In re Lipitor (Atorvastatin Calcium) Marketing, Salespractices & Products Liability Litigation (No. II)

997 F. Supp. 2d 1354, 2014 WL 661589

Opinion

TRANSFER ORDER

JOHN G. HEYBURN II, Chairman.

Before the Panel:

Footnotes

•

* Pursuant to 28 U.S.C. § 1407, plaintiff in an action (Christopher) pending in the Middle District of Louisiana moves to centralize this litigation in the District of South Carolina. The litigation encompasses the 56 actions listed on Schedule A.¹

All responding plaintiffs support centralization, but they disagree about the appropriate transferee district. A majority of plaintiffs support selection of the District of South Carolina; certain other plaintiffs suggest the Northern District of Alabama, the Southern District of Illinois, the Southern District of Mississippi, or the Eastern District of Pennsylvania. Common defendant Pfizer Inc. (Pfizer) opposes centralization. At oral argument, Pfizer’s counsel stated that Pfizer was amenable to centralization in the District of South Carolina, if an MDL was created over its objections.

I.

The complaints in these 56 personal injury actions are highly similar. Plaintiffs allege that they have developed type 2 diabetes as a result of taking Pfizer’s cholesterol-lowering drug Lipitor. They contend that Pfizer failed to warn physicians and consumers adequately of the risk of developing type 2 diabetes from taking Lipitor, knew or should have know that the risks of Lipitor included developing diabetes, and negligently, recklessly, and/or carelessly marketed Lipitor without adequate instructions or warnings.²

This litigation is before us for a second time. At our July 2013 hearing session, we denied a motion for centralization brought by plaintiffs in three District of South Carolina actions (all of which are also included in the present motion). See In re: Lipitor (Atorvastatin Calcium) Mktg., Sales Practices & Prods. Liab. Li-tig., 959 F.Supp.2d 1375 (J.P.M.L.2013) (Lipitor I). The motion encompassed five constituent actions and 24 potential tag-along actions pending in a total of thirteen districts. As now, Pfizer opposed centralization.

In Lipitor I, we said that centralization was not warranted because almost half of the then-pending actions were pending in just one district (the District of South Carolina), many of the actions involved common plaintiffs’ counsel, the South Carolina actions were already being coordinated before one judge, and Pfizer represented that it was willing to work with plaintiffs’ counsel in the non-South Carolina cases to coordinate common discovery and other pretrial matters. Id. at 1375-76. Although plaintiffs suggested that the number of Lipitor actions was likely to expand considerably, we were “disinclined to take into account the mere possibility of future filings in our centralization calculus.” Id.

II.

In this new motion,³ plaintiffs argue that the number of involved actions and the number of involved plaintiffs’ counsel have increased significantly since Lipitor I, that many more cases will be filed, and that informal coordination and cooperation are no longer practicable. Pfizer, on other hand, argues that the number of case filings remains relatively low, and that creation of an MDL might delay the progress of the litigation, as well as lead to the filing of a large number of “non-viable” cases (e.g., cases in which the subject plaintiffs already had diabetes before they began taking Lipitor). Upon reevaluation, we find that a number of factors now tip the balance in favor of centralization.

First, the number of involved actions, districts, and judges has grown considerably. The present motion encompasses 56 constituent actions and over 170 tag-alongs. These actions are pending in more than 40 districts before more than 100 different judges.

Second, the number of involved plaintiffs’ firms has grown as well. In our judgment, the increased presence of apparently unique counsel, coupled with the increased number of involved actions, districts, and judges, makes it highly difficult, if not impossible, to coordinate this litigation effectively on an informal basis.

Third, when we denied centralization in Lipitor I, we were not aware of any related state court Lipitor litigation. We now know that Lipitor diabetes lawsuits are pending in at least three state courts. Creation of an MDL likely will make it easier to coordinate, as needed, pretrial proceedings in both the state and federal cases, because there will now be just one judge handling the latter. See In re: Pla-vix Mktg., Sales Practices & Prods. Liab. Litig. (No. II), 923 F.Supp.2d 1376, 1378-79 (J.P.M.L.2013) (“[CJreation of a Plavix MDL will not only result in the usual Section 1407 efficiencies, it also likely will facilitate coordination among all courts with Plavix cases, simply because there will now be only one federal judge handling most or all federal Plavix litigation.”).

