Free Motion to Stay - District Court of California - California

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Catherine Valerio Barrad (SBN 168897) [email protected] Christine Kim Son (SBN 223190) [email protected] J. P. Pecht (SBN 233708) [email protected] SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 4000 Los Angeles, California 90013-1010 Telephone: (213) 896-6000 Facsimile: (213) 896-6600 Attorneys For Defendant Bayer Corporation UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DEFENDANT'S MOTION FOR ADMINISTRATIVE RELIEF TO STAY PROCEEDINGS

) Case No. 3:08-cv-01655 SI JEANNE DIANE COLLINS, as surviving statutory beneficiary for the wrongful death of ) Assigned to: Honorable Susan Illston ) FLOYD COLLINS, ) ) DEFENDANT'S UNOPPOSED MOTION Plaintiff, ) FOR ADMINISTRATIVE RELIEF TO ) STAY PROCEEDINGS PENDING v. ) TRANSFER TO MULTIDISTRICT ) LITIGATION PURSUANT TO LOCAL BAYER CORPORATION, a Pennsylvania RULE 7-11 corporation, aka, BAYER HEALTHCARE and ) ) STIPULATION PURSUANT TO LOCAL BAYER AG; and MCKESSON ) RULE 7-12 FILED CONCURRENTLY CORPORATION, a Delaware corporation; ) JOHN DOES 1-100 and ABC ) STIPULATED [PROPOSED] ORDER CORPORATIONS 1-100, ) LODGED CONCURRENTLY Defendants. ) )

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Defendant Bayer Corporation moves for administrative relief to stay proceedings until the Judicial Panel on Multidistrict Litigation transfers this and other Trasylol® cases for consolidated and coordinated pretrial proceedings to In re Trasylol Products Liability Litigation, MDL No. 1928. Plaintiff's counsel has advised that he will not move to remand this action to state court and, further, has stipulated to this stay. BACKGROUND This case is one of more than 30 personal injury and wrongful death actions involving the prescription pharmaceutical Trasylol® that are currently pending in federal district courts around the country.1 On December 26, 2007, defendant moved to transfer all pending federal Trasylol® lawsuits to a single district pursuant to 28 U.S.C. § 1407 for consolidated and coordinated pretrial proceedings. The motion is fully briefed, and oral argument on the motion was heard at the March 27, 2008 hearing of the Judicial Panel on Multidistrict Litigation (the "Panel"). On April 7, 2008, the Panel ordered the transfer of product liability actions involving Trasylol to MDL No. 1928. A copy of the Transfer Order is attached as Exhibit A. ARGUMENT Proceedings in this action should be stayed pending the Panel's transfer of this case to the Trasylol® MDL in the interests of judicial economy and fairness to the parties. See Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1362 (C.D. Cal. 1997) ("a majority of courts have concluded that it is often appropriate to stay preliminary pretrial proceedings while a motion to transfer and consolidate is pending with the MDL Panel"); see also Mathern v. Wyeth, No. Civ. A. 04-2116, 2004 WL 1922028, at *1 (E.D. La. Aug. 25, 2004) (same); Aikins v. Microsoft Corp., No. Civ. A. 00-0242, 2000 WL 310391 (E.D. La. Mar. 24, 2000) (same); Republic of Venez. v. Philip Morris Cos., Inc., No. 99-0586, 1999 WL 33911677, at *1 (S.D. Fla. Apr. 28, 1999) (same); Good v. Prudential Ins. Co. of Am., 5 F. Supp. 2d 804, 809 (N.D. Cal. 1998)

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Additional Trasylol® cases are pending in state courts in Connecticut, New Jersey, Oklahoma, and Pennsylvania.

