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Estate of Brockel v. Purdue Pharma L.P.

United States District Court, S.D. Alabama, Southern Division

January 3, 2018

THE ESTATE OF BRUCE BROCKEL, Deceased, by and through DONNA BROCKEL, as Personal Representative, Plaintiff,
v.
PURDUE PHARMA L.P., et al., Defendants.

          ORDER

          KRISTI K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE

         This action is before the Court on Defendant Purdue Pharma L.P (Purdue) and the “Endo Defendants” (Endo) (for purposes of this order, defendants)' joint Motion to Stay (Doc. 23), Plaintiff's response (Doc. 25) and defendants' Reply (Doc. 40).

         I. Background

         On October 25, 2017, this case was filed in the Circuit Court of Mobile County Alabama against a number of defendants (The Estate of Bruce Brockel v. John Patrick Couch, et al, 02-CV-2017-902787.00). (Doc. 1-1). On November 27, 2017, defendants removed this case to this Court. (Doc. 1). On December 5, 2017, Plaintiff filed a motion to remand (based on fraudulent joinder). (Doc. 20). On December 13, 2017, defendants filed a motion to stay this case (all deadlines, rulings, etc. and briefing on the motion to remand) pending a final decision by the Judicial Panel on Multidistrict Litigation (JPML) on whether to transfer this case to the multidistrict litigation in the Northern District of Ohio (MDL) (In re: National Prescription Opiate Litigation, Case No. 1:17CV2804, before Judge Polster). (Doc. 23). Defendants seek entry of a stay of all rulings (including on Plaintiff's pending motion to remand) and deadlines in this case pending the MDL proceedings, arguing that such is needed to conserve the court and the parties' resources as well as to avoid duplicative, costly and potentially irrelevant dispositive motion practice and litigation.

         On September 25, 2017, a group of plaintiffs filed a motion to transfer and consolidate 66 substantially similar federal actions filed on behalf of counties, cities or other governmental entities in 11 various federal courts, alleging wrongful conduct by the defendants in the chain of manufacture/distribution of prescription opioid painkillers, as well as tag-along cases filed in the future. (Docs. 25-1; 25-2). On December 5, 2017, a Judicial Panel on Multidistrict Litigation (JPML) formed the subject multidistrict litigation (MDL) in the Northern District of Ohio, and transferred 62 actions to the MDL for consolidation as those cases “concern the alleged improper marketing of and inappropriate distribution of various prescription opiate medications into cities, states and towns across the country” and plaintiffs in those cases “are cities, counties and states.” (Doc. 25-3, MDL NO. 2804). No individuals were part of this original transfer order. The JMPL added, however, that while the cases before it involved claims “by political subdivisions, we have been notified of potential tag-along cases brought by individuals, consumers, hospitals and third party payors…this litigation might evolve to include additional categories of plaintiffs and defendants, as well as different types of claims.” (Id. at 4-5). On December 6, 2017, the MDL Panel conditionally transferred 117 additional actions to the MDL, and all plaintiffs but two (2) appear to be brought by governmental entities, hospitals or third party payors. (Doc. 25-4, MDL NO. 2804, CTO-1).

         On December 12, 2017, the MDL Panel conditionally transferred 11 additional actions to the MDL, including this case, and all but the present case appear to be brought by plaintiffs which are governmental entities, hospitals or third party payors. (Doc. 25-6 - CTO 2). On December 13, 2017, the MDL judge suggested there were 3 categories of cases before him: 1) government plaintiffs (cities, counties, states); 2) institutional plaintiffs (ERISA pension, health and pension, welfare funds, etc.); and 3) “some cases filed by individuals or groups of individuals[.]” (Doc. 40-1 at 4-5; Doc. 25-7 at 5-6 -- 12/13/17 hearing). The Judge stated that he would have to decide “whether I am going to keep the non government cases in this MDL…or whether…they need to go back….The issue in my mind, it is an open question on the….individual plaintiffs [whether they would stay in the MDL].” (Doc. 25-7 at 5, 22-23). The Judge referenced pending motions to remand “around the country” based on diversity/fraudulent joinder: “[m]y thought is to just leave them hanging for a while[]” to see if there is “some framework for some resolution[]” as “I have limited time and limited staff, and I just don't want to be tied up on individual remand motions…. “ (Doc. 25-7 at 16, 22; see also Doc. 25-10 at 3 12/14/17 order). The drug manufacturer defendants' counsel acknowledged “some of the personal injury type cases are a little different than the others. We recognize that….” (Doc. 25-7 at 27-28). The Judge asked counsel to provide suggestions for any individual cases that may arise. (Doc. 25-10 at 4).

         On December 19, 2017, Plaintiff filed a timely Notice of Opposition to the transfer. (Doc. 25-8; Doc. 390 MDL). The JPML set a schedule, for motions to vacate the conditional transfer order, with briefing to conclude by January 24, 2018. (Doc. 35 at 2; Doc. 400 MDL). Plaintiff states it will file a motion to vacate the conditional transfer order on January 3, 2018.

         II. Discussion

         A. Relevant Law

         As set forth by this Court in Maiben v. CSX Transp., Inc., 2009 WL 1211186, *1 (May 1, 2009) (footnote omitted):

         “The District Court has broad discretion to stay proceedings as an incident to its power to control its own docket.” Clinton v. Jones, 520 U.S. 681, 706…(1997).[] …“How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.” Landis v. North American Co., 299 U.S. 248, 254- 55…(1936).…“the court, in its sound discretion, must assess and balance the nature and substantiality of the injustices claimed on either side.” Feld Entertainment, Inc. v. A.S.P.C.A., 523 F.Supp.2d 1, 3 (D.D.C.2007) (citations omitted).

         Concerning requests for stays, as explained in Hess v. Volkswagen Group of Am., Inc., 2016

WL 3483166, *3-4 (N.D. Ala. Jun. 27, 2016) (emphasis added):

         “The inherent discretionary authority of the district court to stay litigation pending the outcome of [a] related proceeding in another forum is not questioned.” CTI-Container Leasing v. Uiterwyk Corp.,685 F.2d 1284, 1288 (11th Cir. 1982)….Rule 18 of the Rules of the Judicial Panel on Multidistrict Litigation indicates that pendency of a conditional transfer order to an MDL does not limit the pretrial jurisdiction of the district court that is potentially the transfer court; accordingly “a district judge should not automatically stay discovery, postpone rulings on pending motions, or generally suspend further rulings upon a parties' motion to the MDL ...


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