Fourth, and finally, we are not persuaded by Pfizer’s argument that an MDL will prompt an avalanche of filings of “nonviable” Lipitor cases in an effort to coerce a settlement; To the extent that any of these actions (or any actions filed in the future) lack substantive merit, centralization will inure, in fact, to Pfizer’s ultimate benefit. An MDL, after all, gathers all related federal actions before just one judge who, of necessity, acquires an unusually high degree of familiarity with not only the involved parties, counsel, and claims but also the litigation’s underlying subject matter. As a result, that judge is uniquely well-positioned to recognize and dispose of spurious claims quickly. See Seroquel Prods. Liab. Litig., 447 F.Supp.2d 1376, 1378-79 (J.P.M.L.2006); see also In re: Cook Med., Inc., Pelvic Repair Sys. Prods. Liab. Litig., 949 F.Supp.2d 1373, 1374-75 (J.P.M.L.2013) (quoting Seroquel and rejecting defendants’ argument that centralization would “encourage additional filings by plaintiffs”).

Based on the foregoing, we find that these actions involve common questions of fact, and that centralization will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. These actions share fac tual issues arising from common allegations that taking Lipitor can cause women to develop type 2 diabetes. Centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings (in particular with respect to class certification and Daubert issues), and conserve the resources of the parties, their counsel and the judiciary.

III.

After weighing all factors, we have selected the District of South Carolina as transferee district for this litigation. That district is the first choice of most plaintiffs, and is also agreeable to Pfizer. Fourteen of the 56 constituent actions are pending there, as well as at least a dozen potential tag-alongs. The Honorable Richard M. Gergel, to whom we assign the MDL, is already presiding over all the South Carolina eases, and is handling them in a coordinated fashion. Judge Gergel has been on the federal bench for almost four years, and was in private practice for more than twenty years prior to that. We have every confidence that he will steer this litigation on a prudent course.

IT IS THEREFORE ORDERED that pursuant to 28 U.S.C. § 1407, the actions listed on Schedule A and pending outside the- District of South Carolina are transferred to the District of South Carolina and, with the consent of that court, assigned to the Honorable Richard M. Ger-gel for coordinated or consolidated pretrial proceedings.

SCHEDULE A

MDL No. 2502 — IN RE: LIPITOR (ATORVASTATIN CALCIUM) MARKETING, SALESPRACTICES AND PRODUCTS LIABILITY LITIGATION (NO. II)

