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Case MDL No. 2404 Document 64 Filed 12/06/12 Page 1 of 6 UNITED STATES JUDICIAL PANEL
MULTIDISTRICT LITIGATION
IN RE: NEXIUM (ESOMEPRAZOLE)
PRODUCTS LIABILITY LITIGATION
TRANSFER ORDER
Before the Panel:* Pursuant to 28 U.S.C. § 1407, plaintiffs in thirty-six actions pending in
or originating in the Central District of California move to centralize this litigation in the CentralDistrict of California. This litigation currently consists of thirty-nine actions pending in nineteendistrict courts, as listed on Schedule A.1 The actions in this litigation involve products liability claimsagainst AstraZeneca arising from ingestion of the drug Nexium (esomeprazole magnesium), a protonpump inhibitor (PPI) prescribed for the treatment of heartburn, acid-reflux, and inflammation of theesophagus. Plaintiffs allege that Nexium may cause a variety of bone ailments—in particular,osteoporosis, loss of bone density, and bone fractures—and that AstraZeneca failed to adequatelywarn of these potential adverse side effects. All the responding plaintiffs support centralization in the Central District of California. All of the responding defendants2 oppose centralization, but propose different alternative courses ofaction. AstraZeneca and McKesson alternatively suggest that, if this litigation is centralized, theSouthern District of Texas should serve as the transferee district. Takeda alternatively requests thePanel separate and remand the claims against it in the Northern District of California Beatty action. Janssen, a defendant in a potential tag-along action, asks that we exclude that action from anycentralized litigation. In opposing centralization, defendants argue that each action will involve multiple individualized fact issues of causation and product identification that will require discovery unique * Judge Kathryn H. Vratil took no part in the decision of this matter.
1 The parties have notified the Panel of three additional related actions pending in the Northern District of Alabama, the Northern District of Illinois, and the District of Nevada (a fourthpotentially related action was subsequently dismissed). These actions and any other related actionsare potential tag-along actions. See Panel Rule 7.1.
2 The responding defendants are: AstraZeneca Pharmaceuticals LP and AstraZeneca LP (AstraZeneca); McKesson Corporation (McKesson); Takeda Pharmaceuticals U.S.A., Inc., TakedaGlobal Research & Development Center, Inc., Takeda Pharmaceuticals International, Inc., TakedaAmerica Holdings, Inc., and Takeda California, Inc. f/k/a Takeda San Diego, Inc. (Takeda); andJohnson & Johnson and Janssen Pharmaceuticals, Inc. (Janssen).
Case MDL No. 2404 Document 64 Filed 12/06/12 Page 2 of 6 to each case. Defendants also contend that any multidistrict litigation is destined to become anindustry-wide litigation encompassing not only Nexium, but multiple different PPIs andmanufacturers. We respectfully disagree. Although defendants focus on product identification issues, we are not persuaded that these issues are so daunting that multidistrict treatment is unwarranted. Centralized products liability casesgenerally will involve some individual questions of fact. See In re Darvocet, Darvon &Propoxyphene Prods. Liab. Litig., 780 F. Supp. 2d 1379, 1381 (J.P.M.L. 2011). Section 1407 doesnot require a complete identity or even a majority of common factual issues as a prerequisite tocentralization. Id. (citing cases). The transferee court can employ any number of pretrialtechniques—such as establishing separate discovery and/or motion tracks—to manage this litigationefficiently. Furthermore, experience has shown that pharmaceutical products liability actions do not inevitably expand to encompass all similar medications. Indeed, every plaintiff in each action on themotion alleges that he or she ingested Nexium and that this caused plaintiff’s injuries. Actions thatdo not involve Nexium or do not contain allegations of bone-related injuries will not be centralized(barring an indication from the transferee court that the parameters of this litigation should bealtered). Should the circumstances regarding any action develop such that either the transferee judgeor the parties determine that continued inclusion of a claim or action no longer remains advisable,procedures are available whereby remand of that claim or action may be accomplished with aminimum of delay. See Panel Rule 10.1(b). On the basis of the papers filed and the hearing session held, we find that these actions involve common questions of fact, and that centralization under Section 1407 in the Central District ofCalifornia will serve the convenience of the parties and witnesses and promote the just and efficientconduct of this litigation. All the actions before the Panel assert claims against AstraZeneca arisingfrom ingestion of the drug Nexium. Specifically, the actions share allegations relating to the safetyof Nexium and the adequacy of AstraZeneca’s warnings concerning the possible adverse side effectsof using Nexium—in particular, the potential that Nexium may cause bone-related injuries such asosteoporosis, bone deterioration or loss, and broken bones. Centralization will eliminate duplicativediscovery; prevent inconsistent pretrial rulings; and conserve the resources of the parties, theircounsel and the judiciary.