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(same); Manual for Complex Litigation (Fourth) § 22.35 (2005) ("a stay pending the Panel's decision can increase efficiency and consistency"). A stay would promote the just and efficient administration of the litigation and would avoid the risk of undue prejudice to defendant, without harm to plaintiff's position. Stays were recently granted in De Leon v. Bayer Pharmaceutical Corp., No. 4:07-cv-06206 CW (N.D. Cal. Mar. 21, 2008) (Docket Entry No. 18), Minard v. Bayer Corp., No. 4:08-cv-00739 CW (N.D. Cal. Mar. 21, 2008) (Docket Entry No. 12), and Nitzberg v. Bayer Corp., No. 4:07-cv04399 CW (N.D. Cal. Mar. 10, 2008) (Docket Entry No. 46). I. A STAY WOULD PROMOTE THE JUST AND EFFICIENT ADMINISTRATION OF THE LITIGATION. Staying proceedings in this case would facilitate the uniform resolution of pretrial issues common to all federal cases in the Trasylol® litigation. The fundamental purpose of an MDL is to ensure that issues common to related cases are addressed expeditiously and consistently. 28 U.S.C. § 1407; see also In re Meridia Prods. Liab. Litig., 217 F. Supp. 2d 1377, 1378 (J.P.M.L. 2002); In re Dow Chem. Co. Sarabond Prods. Liab. Litig., 650 F. Supp. 187, 189 (J.P.M.L. 1986). Invariably when related cases are pending in numerous districts, different judges will be asked to address similar pretrial matters and to resolve similar pretrial motions. See In re Fosamax Prods. Liab. Litig., 444 F. Supp. 2d 1347, 1349 (J.P.M.L. 2006). This creates risks of unnecessary duplication of effort and inconsistent rulings. Id.; cf. I.A. Durbin, Inc. v. Jefferson Nat'l Bank, 793 F.2d 1541, 1551-52 (11th Cir. 1986) (noting that trial courts have broad discretion "in determining whether to stay . . . litigation in order to avoid duplicating a proceeding already pending in another federal court"). There are now more than 30 Trasylol® cases pending in federal courts across the country. Pretrial discovery in the various actions will likely focus on similar documents and personnel. The most reasonable course in this situation is to stay proceedings in this and other individual cases until the actions can be consolidated in an MDL, at which time the transferee

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judge can address these matters collectively.2 See Namovicz v. Cooper Tire & Rubber Co., 225 F. Supp. 2d 582, 585 (D. Md. 2001) (staying case pending MDL transfer to ensure consistent treatment of multiple cases); Weinke v. Microsoft Corp., 84 F. Supp. 2d 989, 990 (E.D. Wis. 2000) (same); Aetna U.S. Healthcare, Inc. v. Hoechst Aktiengesellschaft, 48 F. Supp. 2d 37, 43 (D.D.C. 1999) (same). A stay also would avoid wasting this Court's resources. After this case is transferred to an MDL, the transferee judge will have full discretion to reconsider or reject prior decisions in this case. In re Office Prods. Co. Sec. Litig., 251 F. Supp. 2d 58, 65 (D.D.C. 2003); see also Astarte Shipping Co. v. Allied Steel & Export Serv., 767 F.2d 86, 87 (5th Cir. 1985) ("The transferee district court has the power and the obligation to modify or rescind any orders in effect in the transferred case which it concludes are incorrect."). There is no need for this Court to expend resources on this case, at least during the brief period until the MDL motion is decided. See U.S. Bank v. Royal Indem. Co., No. Civ. A. 3:02-CV-0853-P, 2002 WL 31114069, at *2 (N.D. Tex. Sept. 23, 2002) (granting motion to stay and noting that, "[i]f the MDL motion

