of documents, in this case. (ECF No. 37.) Merck asserts that such 25 discovery is disproportionate to the claims and will impose undue costs and burdens on Merck and the Court. (Id.) However, the Court finds this argument tenuous. A showing 26 that discovery may involve some inconvenience and expense does not suffice to establish good cause to stay discovery. See Ministerio Roca Solida, 288 F.R.D. at 503. The Court finds Merck did not meet their burden of demonstrating the harm or prejudice that will 27 result from the discovery. 1| IV. CONCLUSION 2 Having determined Defendants have failed to make the strong showing required to stay discovery pending a decision on the motion to dismiss, the motion to stay 4| discovery, (ECF No. 33), is DENIED. 5 IT 1S SO ORDERED. 6 DATED: October 13,2021 . ‘

7 UNITED STA MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28