We decline Takeda’s alternative request to separate and remand the Northern District of California Beatty action from this litigation. That request is based on the allegation of one plaintiffin that action that she ingested both Takeda’s Prevacid and AstraZeneca’s Nexium. Excluding theclaims against Takeda will result only in duplicative discovery and pretrial practice. The transfereejudge can structure the pretrial proceedings so that discovery with respect to any issues unique toTakeda can proceed concurrently with discovery on common issues. See In re Coloplast Corp.
Pelvic Support Sys. Prods. Liab. Litig., MDL No. 2387, __ F. Supp. 2d __, 2012 WL 3244296, at*1 (J.P.M.L. Aug. 6, 2012). Case MDL No. 2404 Document 64 Filed 12/06/12 Page 3 of 6 Normally, we would consider Janssen’s request to exclude the potentially-related Goodman action in the District of Nevada from the MDL to be premature. See In re DePuy Orthopaedics, Inc.,Pinnacle Hip Implant Prods. Liab. Litig., 787 F. Supp. 2d 1358, 1360 (J.P.M.L. 2011). However,based on the injury described in the complaint (hypomagnesemia) and the parties’ arguments, it isapparent that Goodman does not fall within the scope of this MDL. Accordingly, we will notconditionally transfer that action to the MDL. If any involved party believes that Goodman shouldbe centralized, it may file a separate motion to that effect. See Panel Rule 7.1(b)(i). We conclude that the Central District of California is an appropriate transferee district for this litigation. The eight actions pending in that district involve the vast majority of plaintiffs in thislitigation—over a thousand plaintiffs. Further, twenty-eight of the non-California actions wereinitially transferred from the Central District of California pursuant to 28 U.S.C. § 1404.3 The CentralDistrict of California is also accessible and is proximate to at least four state court actions involvingapproximately another two hundred plaintiffs. Thus, centralization in this district will facilitatecoordination with pending state court litigation. Finally, by selecting Judge Dale S. Fischer to presideover this matter, we are selecting a jurist with multidistrict litigation experience and the ability tohandle this litigation.
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, the actions listed on Schedule A and pending outside the Central District of California are transferred to the CentralDistrict of California and, with the consent of that court, assigned to the Honorable Dale S. Fischerfor coordinated or consolidated pretrial proceedings with the actions pending there. _________________________________________ 3 As we have previously observed, the considerations affecting transfer under Section 1404 are not the same as those affecting transfer under Section 1407, and there is no inconsistency incentralizing actions that have been so transferred in the originating district. See In re Epogen &Aranesp Off-Label Mktg. & Sales Practices Litig., 545 F. Supp. 2d 1365, 1367 (J.P.M.L. 2008).
