Twice this month we’ve reported on “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.”  Let’s make it a trifecta.  Both with our third post and with three more decisions severing the claims of misjoined plaintiffs who have nothing in common except that they each used Cymbalta and they each allege injury.  The cases are Jones v. Eli Lilly, 2015 U.S. Dist. LEXIS 141925 (S.D. Ind. Oct. 19, 2015) (15 plaintiffs from 11 states); DeCrane v. Eli Lilly, 2015 U.S. Dist. LEXIS 141924 (S.D. Ind. Oct. 19, 2015) (2 plaintiffs); Boles v. Eli Lilly, 2015 U.S. Dist. LEXIS 141922 (S.D. Ind. Oct. 19, 2015) (19 plaintiffs from 11 states).

We set out the background of plaintiffs’ counsel’s numerous attempts to create a mass tort in our prior posts here and here. Based on theses earlier decisions, the result in these three cases is really no surprise.  But, it does make for more great precedent on misjoinder and severance.  So, today we’ll throw you some sound bites.  For instance, it is hard to argue claims are properly joined when they are described as:

the claims of fifteen Plaintiffs from eleven different states whose allegations rest on distinct, unrelated factual scenarios: Cymbalta treatment over fifteen different time periods, presumably in eleven different states, for several different conditions....; use of the medicine under the care of multiple healthcare professionals from a range of medical subspecialties, affiliated with different practices and, potentially, varying degrees of exposure to the relevant product labeling; a host of potential co-medications and comorbidities; and, finally, Plaintiffs' particular discontinuation methods (whether abrupt or tapered over varying lengths of time) which allegedly resulted in a range of symptoms of varying type, severity, and duration.

Jones, 2015 U.S. Dist. LEXIS 141925 at *16-17 (all three decisions are virtually identical, so we cite to Jones throughout).

In response to plaintiffs’ arguments that Lilly’s conduct was the “common issue” permitting joinder of these diverse claims, the court noted that what plaintiffs never said was why these particular plaintiffs were joined together.  It appears “claims by people from different states were batched together in haphazard fashion.”  Id. at *18 (emphasis added).  Plaintiffs had no reason why any particular group of plaintiffs was joined together in a single complaint because there is no reason.  See above case description.

The court was never persuaded by any of plaintiffs’ arguments that tried to make Lilly’s conduct “the sun, the moon, and the stars” of the litigation.   While some claims may turn on how the product was marketed and sold generally, “the crux of Plaintiffs’ claim – that Lilly’s actions caused injury to them – do not.”  Id. at *21.  As an example, the court uses allegations of fraud which “likely will not turn on the wording of Lilly’s warning, but rather on whether each Plaintiff’s medical provider – or “learned intermediary” – conveyed that warning to their patient.”  Id.  Quite right.  And because the learned intermediary doctrine comes into play in both fraud and failure to warn claims, the plaintiffs’ individual doctors are the stars of the show.  “So, while there may be some occurrences that are common to Plaintiffs’ claims, the key occurrences (here, Plaintiffs’ interactions with their medical providers) will not be common.”  Id.

Nor would a substantial portion of what plaintiffs need to prove be common:

Each Plaintiff will need to show that Lilly's conduct caused his/her injuries, which will require evidence relating to why his/her health care provider prescribed Cymbalta, the nature of his/her health care provider's knowledge regarding withdrawal from Cymbalta, for what medical condition he/she was taking Cymbalta, how much Cymbalta he/she was taking, how long he/she took Cymbalta, and how he/she attempted to discontinue using Cymbalta. These issues are at the very core of those Plaintiffs' claims, require highly individualized inquiries, and are apparent from Plaintiffs' allegations in the Complaint, which include plaintiffs who took Cymbalta for different amounts of time, for different reasons, likely discontinued Cymbalta using different methods and strategies, and suffered different symptoms. These differences make Plaintiffs' claims improper for joinder.    

Id. at *24. 

The court also saw through plaintiffs’ counsel’s judicial economy arguments.  Primarily because they weren’t arguments about judicial economy at all but rather about plaintiffs’ counsel’s own pockets:

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. …  Plaintiffs' counsel chose to file numerous lawsuits, most with numerous plaintiffs from numerous states, all over the country. The joinder rule does not include convenience to counsel as a consideration. Instead, Plaintiffs' counsel must be prepared to devote the resources needed to effectively litigate each client's claim, and should not file numerous lawsuits on behalf of dozens of clients if unable to do so. Rather than convenience to counsel, the Court is concerned with effectively and efficiently resolving each litigant's controversy.

Id. at *28-29 (emphasis added).  Even plaintiffs’ counsel’s arguments that savings to them would be savings that they could pass on to their clients weren’t enough to get the court to overlook the glaring misjoinder problems with these cases.  The reality is these cases were brought by a handful of plaintiffs’ lawyers who assumed there would be consolidation of some sort and they don’t have the means (financial or otherwise) to litigate them individually and spread out throughout the country.  To this the court said, don’t file what you can’t handle. 

Finally, as it did previously, the court again refused to decide the transfer issue, noting that the arguments on that issue were premised on the cases being kept together.  Thus, the court denied the defendant's transfer motion, but without prejudice. However, likely tired of ruling on the same motions over and over again, the court offered guidance to Lilly regarding what it would be looking for in the renewed transfer motion:

  • an analysis of docket congestion and speed to trial in the transferor and transferee courts, observing that the Southern District of Indiana appears to have a fairly heavy caseload
  • convenience of counsel is not a factor; in other words, don’t go there; and
  • whether defendant is willing to bring its witnesses for live testimony at trial.

Id. at *36-37.  With only the last factor potentially weighing against transfer, this list looks pretty good.  We don’t know where all of the defendant’s witnesses are or what kind of burden that last factor might be, but given the likely benefits of transferring these cases around the country, we sure think it’s worth considering.

We’ll be on the lookout for the transfer decisions to see if this turns out to be the complete trouncing of plaintiffs’ counsel that it should.  Who knows, there may be a Cymbalta case headed to your home jurisdiction in the near future.