Photo of Stephen McConnell

Ninety-nine years ago tomorrow Georgia Tech administered the most lop-sided beat-down in college football history, edging Cumberland University 222-0.  (By the way, who was the head coach of Georgia Tech who presided over that delightful display of sportsmanship?  Find the answer below.)  Today we blog about a legal beat-down, though in this case it is the plaintiff-losers – actually, the plaintiff lawyers – who were the bad sports.  The case involves a firm client, though we were not involved.  There is still an open issue remaining regarding transfer, so we will do our best to resist spiking the ball.  Instead, we will simply gather in the victory formation as we report the court’s holding as if we were writing a box-score, sans razzle and dazzle.

The case is Hill v. Eli Lilly & Co., 2015 U.S. Dist. LEXIS 130934 (S.D. Indiana Sept. 29, 2015), and is another step in the saga of Cymbalta plaintiff lawyers who keep pushing the litigation up a hill in an effort to create a class action, mass action, MDL, or whatever will allow them to park as many meritless cases in one place, only to have that litigation roll back down the hill, resulting in crushed toes, directed verdicts, and jury findings of no liability.  The judge in the Hill case saw through the plaintiff shenanigans and granted a motion to sever plaintiffs who had been joined in a transparent and meritless effort to create a mini-MDL.

Before granting the motion to sever, the judge supplied a bit of background, so we will, too.  Plaintiffs’ counsel, often the very same lawyers, have been filing Cymbalta cases around the country.  There are various claims, but the central allegation is that the warnings regarding withdrawal symptoms were inadequate.  Plaintiffs tried to certify a class in C.D. Cal.  They failed.  Plaintiffs petitioned for creation of a Multi-district Litigation.  They failed.  Plaintiffs’ counsel then filed six Cymbalta lawsuit in S.D. Indiana, all but one involving multiple plaintiffs from different states.  Other plaintiffs’ counsel pursued the same strategy.  Some plaintiffs who had filed their cases in other federal districts moved to transfer those cases to S.D. Indiana, mostly, though not always, without success.  Then plaintiffs’ counsel showed their hand by again seeking creation of an MDL, this time in S.D. Indiana.  If at first you don’t succeed, file, file again.

The Hill case included six plaintiffs.  They hailed from South Carolina, Kentucky, Texas, Alabama, Tennessee, and Idaho.  They all took Cymbalta and claimed injuries, but after that their facts were different.  The defendant moved to sever these claims into separate actions and also moved to transfer the cases to the plaintiffs’ home states.  Federal Rule of Civil Procedure 20 allows joinder of parties when their claims arise out of the same transaction or occurrence and when there are common questions of fact and law.  Rule 21 governs a motion to sever the different plaintiff claims.  In addition to the issues of whether the claims involve the same transaction/occurrence and common questions of fact/law, severance depends on whether severance would further or hinder judicial  economy, would avoid prejudice, and whether different witnesses and documentary proof would be required for the separate claims.  Remarkably, every factor favored severance.  It might not be 222-0, but it certainly was not a close call.

The court’s key holding was that each plaintiff’s usage of Cymbalta was a separate transaction.  The plaintiffs argued that all of the cases arose from the same transaction, namely the development of Cymbalta, but that position was “simplistic” and, more to the point, wrong.  The claims were necessarily highly individualized, turning on what their doctors knew, said, and decided.  The Hill court had no difficulty siding with the “consistent reluctance of federal courts to treat products liability claims as arising from the same transaction or occurrence merely because they relate to the same medicine or medical device.”  On this basis alone – that the claims arose from separate transactions – severance was warranted.  But the Hill court piled on the points by showing how all the other factors supported severance.  The different plaintiffs’ claims depended on different facts pertaining to why they took the medicine, when they took it, what happened, etc.  Those plaintiffs also brought their claims under different state laws.  Further, the particularity of the factual and legal issues in the different plaintiffs’ claims suggested that uniform treatment of them was highly unlikely.  So much for the implication that joinder would serve judicial economy.  Then the court flagged the plaintiffs’ lawyers for chutzpah:

The Court also recognizes that keeping Plaintiffs’ claims joined will have little to no positive impact on each Plaintiff, but will be much more convenient for Plaintiffs’ counsel. Indeed, Plaintiffs’ counsel notes they have filed “hundreds” of Cymbalta-related cases around the country, that there are “thousands of cases within the pipeline,” and the Plaintiffs face a “logistical quagmire.”  But it is really Plaintiffs’ counsel that faces a “logistical quagmire,” and it is a quagmire of counsel’s own making.  (emphasis in original)

At this point, the plaintiffs’ counsel must have started wishing that the defendant’s motion to transfer the cases to the home jurisdictions would be granted.

The Hill court also saw severance as making more sense in terms of avoiding prejudice to the defendant.  Finally, while common, company-oriented discovery was largely done, plaintiff-specific discovery remained, and remained in scattered jurisdictions.  In short, it made no sense to keep the different plaintiffs together in one case.  Accordingly, the court granted the severance motion and ordered the cases to be refiled separately, with every plaintiff save the first required to pay a separate $400.00 filing fee.  (That last point always bothers plaintiffs’ counsel quite a lot.  Consequently, we like it.)

The Hill court punted on the transfer motion, noting that the arguments on that issue were premised on the cases being kept together.  Now that the cases were to be severed, it was time to wait and see.  Thus, the court denied the defendant’s transfer motion, but without prejudice.  We cannot imagine that the plaintiffs’ counsel regards that as anything resembling a win.  We do not know whether this case – sorry, whether these cases –  are in the third quarter, fourth quarter, or final two minutes, but we are confident that the plaintiffs are losing big-time.

(And who was that Georgia Tech coach who ran up the score so brutally?   None other than John Heisman, whose name adorns college football’s most hallowed trophy.  Heisman also graduated from the University of Pennsylvania Law School, where we teach a class.  And, yes, we definitely teach our students to run up the score.)

(We cannot leave off without citing another piece of college football beat-down history.  Only once in the last 50 years has a college team scored 100 points against a major program.  That was the Houston Cougars, who on November 23, 1968 prevailed over Tulsa 100-6.  On the roster for the losing Tulsa squad as a fellow who later became a successful jury consultant and even more successful TV celebrity:  Dr. Phil.  He has referred to this particular game as a lesson in adversity.  The triumphant Cougars squad had several folks who went on to achieve success in various fields.  For example, Wade Phillips was a linebacker on that team, and he has had a long, fine career as an NFL coach.  It is important to understand that the Cougars did not try to embarrass Tulsa, at least not too much.  The starters were benched after things got out of hand, but the substitutes kept scoring.  One defensive back was put in as a receiver, and even he managed to reel in a touchdown pass.  That was Larry Gatlin, who attained stardom, not on the professional gridiron, but on the country music stage.  Gatlin caught that td pass from the back-up quarterback.  The starter had been pulled.  Perhaps you have heard of that starting quarterback.  His name is still on a number of school records, which is remarkable considering the amazing list of quarterbacks who came out of the Cougars’ program.  Anyway, he would later become one of the most formidable plaintiff attorneys in the country.  At least once or twice, we have felt like he thumped us by 100 points.   His modesty keeps us from naming him, though it is easy enough for you to look it up.)