Case MDL No. 2404 Document 64 Filed 12/06/12 Page 4 of 6 IN RE: NEXIUM (ESOMEPRAZOLE)
PRODUCTS LIABILITY LITIGATION
SCHEDULE A
Linda Carrasco, et al. v. McKesson Corporation, et al., C.A. No. 2:12-05044Lupe Abina, et al. v. McKesson Corporation, et al., C.A. No. 2:12-05046Antoinette Johnson, et al. v. McKesson Corporation, et al., C.A. No. 2:12-05048Unniebe Solomon, et al. v. McKesson Corporation, et al., C.A. No. 2:12-05049Pamela Mason, et al. v. McKesson Corporation, et al., C.A. No. 2:12-05050Christine Nickerson, et al. v. McKesson Corporation, et al., C.A. No. 2:12-05052Sherwin Arae, et al. v. McKesson Corporation, et al., C.A. No. 2:12-05053Phyllis Cudney, et al. v. McKesson Corporation, et al., C.A. No. 2:12-05077 Judy Beatty, et al. v. AstraZeneca Pharmaceuticals, L.P., et al., C.A. No. 4:12-03507 Lois Hornsby, et al. v. AstraZeneca Pharmaceuticals LP, et al., C.A. No. 3:12-01307 Georgia Lou Payne v. McKesson Corporation, et al., C.A. No. 3:12-00341Rodney Penland v. McKesson Corporation, et al., C.A. No. 3:12-00342Cynthia Phillips v. McKesson Corporation, et al., C.A. No. 3:12-00343Kelly Wayne Powers v. McKesson Corporation, et al., C.A. No. 3:12-00344Peggy Smith v. McKesson Corporation, et al., C.A. No. 3:12-00345Debra Ann Sweet v. McKesson Corporation, et al., C.A. No. 3:12-00346Daniel Robin Thomas v. McKesson Corporation, et al., C.A. No. 3:12-00347Kelly Toler-Allen v. McKesson Corporation, et al., C.A. No. 3:12-00348Mary Ann Wheeler v. McKesson Corporation, et al., C.A. No. 3:12-00349 James R. Biggers, et al. v. AstraZeneca, LP, et al., C.A. No. 1:11-00062 Beatrice Velasco, et al. v. McKesson Corporation, et al., C.A. No. 2:12-02613 Case MDL No. 2404 Document 64 Filed 12/06/12 Page 5 of 6 MDL No. 2404 Schedule A (Continued)
Beatrice Velasco, et al. v. McKesson Corporation, et al., C.A. No. 6:12-00444 Beatrice Velasco, et al. v. McKesson Corporation, et al., C.A. No. 3:12-02241 Beatrice Velasco, et al. v. McKesson Corporation, et al., C.A. No. 4:12-02099 Irene Avelar, et al. v. McKesson Corporation, et al., C.A. No. 5:12-00673 Wendy Collins, et al. v. McKesson Corporation, et al., C.A. No. 2:12-00687 Kraig Jackson, et al. v. McKesson Corporation, et al., C.A. No. 2:12-00401 Shirley Bradley, et al. v. McKesson Corporation, et al., C.A. No. 7:12-00304 Beatrice Velasco, et al. v. McKesson Corporation, et al., C.A. No. 2:12-01208 Jody Schnaak v. McKesson Corporation, et al., C.A. No. 1:12-00111Betty Conner v. McKesson Corporation, et al., C.A. No. 2:12-00049Patricia DeLorenzo v. McKesson Corporation, et al., C.A. No. 5:12-00106Paul Whitlatch v. McKesson Corporation, et al., C.A. No. 5:12-00107 Case MDL No. 2404 Document 64 Filed 12/06/12 Page 6 of 6 MDL No. 2404 Schedule A (Continued)
Dawn Johnson, et al. v. McKesson Corporation, et al., C.A. No. 2:12-03054 Emma Kuhn v. McKesson Corporation, et al., C.A. No. 2:12-00717John McMahon v. McKesson Corporation, et al., C.A. No. 2:12-00718Latrisha Morrow v. McKesson Corporation, et al., C.A. No. 2:12-00719 Barbara Moore v. McKesson Corporation, et al., C.A. No. 3:12-00496 Juanita Kaye Westlake v. McKesson Corporation, et al., C.A. No. 2:12-00152

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