Flores v. Merck & Co., Inc.

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 SAVANNAH FLORES, Case No. 3:21-cv-00166-ART-CLB 5 Plaintiff, ORDER 6 v.

7 MERCK & CO., INC., a New Jersey Corporation; and MERCK SHARP & 8 DOHME CORP., a New Jersey Corporation, 9 Defendants. 10 11 12 Before the court is Plaintiff Savannah Flores’ motion to stay this case 13 pending a decision by the Judicial Panel on Multidistrict Litigation (“JPML”) 14 regarding transfer of this case to a consolidated MDL. (ECF No. 56.) For the 15 reasons stated below, the Court GRANTS the motion. 16 Plaintiff Flores sued Defendants Merck & Co. Inc. and Merck Sharp & 17 Dohme Corp. (collectively “Merck”) on April 9, 2021, on claims of negligence, 18 failure to warn, manufacturing defect, breach of warranty, and common law fraud 19 based on injuries Flores allegedly sustained after receiving Merck’s Gardasil 20 vaccine. (ECF No. 1.) On March 16, 2022, Chief Judge Miranda Du granted 21 Merck’s Motion to Dismiss with leave to amend. On April 12, 2022, Flores, along 22 with plaintiffs in 33 other actions involving alleged Gardasil-related injuries, 23 moved to transfer all related cases to an MDL pursuant to 28 U.S.C. § 1407. On 24 April 15, 2022, Flores filed an Amended Complaint, and on April 29, 2022, Merck 25 filed a Motion to Dismiss the Amended Complaint. On May 9, 2022, Flores filed 26 an Emergency Motion to Stay the Case pending a decision on consolidation by 27 the JPML. On May 10, 2022, this Court issued a minute order suspending 28 briefing on Merck’s Motion to Dismiss Plaintiff’s Amended Complaint pending 1 further briefing and this Court’s decision regarding Flores’ current motion to stay 2 this action. 3 Merck’s grounds for dismissal include that Flores’ claims are inadequately 4 pled under federal pleading standards, preempted by the Vaccine Act, and are 5 barred by Nevada’s learned intermediary doctrine. 6 “The District Court has broad discretion to stay proceedings as an incident 7 to its power to control its own docket.” Clinton v. Jones, 520 U.S. 681, 706–07 8 (1997); see also Rules of the Judicial Panel on Multidistrict Litigation, Rule 2.1(d) 9 (“The pendency of a motion . . . before the Panel pursuant to 28 U.S.C. § 1407 10 does not . . . limit the pretrial jurisdiction of that court.”). 11 Courts generally consider three factors when deciding whether to stay 12 proceedings pending resolution of a request to transfer to an MDL: “(1) potential 13 prejudice to the non-moving party; (2) hardship and inequity to the moving party 14 if the action is not stayed; and (3) the judicial resources that would be saved by 15 avoiding duplicative litigation if the cases are in fact consolidated.” Pate v. Dupey 16 Orthopaedics, Inc., 2012 WL 3532780, *2 (D. Nev. Aug. 14, 2012) (citing Rivers v. 17 Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D. Cal. 1997)). “Courts frequently 18 grant stays pending a decision by the MDL Panel regarding whether to transfer a 19 case.” Good v. Prudential Ins. Co. of Am., 5 F.Supp.2d 804, 809 (N.D. Cal. 1998); 20 see also Ann. Manual for Complex Lit. § 20.131 (4th ed. 2017) (observing that 21 courts may defer certain matters until the Panel has the opportunity to rule on 22 transfer, and that “the Panel has held that the pendency of potentially dispositive 23 motions is not an impediment to transfer of actions, because such motions can 24 be addressed by the transferee judge for resolution after transfer.”). 25 Here, the potential prejudice to Defendants is limited—a short delay until 26 briefing on their motion to dismiss continues either in this Court or the MDL 27 court. That said, the potential prejudice to Plaintiff if a stay is not granted is also 28 limited—Plaintiff would simply be required to file a Response to Defendants’ 1 || Motion to Dismiss within a reasonable timeline set by this Court. 2 On balance, however, judicial economy favors a stay. While Defendants 3 |} argue that their Motion to Dismiss presents unique issues of Nevada state law, 4 |} many of Defendants’ arguments around inadequate pleading and preemption 5 || under the federal Vaccine Act are common to the other cases in the motion to 6 || transfer pending before the JPML. Accordingly, the interest in judicial economy 7 || created by the commonality of issues in the cases proposed for consolidation 8 || outweighs the limited prejudice imposed on Defendants by waiting for the JPML’s 9 || decision on whether to transfer this case to an MDL. 10 11 Accordingly, IT IS HEREBY ORDERED that Plaintiff's Motion to Stay (ECF 12 || No. 56) is GRANTED; 13 14 IT IS FURTHER ORDERED that proceedings in this matter are STAYED 15 || until December 13, 2022, or 30 days after a final decision by the Panel regarding 16 || possible transfer, whichever is sooner. 17 18 DATED THIS 13 day of June 2022. 19 20 Past. Aros Wasted

UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28