On Wednesday, U.S. District Judge Dennis Saylor denied a defense motion to stay more than 10 suits he is overseeing against the
New England Compounding Center, which supplied the steroids
linked to an outbreak of fungal meningitis in September and
October. At least 25 people died after exposure to the tainted
drugs. More than 340 people in 19 states developed meningitis.
Dozens of victims have filed personal injury and wrongful death
suits against NECC in courts all over the country.
As you would expect, the Judicial Panel on Multidistrict
Litigation is considering a motion to consolidate the federal
court cases for pretrial discovery. The original JPMDL motion
was brought by Alyson Oliver of The Oliver Law Group, who asked
the panel to transfer all of the meningitis cases to federal
court in Minnesota, where the first complaint was filed and
where U.S. District Judge Donovan Frank is now overseeing four
meningitis suits. Within weeks of Oliver's Oct. 16 motion, two
camps had set up in the JPMDL docket: those who supported
Minnesota as a venue for the meningitis litigation and those who
preferred Massachusetts, where NECC is based. The latter group
included the plaintiffs' firm Hagens Berman Sobol Shapiro, which
filed a memo arguing for transfer to Boston on Nov. 6; and NECC
itself, whose lawyers at Harris Beach filed a motion on Nov. 7
agreeing that the cases should be consolidated in Boston before
Judge Saylor.
NECC, which said it is anticipating hundreds of personal
injury suits, said in the Nov. 7 filing that Saylor has the
requisite experience to handle such a heavy case load but
nevertheless, two days later, asked the Boston judge, in the
interests of judicial economy, to stay the meningitis cases
already before him until the JPMDL makes up its mind. On
Tuesday, a coalition of plaintiffs' firms filed a brief opposing the stay motion. The panel won't make a decision about the
meningitis cases for months, wrote the plaintiffs' firms,
including Lieff Cabraser Heimann & Bernstein. It's not fair to
delay preliminary case management and discovery until then, they
argued, especially because the NECC facility at the heart of the
case is under regulatory siege and most employees no longer work
there.
Saylor hasn't docketed an order explaining his decision to
keep the cases before him moving, and neither he nor lawyers at
Hagens Berman or Lieff Cabraser returned my calls. NECC's
Boston counsel at Hinshaw Culbertson referred me to a
representative who didn't get back to me. But the judge
certainly seems willing to preside over the meningitis
litigation. There's already been more action in the 10 cases
before him than in the four suits before the Minnesota judge
(although NECC's Minnesota lawyers at Bowman and Brooke have
filed a boilerplate answer to the first complaint).
By the time the JPMDL hears arguments on an appropriate
jurisdiction for the meningitis cases in January, Saylor will be
well into the litigation. That should make the panel's decision
easier.
Oliver, the first proponent of transfer to Minnesota, said
in an email that there are 19 meningitis cases in Michigan and
11 in Indiana, as well as five in Minnesota. NECC, she said, did
not supply the allegedly tainted product in Massachusetts.
According to Oliver, "the Midwest and specifically Minnesota
provides a far more convenient forum for the mass of the
litigants." Discovery in the Minnesota case, in which NECC has
filed an answer, is expected to begin soon, she said, and should
be well under way by the time of the JPMDL hearing. Oliver also
said that the motion to transfer the meningitis cases to
Minnesota has broad support from plaintiffs' lawyers who've
filed suits, including those who've filed in Michigan. "It is
likely that the JPMDL will consider these factors in January
when they determine which venue is the best venue for this
litigation," she said.
(This post has been updated to include comment from Oliver.)
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