Defendants are filing similar motions to stay in the other pending federal Trasylol® cases, and stays pending transfer to multidistrict litigation already have been granted in 16 cases: De Leon v. Bayer Pharmaceutical Corp., No. 4:07-cv-06206 (N.D. Cal. Mar. 21, 2008) (Docket Entry No. 18); Minard v. Bayer Corp., No. 4:08-cv-00739 (N.D. Cal. Mar. 21, 2008) (Docket Entry No. 12); Nitzberg v. Bayer Corp., No. 4:07-cv-04399 (N.D. Cal. Mar. 10, 2008) (Docket Entry No. 46); Bakan v. Bayer Corp., No. 8:07-cv-220 (M.D. Fla. Feb 14, 2008) (Docket Entry No. 32); Burnette v. Bayer Corp., No. 7:07-cv-2238 (N.D. Ala. Feb. 13, 2008) (Docket Entry No. 15); Davis v. Bayer Corp., No. 3:07-cv-00115 (M.D. Tenn. Feb. 8, 2008) (Docket Entry No. 101); Durkin v. Bayer Corp., No. 1:07-cv-7162 (N.D. Ill. Feb. 6, 2008) (Docket Entry Nos. 19 and 20); Fast v. Bayer Corp., No. 5:07-cv-00082 (N.D. W. Va. Feb. 19, 2008) (Docket Entry No. 41); Lanham v. Bayer Corp., No. 4:07-cv-1687 (S.D. Tex. Feb. 5, 2008) (Docket Entry No. 62); Morrill v. Bayer Pharmaceuticals Corp., No. 8:07-cv-819-T-27 (M.D. Fla. Feb. 14, 2008) (Docket Entry No. 53); O'Connor v. Bayer Corp., No. 3:07-cv-0633 (S.D. Cal. Feb. 14, 2008) (Docket Entry No. 40); Pesl v. Bayer Corp., No. 4:07-cv-02819 (S.D. Tex. Feb. 5, 2008) (Docket Entry No. 21); Sessums v. Bayer Corp., No. 3:07-cv-00436 (S.D. Miss. Mar. 20, 2008) (Docket Entry No. 34); Ware v. Bayer Corp., No. 5:07-cv-1305 (C.D. Cal. Feb. 13, 2008) (Docket Entry No. 14); Wease v. Bayer Corp., No. 1:07-cv-1659 (N.D. Ga. Feb. 15, 2008) (Docket Entry No. 44); and Williams v. Bayer Corp., No. 1:07-cv-0004 (M.D. Tenn. Feb. 15, 2008) (administrative closure, Docket Entry No. 75).

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is granted, all of the Court's time, energy, and acquired knowledge regarding this action and its pretrial procedures will be wasted"). II. A STAY WOULD AVOID THE RISK OF UNDUE PREJUDICE TO DEFENDANT. An equally important consideration supporting a stay is the risk of undue prejudice to defendant. A defendant litigating related cases in multiple venues will be required to address similar issues and respond to similar discovery requests repeatedly. See American Seafood v. Magnolia Processing, Civ. A. Nos. 92-1030, 92-1086, 1992 WL 102762, at *2 (E.D. Pa. May 7, 1992). Voluntary coordination among counsel can alleviate this burden to some degree, but the prospects for successful and uniform collaboration recede as the number of actions increases. See Fosamax, 444 F. Supp. 2d at 1349. The practical solution is to stay all proceedings until the actions can be consolidated in a single court, which can craft a coordinated pretrial schedule. See id. ("While we applaud every cooperative effort undertaken by parties to any litigation, transfer under Section 1407 will offer the benefit of placing all actions in this docket before a single judge who can structure pretrial proceedings to consider all parties' legitimate discovery needs, in addition to ensuring that common parties and witnesses are not subjected to discovery demands that duplicate activity that will occur or has already occurred in other actions."); American Seafood, 1992 WL 102762, at *2 ("The duplicative motion practice and discovery proceedings demonstrate that judicial economy and prejudice to the defendants weigh heavily in favor of [a] stay."). As additional scheduling orders are entered and as additional Trasylol® cases are filed,3 the risk increases that the parties will be unable to coordinate pretrial schedules and that defendant will be exposed to conflicting discovery obligations and deadlines ­ one of the principal reasons why defendant have moved to establish a Trasylol® MDL.

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Since January 14, 2008, 16 new Trasylol® cases have been filed in or removed to eight federal district courts.

