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In re Actos Pioglitazone Products Liability Litigation

United States District Court, W.D. Louisiana

November 28, 2017

IN RE ACTOS PIOGLITAZONE PRODUCTS LIABILITY LITIGATION This document applies to The Cherokee Nation Civil Action No. 6:15-cv-1485

          MEMORANDUM RULING: DEFENDANTS' AMENDED MOTION TO TRANSFER VENUE OR IN THE ALTERNATIVE. TO DISMISS

          REBECCA F. DOHERTY, UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Pending before this Court is an Amended Motion to Transfer Venue, or in the Alternative, to Dismiss (hereinafter referred to as the "Motion") filed by defendants Takeda Pharmaceuticals USA, Inc. (f/k/a Takeda Pharmaceutical North America, Inc.), Takeda Development Center Americas, Inc. (f/k/a Takeda Global Research & Development Center, Inc.), Takeda Pharmaceuticals America, Inc., Takeda California, Inc. (f/k/a Takeda San Diego, Inc.), Takeda Pharmaceuticals International, Inc., and Takeda Pharmaceutical Company Limited (hereinafter collectively referred to as "Takeda") (Rec. Doc. 27), which was joined by Defendant Eli Lilly and Company (Rec. Doc. 28). Takeda's motion was opposed by The Cherokee Nation (Rec. Doc. 29). Considering: (1) the briefing filed by Takeda, Eli Lilly and Company and The Cherokee Nation; and (2) the arguments by the parties at hearings held by the Court on the record on September 25, 2017; and for the reasons that follow: the Court GRANTS Takeda's Motion to Transfer Venue, as Amended, and these claims are TRANSFERRED to the Northern District of Oklahoma. The Court declines to rule on the underlying substantive motions filed in the alternative by Takeda.

         II. PROCEDURAL HISTORY

         This multidistrict litigation arises from product liability claims against the manufacturer and marketer of Actos® and other drugs containing pioglitazone. These MDL proceedings were instituted by the Judicial Panel on Multidistrict Litigation by order dated December 29, 2011. (MDL Rec. Doc. 1).

         To facilitate the filing of cases, in the instant case, the parties negotiated and agreed to enter into a "First Amended Case Management Order, " (MDL Rec. Doc. 2597) which was later amended on July 27, 2012 (the "Second Amended Case Management Order") (MDL Rec. Doc. 1538), which permits the parties to directly file their claims in the Western District of Louisiana, regardless of venue (hereinafter referred to as the "Direct File Order"). The Order states as follows:

CASE MANAGEMENT ORDER
I. Scope of Order
This Agreed Order applies to claims brought by any U.S. citizen or resident based on alleged ingestation of Actos®, ACTOplus Met®, ACTOplus Met XR®, Duetact®, or pioglitazone ("Actos") that (i) currently are pending in MDL No. 2299, (ii) currently are pending in the Western District of Louisiana and are related to MDL No. 2299, or (iii) will be filed in, removed to, or transferred to this Court (collectively, "the MDL Proceedings").
II. Direct Filing of Cases in MDL 2299
A. In order to eliminate delays associated with transfer to this Court of cases filed in or removed to other federal district courts, and to promote judicial efficiency, any plaintiff whose case would be subject to transfer to MDL 2299 may file his or her case directly in the MDL Proceedings in the Western District of Louisiana (such cases are sometimes referenced as "Direct-Filed Cases").
B. Each case filed directly in the MDL Proceedings by a plaintiff who resides in a federal district other than the Western District of Louisiana will be filed in the MDL Proceedings for purposes of pretrial proceedings, consistent with the Judicial Panel on Multidistrict Litigations' December 29, 2011 Transfer Order ("Transfer Order").
C. Defendants will not challenge the venue of any Direct-Filed Case.
Upon the completion of pretrial proceedings consistent with this Transfer Order, this Court, pursuant to 28 U.S.C. 1404(a), will transfer Direct-Filed Cases to the federal district court in the district where the plaintiff allegedly was injured by use of Actos, or where the plaintiff resides at the time of such transfer, subject to severance of multi-plaintiff actions if necessary. The parties will jointly advise the Court of the district to which each Direct-Filed Case should be transferred.
D. Parts II.B and II.C do not preclude the parties from agreeing, at a future date, to try certain Direct-Filed Cases in this District.
E. The inclusion of any action in In Re: Actos Products Liability Litigation, MDL 2299, whether such action was or will be filed originally or directly in the Western District of Louisiana, shall not constitute a determination by this Court that jurisdiction or venue is proper in this district.

