IN RE: The Upjohn Co. Antibiotic "Cleocin" Products Liability Litigation

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: JUDICIAL PANEL GH SE
- HULTIZISTRICT LITIGATION Ce
FILED
BEFORE THE JUDICIAL PANEL CL
oN HAY 23 1978 So
MULTIDISTRICT LITIGATION Co Log
PATRICIA D. {13¥ARD :
CLERK OF THE PAHEL oo
IN RE THE UPJOHN CO. ANTIBIOTIC ) DOCKET NO. 343 Hs :	""CLEOCIN'" PRODUCTS LIABILITY LITIGATION ) / 77
OPINION AND ORDER
BEFORE JOHN MINOR WISDOM, CHAIRMAN, AND EDWARD WEINFELD, RE
EDWIN A. ROBSON, JOSEPH S. LORD, III, STANLEY A. WEIGEL, Ss
ANDREW A. CAFFREY, AND RCY W. HARPER, JUDGES OF THE PANEL. :
PER CURIAM |
This litigation consists of fifteen actions pending
in twelve districts as follows:
Eastern District of Louisiana 3 actions ooEastern District of Wisconsin 2 actions ; :
Western District of Louisiana 1 action :
District of Massachusetts 1 action
Eastern District of Michigan 1 action
Eastern District of Missouri 1 action oo
Northern District of New York 1 action Co
District of North Dakota 1 action co
District of South Carolina 1 action i
Eastern District of Texas 1 action Lo
Western District of Washington 1 action
Western District of Wisconsin 1 action or
The Upjohn Company (Upjohn) is the principal defendant .
in all fifteen actions. Plaintiffs in each action have been Co SE
users of the antibiotic, Clindamycin, that is marketed by } FREE
Upjohn under the trademark ''Cleocin.” Generally, plaintiffs Co
in these actions allege that they suffered severe side
effects in the form of colitis, diarrhea or other gastroin- oo
testinal injuries as a result of taking Cleocin. Liability SE N
against Upjohn in each of the actions is based on negligence Co
in, inter alia, failing to warn of the dangers inherent in

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taking Cleocin, strict liability, and/or breach of warranties. cL
Plaintiffs' physicians, insurance companies, a hospital Co
and/or a pharmacy are addi“ional defendants in five actions. oo
This litigation is before the Panel on the motion
~ of plaintiffs in the New York action for transfer, pursuant
to 28 U.S.C. §1407, of all actions pending in districts
other than the Eastern District of Louisiana to that : -
district for coordinated or consolidated pretrial proceedings oo
with the three actions pending there. Plaintiffs in nine
actions have joined in the motion to transfer. Upjohn
opposes transfer. Additional codefendants with Upjohn
"in two actions and plaintiffs in two actions oppose transfer Te
of their respective actions. Upjohn also states that
it would favor a Michigan transferee forum if the Panel
determines that centralized pretrial proceedings are : : Co
appropriate in this litigation. | : Sh
We find that these actions involve common questions of fact oo
and that, with the exception of the Missouri action, the Western -
District of Wisconsin action and one of the Eastern District of :
Wisconsin actions, their transfer under Section 1407 to the Ce
Eastern District of Michigan will best serve the convenience Loe
of the parties and witnesses and promote the just and efficient oo
v
conduct of the litigation. ~
Upjohn denies that common questions of fact will -
predominate in this litigation. It urges that discovery So
1/ Upjohn is ordered to keep the Clerk of the Panel informed
of any tag-along actions in this litigation. See Rule
1, R.P.J.P.M.L., 65 F.R.D. 253, 255 (1975).

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C on the issue of damages will be unique to each action
and that even with respect to the issue of liability,
discovery unique to each action will be required regarding
the prescribing physician's testimony; whether the drug
taken was manufactured, distributed, or sold by Upjohn;
the representations made by Upjohn to the prescribing
physician; the physical condition of the plaintiff at
the time the drug was administered; the testimony of
the plaintiff's expert witnesses; and the testimony of
the Upjohn employee who may have dealt with the prescribing
physician.
Upjohn also argues that transfer under Section 1407
® is unnecessary because most actions in this litigationare proceeding expeditiously towards trial, with discovery
completed and trial dates set in several actions. Similarly,
additional parties in two actions oppose inclusion of
their respective actions in centralized pretrial proceedings
because of the advanced stage of their particular action.
Finally, in one action, codefendants argue against transfer
of the claims brought against them on the grounds that
those claims, based on theories of medical malpractice,
will be unique to their action and will share no factual
questions with the claims against Upjohn.
We are persuaded that centralized pretrial proceedings
under Section 1407 are appropriate in this litigation.
C Although we recognize that some individual factual issueswill be present in each action, an analysis of the complaints

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reveals a commonality of factual questions concerning C
the testing, manufacturing, and marketing of Cleocin;
the causal relationship between ingestion of Cleocin
and contraction of severe side effects; and Upjohn's
foreknowledge of these side effects. Thus centralization
pursuant to Section 1407 is necessary in order to prevent
duplication of discovery and eliminate the possibility
of conflicting pretrial rulings. Any discovery unique
to a particular party, action, or claim can be scheduled
by the transferee judge to proceed concurrently with
the common discovery, thus enhancing the efficient processing
of the litigation. See In re A.H. Robins Ca., Inc.!"Dalkecn
Shield" IUD Products Liability Litigation, 406 F.Supp. C540, 542 (J.P.M.L. 1975).
On the basis of the record before us, it appears
that discovery has been completed and trial scheduled
in the Missouri action, the Western District of Wisconsin action
and one of the Eastern District of Wisconsin actions. According-
ly, transfer of these three actions would not now be appropriate
and they will therefore be excluded from our transfer order.
See In re Celotex Corporation "Technifoam" Products Liability
Litigation, 68 F.R.D. 502, 505 (J.P.M.L. 1975). Some
parties have argued that additional actions are also
sufficiently advanced to warrant their exclusion from
transfer. We recognize that all actions are not at the C
same stage of discovery but, based on the information