District of Arizona

Central District of California

Feliza Diaz, et al. v. Pfizer Inc., et al., C.A. No. 2:13-06116

Mary Edmondson v. Pfizer Inc., et al., C.A. No. 5:13-01489

Aubrey Isom v. Pfizer Inc., et al., C.A. No. 8:13-01250

Eastern District of California

Jennie Guillory, et al. v. Pfizer Inc., C.A. No. 1:13-01332

Kathleen Davis v. Pfizer Inc., C.A. No. 2:13-01724

Maria Rosa Padilla, et al. v. Pfizer Inc., C.A. No. 2:13-02016

Middle District of Florida

Carolynn Cornell v. Pfizer Inc., C.A. No. 6:13-01523

Shirley McCraw v. Pfizer Inc., C.A. No. 6:13-01545

Dolores Perrine v. Pfizer Inc., C.A. No. 8:13-02524

Northern District of Illinois

Joyce Pryor v. Pfizer Inc., C.A. No. 1:13-05252

Southern District of Illinois

Kimberly Hines v. Pfizer Inc., C.A. No. 3:13-00404

Carla Ehlers v. Pfizer Inc., C.A. No. 3:13-00468

Rhonda Conner v. Pfizer Inc., C.A. No. 3:13-00635

Eastern District of Kentucky

Joyce Holbrook, et al. v. Pfizer Inc., C.A. No. 0:13-00107

Eastern District of Louisiana

Faith Johnson v. Pfizer Inc., C.A. No. 2:13-05821

Jessie M. Lumar, et al. v. Pfizer, Inc., C.A. No. 2:13-05980

Dana Birden v. Pfizer Inc., C.A. No. 2:13-06074

Gladys R. Butler v. Pfizer Inc., C.A. No. 2:13-06075

Alberta Gremillion v. Pfizer Inc., C.A. No. 2:13-06076

Gwendolyn G. Lewis, et al. v. Pfizer Inc., C.A. No. 2:13-06079

Middle District of Louisiana

Dianne Christopher v. Pfizer Inc., C.A. No. 3:13-00306

Vera A. Smith v. Pfizer Inc., C.A. No. 3:13-00651

Gladys O. Board v. Pfizer Inc., C.A. No. 3:13-00661

Christine S. Morales v. Pfizer Inc., C.A. No. 3:13-00662

Western District of Louisiana

Debra Kay Durrett v. Pfizer Inc., C.A. No. 1:13-02825

Pamela Caston, et al. v. Pfizer Inc., C.A. No. 3:13-02762

Martha B. Peevy, et al. v. Pfizer Inc., C.A. No. 3:13-02827

Ethel G. Allen, et al. v. Pfizer Inc., C.A. No. 5:13-02824

Peggy L. McWherter v. Pfizer Inc., C.A. No. 5:13-02826

Alice F. Shivers, et al. v. Pfizer Inc., C.A. No. 5:13-02828

Northern District of Mississippi

Ruthie M. Calamese v. Pfizer Inc., C.A. No. 1:13-00134

Pearl Matthews v. Pfizer Inc., C.A. No. 4:13-00136

Southern District of Mississippi

Sandra Sanderson Havens v. Pfizer Inc., C.A. No. 1:13-00278

Ruby Miller v. Pfizer Inc., C.A. No. 1:13-00342

Eastern District of Pennsylvania

Kimberley Jefferson, et al. v. Pfizer Inc., C.A. No. 2:13-02262

Josette M. Olson, et al. v. Pfizer Inc., C.A. No. 2:13-04277

Doris Brown v. Pfizer Inc., C.A. No. 2:13-04951

District of South Carolina

Bonnie C. Knight v. Pfizer Inc., C.A. No. 0:13-01375

Marguerite W. Jones v. Pfizer Inc., C.A. No. 1:13-01786

Evalina Smalls v. Pfizer Inc., C.A. No. 2:13-00796

Waltraud Gina Kane v. Pfizer Inc., C.A. No. 2:13-01012

Susan Marie Turner v. Pfizer Inc., C.A. No. 2:13-01108

Margaret A. Clark v. Pfizer Inc., C.A. No. 2:13-01164

Joyce Jones v. Pfizer Inc., C.A. No. 2:13-01785

Waltina W. Gadsden v. Pfizer Inc., C.A. No. 2:13-01921

Christine Papcun v. Pfizer Inc., C.A. No. 4:13-01422

Patricia Fernandez v. Pfizer Inc., C.A. No. 4:13-01423

Harriet L. McClam v. Pfizer Inc., C.A. No. 4:13-02148

Juanita Durocher v. Pfizer Inc., C.A. No. 7:13-01965

Brenda K. Williams v. Pfizer Inc., C.A. No. 8:13-01421

Janice C. Adams, et al. v. Pfizer Inc., C.A. No. 8:13-01735

Eastern District of Tennessee

Jeannie Tipton v. Pfizer Inc., C.A. No. 2:13-00214

Middle District of Tennessee

Earlene House v. Pfizer Inc., C.A. No. 3:13-01063

Western District of Washington

Diane Strader v. Pfizer Inc., C.A. No. 3:13-05666

Southern District of West Virginia

Betty Pauley v. Pfizer Inc., C.A. No. 2:13-17178

Judge Paul J. Barbadoro and Judge Lewis A. Kaplan took no part in the decision of this matter.

1

. The Panel has been informed of over 170 additional related federal actions pending in more than 40 districts.

2

. In February 2012, the following additional language was added to the Lipitor label: "Increases in HbAlc and fasting serum glucose levels have been reported with HMG-CoA re-ductase inhibitors, including Lipitor.” In its Safety Announcement describing the 2012 label change, the FDA stated: "Information about the potential for generally non-serious and reversible cognitive side effects (memory loss, confusion, etc.) and reports of increased blood sugar and glycosylated hemoglobin (HbAl c) levels has been added to the statin labels. FDA continues to believe that the cardiovascular benefits of statins outweigh these small increased risks.”

3

. We note that our denial of centralization in Lipitor I did not foreclose the filing of this second motion for centralization. That earlier denial also does not preclude us from reaching a different result here. We will do so only rarely, however, where a significant change in circumstances has occurred. See In re: Plavix Mktg., Sales Practices & Prods. Liab. Litig. (No. II), 923 F.Supp.2d 1376, 1378 (J.P.M.L.2013).