Bueno v. Merck & Co., Inc. ( 2024 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 SPENCER BUENO, an individual, and Case No.: 3:22-cv-00522-H-BLM RICHARD PARKER, an individual, 11 ORDER GRANTING JOINT Plaintiffs, 12 MOTION TO SEVER CLAIMS OF v. PLAINTIFF RICHARD PARKER 13 MERCK & CO., INC., a New Jersey 14 [Doc. No. 81.] Corporation; MERCK SHARP & 15 DOHME CORP., a New Jersey Corporation; ORGANON & CO., a 16 Delaware Corporation; ORGANON LLC, 17 a Delaware Limited Liability Company; and DOES 1-10, inclusive, 18 Defendants. 19 20 21 On May 10, 2024, Plaintiffs Spencer Bueno (“Bueno”) and Richard Parker (“Paker”) 22 (collectively, “Plaintiffs”) and Defendants Merck & Co., Inc. (“Merck”), Merck Sharp & 23 Dohme LLC1 (“MSD”), Organon & Co., and Organon LLC (collectively, “Defendants”) 24 filed a joint motion to sever the claims brought by Parker from the claims brought by Bueno 25 26 27 1 Plaintiffs named Merck Sharp & Dohme Corp. as a defendant in this suit. Defendants have since informed the Court that Merck Sharp & Dohme Corp. is now known 28 1 and to assign Parker a new case number. (Doc. No. 81.) For the reasons below, the Court 2 grants the parties’ joint motion. 3 BACKGROUND 4 On March 3, 2022, Plaintiffs filed their complaint in the Superior Court of the State 5 of California, County of San Diego. (Doc. No. 1-2.) The case was subsequently removed 6 and then transferred to this Court. (Doc. Nos. 1, 7.) In their complaint, Plaintiffs claim 7 that the warnings accompanying Defendants’ brand-name drug Singulair, which contains 8 the active ingredient montelukast, or the generic alternative manufactured and sold by 9 Defendants’ competitors were inadequate and should have been changed. (Doc. No. 1-2 10 ¶¶ 2, 54–56, 72, 74, 80–83.) Plaintiffs further claim that the brand-name Singulair or 11 generic montelukast can and did cause them to experience neuropsychiatric injuries that 12 would have been prevented if adequate warnings were in place. (Id. ¶ 1, 11, 86.) Discovery 13 has since confirmed that both Plaintiffs only ingested generic montelukast. (Doc. No. 81 14 at 2 n.3.) 15 By the present motion, the parties move the Court to sever the claims brought by 16 Parker from the claims brought by Bueno and to assign Parker a new case number. (Id. 17 at 2.) Although Plaintiffs do not concede or adopt the arguments made by Defendants in 18 support of the parties’ joint motion, Plaintiffs and Defendants collectively agree that 19 severance is appropriate here and that no substantial right will be prejudiced by the 20 severance. (Doc. No. 81 at 3, 7.) 21 DISCUSSION 22 Federal Rule of Civil Procedure 20 permits the joinder of plaintiffs in one action 23 if: (1) “they assert any right to relief jointly, severally, or in the alternative with respect to 24 or arising out of the same transaction, occurrence, or series of transactions or occurrences”; 25 and (2) “any question of law or fact common to all plaintiffs will arise in the action.” Fed. 26 R. Civ. P. 20(a)(1)(A)–(B). “If joined plaintiffs fail to meet both of these requirements, 27 the district court may sever the misjoined plaintiffs, as long as no substantial right will be 28 prejudiced by the severance.” Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997) 1 (citations omitted); Fed. R. Civ. P. 21 (“On motion or on its own, the court may at any 2 time, on just terms, add or drop a party.”). In the Ninth Circuit, courts have “broad 3 discretion” to sever improperly joined parties. Coleman v. Quaker Oats Co., 232 F.3d 4 1271, 1297 (9th Cir. 2000); Coughlin, 130 F.3d at 1351. 5 Here, Defendants argue that extensive discovery in this case has revealed that the 6 claims of Plaintiffs are improperly joined because they do not “aris[e] out of the same 7 transaction [or] occurrence” as required by Federal Rule of Civil Procedure 20. (Doc. 8 No. 81 at 4–6.) The Court agrees. As Defendants point out in the parties’ joint motion, 9 Plaintiffs’ claims involve unique, case-specific issues, including, but not limited to, distinct 10 medical histories, different underlying conditions, different prescribing physicians, 11 different courses of treatment, different alleged periods of ingestion of generic 12 montelukast, and different alleged injuries. (Id. at 4–5.) Moreover, the mere fact that 13 Plaintiffs both allegedly took generic montelukast is insufficient to satisfy the “same 14 transaction or occurrence requirement” under Federal Rule of Civil Procedure 20(a). See 15 e.g., Boschert v. Pfizer, Inc., No. 4:08-cv-001714-CAS, 2009 WL 1383183, at *3 (E.D. 16 Mo. May 14, 2009) (“[T]he mere fact the four plaintiffs took Chantix at some point in time 17 and suffered some sort of mental or behavioral side-effect is not enough of a logical or 18 factual connection to satisfy the same transaction or occurrence requirement.”). 