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® before us, we conclude that the remaining actions in
this litigation will all benefit from transfer under
Section 1407. We note that if and when an action or
claim is, in fact, ready for trial, or otherwise ready
for remand because the transferee judge finds that the
centralized pretrial proceedings pertaining to that action
or claim are completed, the transferee judge may suggest
that the Panel remand the action or claim to its transferor
district. See 28 U.S.C. §1407(a); Rule 11, R.P.J.P.M.L.,
65 F.R.D. 253, 260-63 (1975). And, of course, any discovery
heretofore completed may be made applicable to all actions
by utilizing the procedures recommended in the Manual
® for Complex Litigation, Parts I and II, §§3.11 (rev.ed.1977).
Movants favor the Eastern District of Louisiana as
the transferee forum because it is centrally located,
three actions are pending there, and the judge there
has developed an expertise in this litigation as a result
of presiding over the trial of a related action. We are
persuaded, however, that the Eastern District of Michigan
is the preferable forum for this litigation. Movants'
representative at the hearing before the Panel emphasized
that extensive discovery at Upjohn's headquarters in
Kalamazoo, Michigan, of Upjohn records and research files
is necessary for complete and full prosecution of this
C litigation. It is thus likely that many relevant documents

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®and witnesses will be found in Kalamazoo. Because we
are reluctant to transfer multidistrict litigation to
a district wherein none of the constituent actions is
pending, we are transferring this litigation to the closest
district to Kalamazoo wherein an action before us is
pending. See In re Practice of Naturopathy Litigation,
434 F.Supp. 1240, 1243 (J.P.M.L. 1977). Also, in the
context of the actions presently before us, the Eastern
District of Michigan is in a geographically central and
convenient location.
IT IS THEREFORE ORDERED that transfer pursuant to
28 U.S.C. §1407 of the actions entitled Paula Stanfield
v. The Upjohn Co., E. D. Missouri, C. A. No. 77-0557-C(2): @®
William and Barbara Weisz v. The Upjohn Co., et al., E. D.
Wisconsin, C. A. No. 75-C-258; and Charles M, Whipkevy v., The
Upjohn Co., W. D. Wisconsin, C. A. No. 75-C-553, be, and the
same hereby is, DENIED.
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. §1407,
the remaining actions listed on the following Schedule A and
pending in districts other than the Eastern District of Michigan
be, and the same hereby are, transferred to the Eastern District
of Michigan and, with the consent of that court, assigned to
the Honorable Cornelia G. Kennedy for coordinated or
consolidated pretrial proceedings with the action listed on
Schedule A and pending in that district. ®

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DOCKET NO. 343
EASTERN DISTRICT OF TEXAS
Qo... Dillingham v. The Upjohn Co. Civil ActionNo. S~75-112--CA
EASTERN DISTRICT OF LOUISIANA
Barry C. Escher v. The Upjohn Co., et al. Civil Action
No. 75-1745F	(4)
O. L. Mauldin v. The Upjohn Co., et al. Civil Action
No. 75-948F (2)
Alta Garrett McClanahan v. The Upjohn Co. Civil Action
: No. 75-1274F(5)
DISTRICT OF SOUTH CAROLINA
Kirk A. King v. The Upjohn Co. Civil Action
No. 76-758
WESTERN DISTRICT OF LOUISIANA
Louis Hyatt v. The Upjohn Co. Civil Action
No. 75-0398
C DISTRICT OF MASSACHUSETTSEileen C. Sanderson, et al. v. The Upjohn Co., Civil Action
et al. No. 75-4228-F
WESTERN DISTRICT OF WASHINGTON
Richard M. and Alberta L. Schatz v. The Upjohn Civil Action
Co. No. C75-518
EASTERN DISTRICT OF WISCONSIN
Steven R. Schwan v. The Upjohn Co. Civil Action
No. 77-C-363
William and Barbara Weisz v. The Upjohn Co., Civil Action
et al. No. 75-C-258
WESTERN DISTRICT OF WISCONSIN
Charles M. Whipkey v. The Upjohn Co. Civil Action
No. 75-C-553
EASTERN DISTRICT OF MISSOURI
Paula Stanfield v. The Upjohn Co. Civil Action
No. 77-0557C	(2)

Case MDL No. 343 Document 2 Filed 05/05/15 Page 8 of 8 - .
. DOCKET NO. 343
NORTHERN DISTRICT OF NEW YORK ®Walter J. and Agnes Wojcik, Jr. v. The Upjohn Civil Action
Co. No. 75-CvV-541
DISTRICT OF NORTH DAKOTA
Dale G. Niewoehner v. The Upjohn Co. Civil Action
No. A77-4019
EASTERN DISTRICT OF MICHIGAN
Juanita and Zasil Stavro v. The Upjohn Co. Civil Action
No. 77-1761