In Re Upjohn Co., Etc. , 450 F. Supp. 1168 ( 1978 )

450 F. Supp. 1168 (1978)

In re the UPJOHN CO. ANTIBIOTIC "CLEOCIN" PRODUCTS LIABILITY LITIGATION.

No. 343.

Judicial Panel on Multidistrict Litigation.

May 23, 1978. As Corrected May 31, 1978.

Before JOHN MINOR WISDOM, Chairman, and EDWARD WEINFELD, EDWIN A. ROBSON, JOSEPH S. LORD, III, STANLEY A. WEIGEL, ANDREW A. CAFFREY, and ROY W. HARPER, Judges of the Panel.

OPINION AND ORDER

PER CURIAM.

This litigation consists of fifteen actions pending in twelve districts as follows:

Eastern District of Louisiana                 3 actions
Eastern District of Wisconsin                 2 actions
Western District of Louisiana                 1 action
District of Massachusetts                     1 action
Eastern District of Michigan                  1 action
Eastern District of Missouri                  1 action
Northern District of New York                 1 action
District of North Dakota                      1 action
District of South Carolina                    1 action
Eastern District of Texas                     1 action
Western District of Washington                1 action
Western District of Wisconsin                 1 action

The Upjohn Company (Upjohn) is the principal defendant in all fifteen actions. Plaintiffs in each action have been users of the antibiotic, Clindamycin, that is marketed by Upjohn under the trademark "Cleocin." Generally, plaintiffs in these actions allege that they suffered severe side effects in the form of colitis, diarrhea or other gastrointestinal injuries as a result of taking Cleocin. Liability against Upjohn in each of the actions is based on negligence in, inter alia, failing to warn of the dangers inherent in taking Cleocin, strict liability, and/or breach of warranties. Plaintiffs' physicians, insurance companies, a hospital and/or a pharmacy are additional defendants in five actions.

This litigation is before the Panel on the motion of plaintiffs in the New York action for transfer, pursuant to 28 U.S.C. § 1407, of all actions pending in districts other than the Eastern District of Louisiana to that district for coordinated or consolidated pretrial proceedings with the three actions pending there. Plaintiffs in nine actions have joined in the motion to transfer. Upjohn opposes transfer. Additional codefendants with Upjohn in two actions and plaintiffs in two actions oppose transfer of their respective actions. Upjohn also states that it would favor a Michigan transferee forum if the Panel determines that centralized pretrial proceedings are appropriate in this litigation.

We find that these actions involve common questions of fact and that, with the exception of the Western District of Louisiana action, the Missouri action, the Western District of Wisconsin action and one of the Eastern District of Wisconsin actions, their transfer under Section 1407 to the Eastern District of Michigan will best serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation.^[1]

Upjohn denies that common questions of fact will predominate in this litigation. It urges that discovery on the issue of damages will be unique to each action and that even with respect to the issue of liability, discovery unique to each action will be required regarding the prescribing physician's testimony; whether the drug taken was manufactured, distributed, or sold by Upjohn; the representations made by Upjohn to the prescribing physician; the physical condition of the plaintiff at the time the drug was administered; the testimony of the plaintiff's expert witnesses; and the testimony of the Upjohn employee who may have dealt with the prescribing physician.

Upjohn also argues that transfer under Section 1407 is unnecessary because most actions in this litigation are proceeding expeditiously towards trial, with discovery completed and trial dates set in several actions. Similarly, additional parties in two actions oppose inclusion of their respective actions in centralized pretrial proceedings because of the advanced stage of their particular action. Finally, in one action, codefendants argue against transfer of the claims brought against them on the grounds that those claims, based on theories of medical malpractice, will be unique to their action and will share no factual questions with the claims against Upjohn.

We are persuaded that centralized pretrial proceedings under Section 1407 are appropriate in this litigation. Although we recognize that some individual factual issues will be present in each action, an analysis of the complaints reveals a commonality of factual questions concerning the testing, manufacturing, and marketing of Cleocin; the causal relationship between ingestion of Cleocin and contraction of severe side effects; and Upjohn's foreknowledge of these side effects. Thus centralization pursuant to Section 1407 is necessary in order to prevent duplication of discovery and eliminate the possibility of conflicting pretrial rulings. Any discovery unique to a particular party, action, or claim can be scheduled by the transferee judge to proceed concurrently with the common discovery, thus enhancing the efficient processing of the litigation. See In re A. H. Robins Co., Inc. "Dalkon Shield" IUD Products Liability Litigation, 406 F. Supp. 540, 542 (Jud.Pan.Mult.Lit.1975).

