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In re Consolidated Parlodel Litigation

February 6, 1998

IN RE CONSOLIDATED PARLODEL LITIGATION


The opinion of the court was delivered by: Stephen M. Orlofsky United States District Judge

HON. STEPHEN M. ORLOFSKY

OPINION

ORLOFSKY, District Judge:

Sixteen female Plaintiffs, some joined by their husbands, have filed fourteen separate actions alleging that they were injured as a result of taking the prescription drug Parlodel. Plaintiffs hale from a variety of states across the country *fn1 and allege a variety of injuries, including strokes, heart attacks and seizures, occurring from 1988 to 1994. Defendant, Novartis Pharmaceuticals Corporation ("NPC"), formerly known as Sandoz Pharmaceuticals Corporation, designed, manufactured, marketed and distributed Parlodel.

Following transfer of several of these cases from the United States District Court for the Eastern District of New York, the Honorable Joel B. Rosen, United States Magistrate Judge, consolidated these cases solely for the limited purpose of discovery. Plaintiffs have moved for consolidation of these cases for trial and a determination that each case is governed by New Jersey law. For the reasons set forth below, Plaintiffs' motion for consolidation will be denied. Plaintiffs' motion for choice of law will be denied without prejudice to the refiling of such a motion by each Plaintiff on a case-by-case basis.

I. BACKGROUND

Plaintiffs allege generally that NPC designed, manufactured, obtained regulatory approval for, marketed and distributed the drug Bromocriptine under the brand name Parlodel. One of the indications for the use of Parlodel was the prevention of post-partum lactation ("PPL") in women following childbirth. Essentially, women who did not want to breast feed could take Parlodel to suppress lactation.

Plaintiffs each allege that they took Parlodel to prevent PPL and suffered injuries as a result. Plaintiffs have categorized their injuries as follows: 9 women suffered strokes, 2 women suffered seizures, 3 women suffered strokes and seizures, and 2 women suffered heart attacks. See Plaintiffs' Mem. at 5-6. Plaintiffs assert various theories of recovery centered on strict products liability, negligence, breach of implied warranty, breach of express warranty and fraud. Both the causes of action and the factual premises for the claims, however, vary somewhat among the actions. Compare, e.g., Johnson v. Sandoz Pharmaceuticals Corp., Civ. Action. No. 95-1935 (alleging civil conspiracy), with Parnell v. Sandoz Pharmaceuticals Corp., Civ. Action. No. 96-4491 (alleging violations of the Food and Drug Act, 21 U.S.C. § 352), with Nelson v. Sandoz Pharmaceutical Corp., Civ. Action No. 995- 6527 (alleging both civil conspiracy and violations of the Food and Drug Act, 21 U.S.C. § 352). Several of the complaints also include claims by husbands of injured women for loss of consortium.

Five actions were originally filed in the United States District Court for the District of New Jersey. See Civ. Action Nos. 95-1936, 95- 1935, 95-6527, 95-4890, 95-2321. Nine actions were originally filed in the United States District Court for the Eastern District of New York. See Civ. Action Nos. 95-395, 95-516, 95-1629, 95-2150, 95-4319, 96-1450, 96-2269, 96-2632, 96-4052. *fn2 The New York Actions were transferred to the District of New Jersey pursuant to 28 U.S.C. § 1404(a). See Certification of Ellen Relkin, Ex. B (containing transfer orders in each case). By order dated April 22, 1996, Magistrate Judge Rosen consolidated these actions for the limited purpose of discovery.

II. CONSOLIDATION

Plaintiffs now move to consolidate all fourteen of their cases for trial. The Federal Rules of Civil Procedure provide in relevant part:

When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. Fed. R. Civ. P. 42(a).

The moving parties, in this case Plaintiffs, bear the burden of proof on a motion for consolidation. In re Repetitive Stress Injury Litigation ("In re RSI Litig."), 11 F.3d 368, 373 (2d Cir. 1993); Schneck v. International Business Machines Corp., 1996 U.S. Dist. LEXIS 10126, *3 (D.N.J. Jun. 24, 1996).

A common question of law or fact shared by all of the cases is a prerequisite for consolidation. See Fed. R. Civ. P. 42(b); Liberty Lincoln Mercury, Inc. v. Ford Marketing Corp., 149 F.R.D. 65, 80 (D.N.J. 1993); Schneck, 1996 U.S. Dist. LEXIS 10126 at *3. "The mere existence of common issues, however, does not require consolidation." Liberty Lincoln Mercury, 149 F.R.D. at 81; Schneck, 1996 U.S. Dist. LEXIS 10126 at *3; see Easton & Co. v. Mutual Benefit Life Insurance Co., 1992 WL 448794, *4 (D.N.J. Nov. 4, 1992) (whether cases present a common question of law or fact is only a "threshold" requirement). Once a common question has been established, the decision to consolidate rests in the ...


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