Photo of Michelle Yeary

This case is from the non-Reed Smith side of the blog only.

Today’s case is a simple and straightforward message to plaintiffs – you can’t use §1404 transfers to create an MDL after the Judicial Panel on Multidistrict Litigation (“JPML”) has said no.  That is precisely what plaintiffs were asking the court to do in Krupp v. Eli Lilly and Co., 2015 U.S. Dist. LEXIS 83762 (M.D. Fla. Apr. 6, 2015).  Apparently two plaintiffs’ firms had filed 47 Cymbalta cases in 29 different federal courts around the country (presumably plaintiffs’ home jurisdictions) and then petitioned the JPML for the creation of an MDL, alleging an additional 2700 claims in the pipeline.  The JPML declined finding that the cases were in different procedural postures, the bulk of the common discovery had already taken place and with only 2 plaintiffs’ firms, coordination should not prove burdensome.  Id. at *3.

Not happy with that result, plaintiffs appear now to be asking the 29 federal courts with pending Cymbalta cases to transfer them to the Southern District of Indiana – defendant’s home jurisdiction.  Plaintiffs allege that they will then also file the rest of their cases there to create “a de facto MDL.”  Id. at *4.  Plaintiffs argue that transfer of all cases (i) will allow plaintiffs to share costs, (ii) will be more convenient to defendant, and (iii) will promote judicial efficiency.  Id.  Even assuming these are true assertions – they don’t justify a plaintiff’s request for a §1404 transfer.

First and foremost, the substantial deference afforded plaintiff’s choice of forum under §1404 only applies to plaintiff’s first choice.  Id. at *8-9.  Otherwise, plaintiff’s already substantial control over forum would be completely unchecked – they would be able to use transfer motions to shop between and among jurisdictions and judges at will.

In this case, the court assessed the remaining transfer factors as more or less neutral.  As for convenience, the court was somewhat suspicious of plaintiff’s claim that litigating her case 1000 miles from home would in fact be more convenient.  Id. at *9.  As we know, many of the key witnesses – plaintiff’s doctors – are in plaintiff’s home state, whereas with national and international pharmaceutical companies, corporate witnesses can be scattered far from defendant’s home state.  Id. at *10-11.  With only 3 cases currently pending in Indiana, the court also found the convenience based on cost-reduction argument speculative at best.  Id. at *10.  As for judicial economy, the argument is again based on the “deluge” of cases yet to be filed and the as yet unfulfilled prophecy that the pending cases will all be transferred.  Id. at *11-12.

Even if plaintiff’s statements about things to come are accurate, they were all previously raised and considered by the JPML when it declined to create an MDL.  And the court correctly acknowledges that “permitting Plaintiffs to use a §1404 transfer as a pseudo-appellate victory for unhappy MDL petitioners raises significant comity concerns.”  Id. at *12 (citation omitted). In other words, nice try plaintiffs, but we aren’t going to second-guess the JPML.  Plaintiffs could certainly go ahead file those “pipeline” cases and then re-petition the JPML with changed circumstances, but until then or until some other showing that the equation as to convenience and economy have changed – plaintiffs have to live with their choice.  That choice was to file these cases in their home states.  Maybe their MDL argument would have been stronger if they had originally filed all in the same court, but they didn’t.  Maybe they were over confident that their MDL arguments would be successful, but they weren’t.  Maybe they thought the district courts wouldn’t see their transfer arguments as shenanigans, but they did.