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This problem will become more acute once depositions commence. Preparing and producing a corporate official or employee for a deposition entails significant costs, including a substantial loss of time and productivity. One of the advantages of an MDL proceeding is that the MDL judge can implement a coordinated deposition program applicable to even the most recently filed Trasylol® cases, thereby minimizing the number of depositions that any one corporate official or employee is required to give. This advantage potentially is undermined if depositions begin in individual Trasylol® cases before the MDL judge has an opportunity to implement a coordinated deposition program. III. A STAY WOULD NOT PREJUDICE PLAINTIFF. A stay of these proceedings will not prejudice plaintiff. The stay will be in effect only until the Panel transfers this case to the MDL; there will be no long-term delay in the litigation. See Republic of Venezuela, 1999 WL 33911677 at *2; American Seafood, 1992 WL 102762 at *2. Depositions have not yet started, and defendant anticipates that this stay would defer the start of depositions for just a few months. This very modest delay in the start of depositions is more than justified by the substantial savings in time and costs that will be achieved by having a coordinated deposition program. As one district court noted, while there may be "some initial delay, once the cases are coordinated and the defendants are able to respond to all the complaints in a coordinated manner, more time may well be saved than was lost." Rosenfeld v. Hartford Fire Ins. Co., Nos. 88-2153, 88-2252, 1988 WL 49065, at *2 (S.D.N.Y. May 12, 1988); see also North v. Merck & Co., No. 05-CV-6475L, 2005 WL 2921638, at *2 (W.D.N.Y. Nov. 4, 2005) (granting motion to stay and noting that risk of hardship to defendant of engaging in duplicative motions practice and discovery outweighed any possible prejudice to plaintiff); Arthur-Magna, Inc. v. Del-Val Fin. Corp., Civ. A. No. 90-4378, 1991 WL 13725, at *1 (D.N.J. Feb. 4, 1991) ("even if a temporary stay can be characterized as a delay prejudicial to plaintiff, there are considerations of judicial economy and hardship to defendants that are compelling enough to warrant such a delay").

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CONCLUSION For the foregoing reasons, defendant respectfully requests that this Court enter an order staying all proceedings in this case until the Judicial Panel on Multidistrict Litigation transfers this action to the Trasylol MDL for consolidated and coordinated pretrial proceedings.4 Dated: April 14, 2008 SIDLEY AUSTIN LLP

By: /s/ Catherine Valerio Barrad Catherine Valerio Barrad Attorneys for Defendant Bayer Corporation

The requested stay would extend to all obligations under Federal Rules of Civil Procedure 16 and 26, and under any other provisions or orders governing pretrial or trial proceedings in this case.

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UNITED STATES JUDICIAL PANEL on MULTIDISTRICT LITIGATION

Apr 07, 2008

IN RE: TRASYLOL PRODUCTS LIABILITY LITIGATION

MDL No. 1928

TRANSFER ORDER Before the entire Panel*: Defendants1 have moved, pursuant to 28 U.S.C. § 1407, for coordinated or consolidated pretrial proceedings of this litigation in the District of Connecticut or, as stated by counsel at oral argument, the Northern District of Georgia. Plaintiffs in six actions and two potential tag-along actions support centralization and variously prefer selection of one or more of the following districts as the transferee district: the Northern District of California, the Middle District of Florida, the Southern District of Florida, the Northern District of Georgia, or the Southern District of Ohio. Plaintiffs in four actions and a potential tag-along action oppose centralization. In addition to the previously-mentioned districts, these plaintiffs alternatively support centralization in the Northern District of Illinois. This litigation currently consists of eighteen actions listed on Schedule A and pending in fourteen districts as follows: two actions each in the Northern District of California, the Middle District of Florida, the Middle District of Tennessee, and the Southern District of Texas; and an action each in the Northern District of Alabama, the Central District of California, the Southern District of California, the Southern District of Florida, the Middle District of Georgia, the Northern District of Georgia, the Northern District of Illinois, the Western District of Louisiana, the Southern District of Mississippi, and the Northern District of West Virginia.2 On the basis of the papers filed and hearing session held, we find that these eighteen actions involve common questions of fact, and that centralization under Section 1407 in the Southern
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Judge Scirica did not participate in the disposition of this matter.