Direct File Order (emphasis added) (MDL Rec. Doc. 1538).

         Thus, the Cherokee Nation case is pending in this Court by virtue of the Direct File Order that was negotiated by the parties and instituted by the Court. However, the Direct File Order contains certain underlying assumptions and conditions, and without those assumptions being met, it specifically does not confer proper venue in the case. The Direct File Order specifically contemplates the parties will jointly advise the Court as to where the returning cases should be transferred once all pretrial matters are complete, and continues to specifically state that inclusion within the MDL does not equal a determination that venue is proper in the Western District of Louisiana. It also notes 1404(a) concerns should govern and outlines certain of those provisions. Consequently, the Order contemplates transfer should occur once pretrial matters are complete, § 1404(a) concerns should govern, and the parties are to jointly advise the Court to where the matter should be transferred.

         The pretrial process has run its course with over 11, 000 state and federal cases having been resolved, a bellwether trial having been had, and underlying matters having been resolved. In June 2017, the parties conferred to discuss transfer of the case pursuant to the Direct File Order. On June 12, 2017, by email to the Special Master, counsel for the plaintiff stated that, "for the purpose of advising the Judge, [the lawyers for the parties] have agreed that the Northern District of Oklahoma is an appropriate forum." (Rec. Doc. 13-2). Plaintiff acknowledges the existence of this email, but focuses its argument on the fact that it has not agreed to the transfer of this matter to the Northern District of Oklahoma. This Court agrees, but the fact that this email does not constitute an agreement to transfer does not negate the email in its entirety. The Court finds that the email constitutes an acknowledgment by the plaintiff that the Northern District of Oklahoma is a proper venue for this case.

         On August 17, 2017, Takeda filed a Motion to Transfer Case to the Northern District of Oklahoma (Rec. Doc. 13), which was joined by Eli Lilly (Rec. Doc. 12). On August 24, 2017, Plaintiff filed its Response to Takeda's Motion to Transfer (Rec. Doc. 15). On September 15, 2017, with leave of court, Takeda filed a Reply in Support of it Motion to Transfer (Rec. Doc. 20), which was joined by Eli Lilly via oral motion on September 25, 2017 (Rec. Doc. 21). On September 25, 2017, oral argument was held on the motion. This Court ruled from the bench as follows:

So the final ruling by this Court is that Takeda's and Eli Lilly's motion to transfer venue [Doc. 13] is granted in part and denied in part as follows:
The motion to transfer the Cherokee Nation's claims based on the use of Actos set of claims, i.e., the negligence and implied warranty, is granted, and these claims are transferred to the Northern District of Oklahoma for the full reasons given by this Court.
However, as to the motion to transfer the Cherokee Nation's claims that arise by way of how the, quote, settlement of the Actos litigation was handled and whether the Nation's quote, unquote, lien was protected in that settlement, those are deferred pending a full discussion and briefing of those claims which will now be set by this Court.

         Transcript of Oral Argument on Motion to Transfer Venue at 53:5-18, September 25, 2017, In Re: Actos (Pioglitazone) Products Liability Litigation.

         The Court clarified that with respect to its first ruling, the defendants would have to make a motion to sever the plaintiffs claims based on the individual use of Actos from the plaintiffs settlement based claims before the individual use claims could be transferred to the Northern District of Oklahoma. However, counsel for Takeda indicated it needed to discuss the Court's preliminary ruling with their client on this issue so the Court granted the parties additional time to discuss it with their clients and provide the Court with their clients' positions pursuant to the briefing schedule. Transcript of Oral Argument on Motion to Transfer Venue at 88:8-19, September 25, 2017, In Re: Actos (Pioglitazone) Products Liability Litigation.[1]

         In conjunction with granting counsel for Takeda time to confer with their client regarding the issue of severance, on September 26, 2017, this Court issued a Minute Entry to clarify its ...


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