Case MDL No. 2459 Document 85 Filed 08/08/13 Page 1 of 3 UNITED STATES JUDICIAL PANEL
Before the Panel: Pursuant to 28 U.S.C. § 1407, plaintiffs in three actions pending in the
District of South Carolina move to centralize this litigation in that district. The litigation encompassesthe five actions listed on Schedule A.1 All responding plaintiffs support centralization, but there is some disagreement as to an appropriate transferee district. Plaintiff in the Eastern District of Virginia constituent action supportscentralization in the District of South Carolina, as do plaintiffs in three potential tag-along actionspending, respectively, in the District of Arizona, the Middle District of Louisiana, and the District ofSouth Carolina. Plaintiffs in the Southern District of Illinois constituent action and a potential tag-along action in the Southern District of Mississippi also support centralization, but argue in favor ofselection of the Southern District of Illinois as transferee district. Plaintiffs in potential tag-alongactions in the Northern District of Illinois (two actions), the Western District of Oklahoma, theEastern District of Texas, and the Northern District of Texas argue for centralization in the NorthernDistrict of Illinois. Common defendant Pfizer Inc. (Pfizer) strenuously opposes centralization.
Upon a cursory review, one might think these cases represent a clear candidate for centralization. The subject actions do share factual issues arising from allegations that taking Pfizer’scholesterol drug Lipitor can result in the development of type 2 diabetes, and that Pfizer failedadequately to warn consumers of this problem. The number of actions pending in this litigationmight, in other circumstances, be sufficient to justify centralization.2 However, other factors weighagainst centralization here. In particular, almost half of the actions currently comprising this litigationare pending in a single district – the District of South Carolina, and many of the actions involvecommon plaintiffs’ counsel. The South Carolina actions already are proceeding in a coordinatedfashion before one judge, and, importantly, Pfizer represents in its brief that it is “ready and willingto work with Plaintiffs’ counsel in the [non-South Carolina] actions to appropriately coordinate anycommon discovery or other pretrial matters across the cases.” Pfizer Mem. Opp., at 1 (ECF No. 18). Given that express representation, the limited number of involved actions, and the overlap amongcounsel, we do not believe that creation of an MDL is necessary at this time.
The Panel has been informed of 23 additional related federal actions.
See, e.g., In re: Propecia (Finasteride) Prods. Liab. Litig., 856 F. Supp. 2d 1334 (J.P.M.L.
2012) (centralizing nine actions pending in six districts). Case MDL No. 2459 Document 85 Filed 08/08/13 Page 2 of 3 Although plaintiffs suggest that the number of Lipitor cases is likely to expand considerably, we are disinclined to take into account the mere possibility of future filings in our centralizationcalculus.3 That is particularly true here. Lipitor came to market in the late 1990’s, and is one of thebest-selling prescription drugs of all time. Virtually all the complaints in these actions cite a labelchange for the drug – as well as other statins – informing patients that increases in blood sugar levelshad been reported with statin use. That label change, however, occurred in February 2012. Yet,more than a year later, only a relative handful of actions have been brought actually alleging a linkbetween an individual’s ingestion of Lipitor and the development of her type 2 diabetes. As always in this type of litigation, a highly individualized inquiry is necessary to determine whether any particular plaintiff developed type 2 diabetes as a result of taking Lipitor. Where fewcases are filed, the balance tips toward allowing the regular litigation process to resolve those cases.
IT IS THEREFORE ORDERED that the motion pursuant to 28 U.S.C. § 1407, for centralization of these five actions is denied. See In re: Intuitive Surgical, Inc., Da Vinci Robotic Surgical Sys. Prods. Liab. Litig., 883 F. Supp. 2d 1339, 1340 (J.P.M.L. 2012) (“While proponents maintain that this litigation mayencompass ‘hundreds’ of cases or ‘over a thousand’ cases, we are presented with, at most, fiveactions.”).
Case MDL No. 2459 Document 85 Filed 08/08/13 Page 3 of 3 IN RE: LIPITOR (ATORVASTATIN CALCIUM) MARKETING,
Kimberly Hines v. Pfizer Inc., C.A. No. 3:13-00404 Evalina Smalls v. Pfizer Inc., C.A. No. 2:13-00796Waltraud Gina Kane v. Pfizer Inc., C.A. No. 2:13-01012Susan Marie Turner v. Pfizer Inc., C.A. No. 2:13-01108 Patricia Colbert v. Pfizer Inc., C.A. No. 2:13-00178


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