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Bayer Corp.; Bayer Healthcare Pharmaceuticals, Inc.; Bayer Healthcare, LLC; Bayer AG; and Bayer Healthcare AG (collectively Bayer). In addition to the eighteen actions now before the Panel, the parties have notified the Panel of fourteen related actions pending in various districts across the country. These actions and any other related actions will be treated as potential tag-along actions. See Rules 7.4 and 7.5, R.P.J.P.M.L., 199 F.R.D. 425, 435-36 (2001).
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-2District of Florida will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. All actions share factual questions regarding the safety profile of the drug Trayslol, which is used to reduce blood loss in patients during coronary artery bypass graft surgery, and the warnings given by Bayer about the drug. Centralization under Section 1407 will eliminate duplicative discovery; prevent inconsistent pretrial rulings; and conserve the resources of the parties, their counsel and the judiciary. For this litigation that is nationwide in scope, the parties have proposed several forums, any number of which could suitably serve as the transferee district. After careful consideration, we are persuaded that the Southern District of Florida is an appropriate transferee forum. The Southern District of Florida, where a constituent action is pending, currently has a relatively low number of MDL dockets and offers an accessible metropolitan location. Further, by centralizing this litigation before Judge Donald M. Middlebrooks, we are assigning this litigation to a jurist who has the experience to 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 Southern District of Florida are transferred to the Southern District of Florida and, with the consent of that court, assigned to the Honorable Donald M. Middlebrooks for coordinated or consolidated pretrial proceedings with the action pending there and listed on Schedule A.

PANEL ON MULTIDISTRICT LITIGATION

_________________________________________ John G. Heyburn II Chairman D. Lowell Jensen Robert L. Miller, Jr. David R. Hansen J. Frederick Motz Kathryn H. Vratil Anthony J. Scirica*

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IN RE: TRASYLOL PRODUCTS LIABILITY LITIGATION

MDL No. 1928

SCHEDULE A

Northern District of Alabama Bobbie S. Burnette, etc. v. Bayer Corp., et al., C.A. No. 7:07-2238 Central District of California Sheila Ware v. Bayer Corp., et al., C.A. No. 5:07-1305 Northern District of California Samuel Nitzberg, et al. v. Bayer Corp., C.A. No. 4:07-4399 Lupe De Leon, et al. v. Bayer Pharmaceuticals Corp., C.A. No. 4:07-6206 Southern District of California Michael O'Connor v. Bayer Corp., et al., C.A. No. 3:07-633 Middle District of Florida Deborah Bakan, etc. v. Bayer Corp., et al., C.A. No. 8:07-220 Melissa Morrill, etc. v. Bayer Pharmaceuticals Corp., et al., C.A. No. 8:07-819 Southern District of Florida Ismael Rodriguez, et al. v. Bayer Corp., et al., C.A. No. 9:07-81172 Middle District of Georgia Sherry L. Shaw, etc. v. Bayer Healthcare, et al., C.A. No. 4:07-176 Northern District of Georgia David E. Wease, et al. v. Bayer Corp., et al., C.A. No. 1:07-1659

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- A2 MDL No. 1928 Schedule A (Continued)

Northern District of Illinois Thomas W. Durkin, etc. v. Bayer Corp., et al., C.A. No. 1:07-7162 Western District of Louisiana Evelyn Moreaux Reider, et al. v. Bayer Corp., et al., C.A. No. 2:07-1688 Southern District of Mississippi Jonnie Sessums, etc. v. Bayer AG, et al., C.A. No. 3:07-436 Middle District of Tennessee Ada M. Williams v. Bayer Corp., et al., C.A. No. 1:07-4 Linda L. Davis v. Bayer Corp., et al., C.A. No. 3:07-115 Southern District of Texas Kenneth L. Lanham v. Bayer Corp., et al., C.A. No. 4:07-1687 Vance Pesl, etc. v. Bayer Corp., et al., C.A. No. 4:07-2819 Northern District of West Virginia Crystal Fast, etc. v. Bayer Corp., et al., C.A. No. 5:07-82