19 Furthermore, no substantial right will be prejudiced by the severance. Rather, the 20 severance of Parker’s claims prevents unfair prejudice to Defendants, prevents potential 21 jury confusion, and promotes judicial economy. 22 Accordingly, Plaintiffs’ claims do not satisfy the joinder requirements under Federal 23 Rule of Civil Procedure 20. Because no substantial right will be prejudiced, severance of 24 Parker’s claims is appropriate. See Coughlin, 130 F.3d at 1351; see also Haddad v. Merck 25 & Co., No. 22-cv-02151-DMG-MAAx, 2023 WL 3526189, at *1 (C.D. Cal. Mar. 6, 2023) 26 (holding that severance of the plaintiffs’ claims was “the most efficient way to proceed” 27 even though all of the plaintiffs “allege[d] injuries within the general category of 28 neuropsychiatric injury” because each “present[ed] with their own unique medical histories 1 and conditions when prescribed Singulair, were prescribed the medicine at materially 2 different times and claim[ed] distinct injuries”). 3 CONCLUSION 4 For the foregoing reasons, the Court grants the parties’ joint motion and orders as 5 follows: 6 1. The claims of Parker are severed from the claims of Bueno pursuant to Federal 7 Rule of Civil Procedure Rule 21. 8 2. Parker’s claims are dismissed without prejudice to refiling. 9 3. Parker’s new complaint must neither contain new claims or allegations, nor 10 claims or allegations previously dismissed by the Court. In addition, Parker’s 11 new complaint must not include claims for breach of express warranty or 12 breach of implied warranty. 13 4. Parker’s new complaint, attached as Exhibit A to the parties’ joint motion, 14 (Doc. No. 81-1), must be filed in the United States District Court for the 15 Southern District of California within five (5) court days from the date of this 16 Order. 17 5. Provided that Parker’s new complaint is the document attached as Exhibit A 18 to the parties’ joint motion, (Doc. No. 81-1), Defendants will not file a motion 19 to dismiss but instead must file an answer to Parker’s new complaint within 20 five (5) court days of the new complaint being filed. Should Parker fail to 21 file the document attached as Exhibit A to the parties’ joint motion, (Doc. 22 No. 81-1), as his new complaint, Defendants will have the right to seek relief 23 from the Court, including a motion to strike. 24 6. Should Parker file a new complaint, he must file a notice of related case and 25 the Court will relate Parker’s case to Spencer Bueno, et al v. Merck & Co., 26 Inc. et al, United States District Court, Southern District of California, Case 27 No. 3:22-cv-00522-H-BLM. 28 7. Should Parker file a new complaint, any depositions taken in Spencer Bueno, ] etal. v. Merck & Co.., Inc. et al., United States District Court, Southern District 2 of California, Case No. 3:22-cv-00522-H-BLM may be used in Parker’s 3 severed case, without waiver of the parties’ rights to object to their use in 4 either case. 5 8. Should Parker file a new complaint, all documents filed with or by the Court 6 in Spencer Bueno, et al. v. Merck & Co., Inc. et al., United States District 7 Court, Southern District of California, Case No. 3:22-cv-00522-H-BLM, 8 including any Court orders, may be used in Parker’s severed case, without 9 waiver of the parties’ rights to object to their use in either case. 10 9. Should Parker file a new complaint, all documents obtained by either side or 11 served by either side prior to the severance, including but not limited to 12 Rule 26 initial disclosures, discovery responses, document productions, 13 expert designations, and expert disclosures/reports, in Spencer Bueno, et al. 14 v. Merck & Co., Inc. et_al., United States District Court, Southern District of 15 California, Case No. 3:22-cv-00522-H-BLM may be used in Parker’s severed 16 case, without waiver of the parties’ rights to object to their use in either case. 17 10. All deadlines and requirements set forth in the Court’s July 28, 2023, 18 scheduling order, (Doc. No. 65 (as modified by Doc. No. 79)), remain in effect 19 for Bueno’s and Parker’s respective cases. 20 IT IS SO ORDERED. 21 DATED: May 20, 2024 Heal gn | 22 MARILYN ®&. HUFF, District/Judge 3 UNITED STATES DISTRICT COURT 24 25 26 27 28