This post is from the non-RS side of the blog.  

Plaintiffs in the Cymbalta litigation tried and failed to create an MDL.  They filed cases in California, followed up with more filings in 23 other states around the country, and then asked the Judicial Panel on Multidistrict Litigation to consolidate all of it for them. But the JPML refused.  As the California court later described it:  

The JPML declined to create an MDL, reasoning that while “[u]nquestionably, these actions share factual issues concerning Cymbalta’s development, marketing, labeling, and sale,” the combined effect of the varying procedural postures, the conduct of common discovery in the earliest-filed actions, and the limited number of counsel-two firms representing plaintiff, and a common counsel for defendant—“suggests that informal coordination with respect to the remaining common discovery, as well as other pretrial matters, should be practicable.”

Nelson–Devlin v. Eli Lilly & Co., 2015 WL 6436700, at *1 (E.D. Cal. Sep. 15, 2015) (quoting In re: Cymbalta (Duloxetine) Products Liab. Litig., 65 F. Supp. 3d 1393, 1394 (J.P.M.L. 2014)).

Plaintiffs are now apparently trying to use the federal rules to transfer many of the cases that they filed around the country to the South District of Indiana, and they are supposedly taking another shot at an MDL.  Id.  We’ll see how that goes.

But, in the meantime, Ely Lilly delivered a blow to plaintiffs’ forum game plan.  By bringing down the microscope on the multi-plaintiff actions that the plaintiffs’ lawyers filed in California federal court, Ely Lilly exposed the home states of those plaintiffs.  And the vast majority of them had nothing to do with California.  Here’s the line-up of their actual home states:

In the Nelson–Devlin action, filed in this district on December 2, 2014, there are 22 plaintiffs, 15 non-Californians and 7 Californians.  The nonresident plaintiffs are citizens of Alabama, Arkansas, Kentucky, Pennsylvania, South Carolina, Tennessee and Texas. 

In the Ben action, filed on December 15, 2014, there are 27 plaintiffs from 14 different states.  Two plaintiffs are citizens of California.  The rest are citizens of Alabama, Arizona, Georgia, Illinois, Iowa, Kentucky, Maine, Nevada, North Carolina, Oklahoma, South Carolina, Tennessee and Texas. 

In the Wolff action, filed on December 30, 2014, there are 31 plaintiffs from 16 different states; two plaintiffs reside in California.  The remaining plaintiffs are citizens of Alabama, Connecticut, Florida, Georgia, Idaho, Illinois, Louisiana, Montana, New Mexico, North Carolina, Pennsylvania, South Carolina, Tennessee, Texas and West Virginia. 

Id. at *2.  It seems that less than 15% of the plaintiffs were from California.

So what were these plaintiffs doing in California in the first place? Eli Lilly asked that very question.  And then it asked the Central District of California to send them away.  And it did.  

Eli Lilly first tried to get their claims dismissed outright on personal jurisdiction grounds.  The court wouldn’t do that, concerned that such a dismissal would render plaintiffs’ claims time-barred.  Id. at *5 (“Plaintiffs are subject to various statutes of limitation, meaning their claims could be time-barred if they are dismissed.”).  

The court was much more receptive to severing and transferring these plaintiffs.  The court found severance appropriate because the non-California plaintiffs didn’t satisfy FRCP 20’s requirements for joining with the California plaintiffs in the first place.  While their claims arguably arose from the same transaction – Eli Lilly’s decision to market Cymbalta and allegedly downplay its risks – the multiple and different state laws involved in the non-California cases meant that they did not have questions of law in common with the California plaintiffs’ cases, which were brought under California law.  Forcing a California court to address a hodge-podge of other states’ laws does not promote judicial efficiency: 

[T]he non-California plaintiffs experienced their injuries in different states, and their claims are subject to different state laws.  See Orr v. Bank of Am., 285 F.3d 764, 772 & n. 4 (9th Cir.2002) (noting that California has little interest in having its laws apply where alleged torts occurred out of state, where plaintiffs are out-of-state residents and defendants are located out of state).  Rule 20“is designed to promote judicial economy, and reduce inconvenience, delay, and added expense.”  [Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir.1997)].  Maintaining the various non-California plaintiffs in the same action, which would require the application of sixteen different state laws, would not promote judicial economy as joinder of the California plaintiffs does.  See, e.g., Helm v. Alderwoods Grp. Inc., No. C 08–01184 SI, 2011 WL 2837411, at *2 (N.D. Cal. July 18, 2011) (finding severance appropriate because the plaintiffs were numerous, worked in different positions in different states, and raised claims only under state law).  

Id. at *3.  

So the non-California plaintiffs’ litigation bags were packed.  But where to send them?  Eli Lilly argued that convenience dictated sending plaintiffs to their respective home states, where they purchased Cymbalta and where witnesses such as the plaintiffs themselves, their doctors, their families, and their friends were located.  The plaintiffs preferred the Southern District of Indiana, Ely Lilly’s home district, where Eli Lilly’s witnesses and documents can be found.  The court found the “convenience” factor to be a tie.  Id. at *7.  So it looked to judicial efficiency and chose the Southern District of Indiana, which already had many Cymbalta cases pending.  Id.

So, Eli Lilly got much of what it wanted.  Over 65 plaintiffs were moved out of California, where they had no business suing in the first place.  And, while Lilly would have preferred to send each plaintiff to her home state – no doubt an unattractive outcome for the plaintiffs’ lawyer – it ended up moving those plaintiffs to Lilly’s home court.  That’s got to be better than California.