On the basis of the record before us, it appears that discovery has been completed and trial scheduled in the Western District of Louisiana action, the Missouri action, the Western District of Wisconsin action and one of the Eastern District of Wisconsin actions. Accordingly, transfer of these three actions would not now be appropriate and they will therefore be excluded from our transfer order. See In re Celotex Corporation "Technifoam" Products Liability Litigation, 68 F.R.D. 502, 505 (Jud.Pan. Mult.Lit.1975). Some parties have argued that additional actions are also sufficiently advanced to warrant their exclusion from transfer. We recognize that all actions are not at the same stage of discovery but, based on the information before us, we conclude that the remaining actions in this litigation will all benefit from transfer under Section 1407. We note that if and when an action or claim is, in fact, ready for trial, or otherwise ready for remand because the transferee judge finds that the centralized pretrial proceedings pertaining to that action or claim are completed, the transferee judge may suggest that the Panel remand the action or claim to its transferor district. See 28 U.S.C. § 1407(a); Rule 11, R.P.J.P.M.L., 65 F.R.D. 253, 260-63 (1975). And, of course, any discovery heretofore completed may be made applicable to all actions by utilizing the procedures recommended in the Manual for Complex Litigation, Parts I and II, §§ 3.11 (rev. ed. 1977).

Movants favor the Eastern District of Louisiana as the transferee forum because it is centrally located, three actions are pending there, and the judge there has developed an expertise in this litigation as a result of presiding over the trial of a related action. We are persuaded, however, that the Eastern District of Michigan is the preferable forum for this litigation. Movants' representative at the hearing before the Panel emphasized that extensive discovery at Upjohn's headquarters in Kalamazoo, Michigan, of Upjohn records and research files is necessary for complete and full prosecution of this litigation. It is thus likely that many relevant documents and witnesses will be found in Kalamazoo. Because we are reluctant to transfer multidistrict litigation to a district wherein none of the constituent actions is pending, we are transferring this litigation to the closest district to Kalamazoo wherein an action before us is pending. See In re Practice of Naturopathy Litigation, 434 F. Supp. 1240, 1243 (Jud.Pan.Mult.Lit.1977). Also, in the context of the actions presently before us, the Eastern District of Michigan is in a geographically central and convenient location.

IT IS THEREFORE ORDERED that transfer pursuant to 28 U.S.C. § 1407 of the actions entitled Lois Hyatt v. The Upjohn Co., W.D. Louisiana, C.A. No. 75-0398; Paula Stanfield v. The Upjohn Co., E.D. Missouri, C.A. No. 77-0557-C(2); William and Barbara Weisz v. The Upjohn Co., et al., E. D. Wisconsin, C.A. No. 75-C-258; and Charles M. Whipkey v. The Upjohn Co., W.D. Wisconsin, C.A. No. 75-C-553, be, and the same hereby is, DENIED.

IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1407, the remaining actions listed on the following Schedule A and pending in districts other than the Eastern District of Michigan be, and the same hereby are, transferred to the Eastern District of Michigan and, with the consent of that court, assigned to the Honorable Cornelia G. Kennedy for coordinated or consolidated pretrial proceedings with the action listed on Schedule A and pending in that district.

SCHEDULE A
Eastern District of Texas
Daween Dillingham v. The Upjohn             Civil Action
Co.                                         No. S-75-112-CA
Eastern District of Louisiana
Barry C. Escher v. The Upjohn               Civil Action
Co., et al.                                 No. 75-1745F(4)
O. L. Mauldin v. The Upjohn Co.,            Civil Action
et al.                                      No. 75-948F(2)
Alta Garrett McClanahan v. The              Civil Action
Upjohn Co.                                  No. 75-1274F(5)
District of South Carolina
Kirk A. King v. The Upjohn Co.              Civil Action
No. 76-758
Western District of Louisiana
Lois Hyatt v. The Upjohn Co.                Civil Action
No. 75-0398
District of Massachusetts
Eileen C. Sanderson, et al. v. The          Civil Action
Upjohn Co., et al.                          No. 75-4228-F
Western District of Washington
Richard M. and Alberta L. Schatz            Civil Action
v. The Upjohn Co.                           No. C75-51S
Eastern District of Wisconsin
Steven R. Schwan v. The Upjohn              Civil Action
Co.                                         No. 77-C-363
William and Barbara Weisz v. The            Civil Action
Upjohn Co., et al.                          No. 75-C-258
Western District of Wisconsin
Charles M. Whipkey v. The Upjohn            Civil Action
Co.                                         No. 75-C-553
Eastern District of Missouri
Paula Stanfield v. The Upjohn Co.           Civil Action
No. 77-0557C(2)
Northern District of New York
Walter J. and Agnes Wojcik, Jr. v.          Civil Action
The Upjohn Co.                              No. 75-CV-541
District of North Dakota
Dale G. Niewoehner v. The Upjohn            Civil Action
Co.                                         No. A77-4019
Eastern District of Michigan
Juanita and Zasil Stavro v. The             Civil Action
Upjohn Co.                                  No. 77-1761

NOTES

[1] Upjohn is ordered to keep the Clerk of the Panel informed of any tag-along actions in this litigation. See Rule 1, R.P.J.P.M.L., 65 F.R.D. 253, 255 (1975).