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Catherine Valerio Barrad (SBN 168897) [email protected] Christine Kim Son (SBN 223190) [email protected] J. P. Pecht (SBN 233708) [email protected] SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 4000 Los Angeles, California 90013-1010 Telephone: (213) 896-6000 Facsimile: (213) 896-6600 Attorneys For Defendant Bayer Corporation UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JOINT STIPULATION TO STAY

) Case No. 3:08-cv-01655 SI JEANNE DIANE COLLINS, as surviving statutory beneficiary for the wrongful death of ) Assigned to: Honorable Susan Illston ) FLOYD COLLINS, ) JOINT STIPULATION TO STAY ) PROCEEDINGS PURSUANT TO LOCAL Plaintiff, ) RULE 7-12 ) v. ) DEFENDANT'S UNOPPOSED MOTION FOR ) ADMINISTRATIVE RELIEF TO STAY BAYER CORPORATION, a Pennsylvania PROCEEDINGS PENDING TRANSFER TO corporation, aka, BAYER HEALTHCARE and ) MULTIDISTRICT LITIGATION PURSUANT ) TO LOCAL RULE 7-11 FILED BAYER AG; and MCKESSON ) CONCURRENTLY CORPORATION, a Delaware corporation; ) JOHN DOES 1-100 and ABC ) STIPULATED [PROPOSED] ORDER CORPORATIONS 1-100, ) LODGED CONCURRENTLY Defendants. ) )

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Plaintiff and Defendant Bayer Corporation hereby submit this joint stipulation to stay proceedings until the Judicial Panel on Multidistrict Litigation transfers this case to MDL No. 1928 for consolidated and coordinated pretrial proceedings. The requested stay would extend to all deadlines and discovery obligations under Federal Rules of Civil Procedure 16, 26, 33, and 34, and under any other provisions or orders governing pretrial or trial proceedings in this case. Plaintiff will not file a motion to remand this action to state court. Dated: April 14, 2008 SIDLEY AUSTIN LLP

By: /s/ Catherine Valerio Barrad Catherine Valerio Barrad Christine Son Attorneys for Defendants Bayer Corporation

Dated: April 14, 2008

PHILLIPS & ASSOCIATES

By: /s/ Lowell W. Finson Robert F. Clarke Lowell W. Finson Attorneys for Plaintiff

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JOINT STIPULATION TO STAY

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Catherine Valerio Barrad (SBN 168897) [email protected] Christine Kim Son (SBN 223190) [email protected] J. P. Pecht (SBN 233708) [email protected] SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 4000 Los Angeles, California 90013-1010 Telephone: (213) 896-6000 Facsimile: (213) 896-6600 Attorneys For Defendant Bayer Corporation UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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[PROPOSED] ORDER

) Case No. 3:08-cv-01655 SI JEANNE DIANE COLLINS, as surviving statutory beneficiary for the wrongful death of ) Assigned to: Honorable Susan Illston ) FLOYD COLLINS, ) ) STIPULATED [PROPOSED] ORDER RE Plaintiff, ) DEFENDANT'S UNOPPOSED MOTION ) FOR ADMINISTRATIVE RELIEF TO v. ) STAY PROCEEDINGS PENDING ) TRANSFER TO MULTIDISTRICT BAYER CORPORATION, a Pennsylvania LITIGATION PURSUANT TO LOCAL corporation, aka, BAYER HEALTHCARE and ) RULE 7-11 ) BAYER AG; and MCKESSON ) CORPORATION, a Delaware corporation; ) JOHN DOES 1-100 and ABC ) CORPORATIONS 1-100, ) Defendants. ) )

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Upon consideration of the Defendant's Unopposed Motion for Administrative Relief To Stay Proceedings Pending Transfer To Multidistrict Litigation Pursuant To Local Rule 7-11 and the parties' related Stipulation: IT IS HEREBY ORDERED that all deadlines and proceedings are STAYED in the above-captioned case pending transfer of this case by the Judicial Panel on Multidistrict Litigation to MDL No. 1928, In re Trasylol Products Liability Litigation. PURSUANT TO STIPULATION, IT IS SO ORDERED. This ____ day of April, 2008.

United States District Judge

[PROPOSED] ORDER

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