A couple of weeks ago we discussed the latest entry in the “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.” That was the Hill case in Indiana, where the judge granted a motion to sever plaintiffs from various states who had been joined in a transparent effort to create a mini-MDL. In discussing that decision, we alluded to the persistence of the Cymbalta plaintiffs’ counsel in trying to cobble together some sort of aggregated proceeding to maximize leverage and reduce their own expenses. The only thing more remarkable than plaintiffs’ counsel’s persistence was the way they lost persistently. As so memorably encapsulated in our deathless prose: “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.”
Well, guess what? Now plaintiffs’ counsel lost their latest effort to MDL the Cymbalta litigation. In re Cymbalta Prods Liability Litigation, 2015 WL 5936936 (Oct. 9, 2015). For the Judicial Panel on Multidistrict Litigation, it was an exercise in deja vu. An MDL had been rejected back in December 2014 in Cymbalta I because, even though the different cases involved similar claims that Cymbalta withdrawal could lead to “brain zaps” and other alleged maladies, coordination would have been pointless because the procedural posture of the cases varied significantly, because most of the common discovery had already occurred, and because only a limited number of plaintiffs’ counsel were involved. All of those same factors still existed in October 2015, only more so. Common discovery has advanced even further, with production of millions of pages of documents and with multiple 30(b)(6) depositions, all available to all plaintiffs’ counsel. And let’s not forget that four cases have gone to trial – though it would be understandable if plaintiffs’ counsel tried hard to forget that. Finally, “the record does not show a significant increase in the number of unique counsel.”
Hmmmmmm. Care to hazard a guess as to why that would be?
Centralization denied. Again. One gets the distinct sense that the Judicial Panel is getting tired of this.