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Bret Mccurdy v. Novartis Pharmaceuticals Corporation

May 1, 2012


The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge




On March 19, 2012, Defendant Novartis Pharmaceuticals Corporation ("Defendant") filed a motion to stay this action for the remainder of 2012, arguing that dozens of similar cases are advancing to trial and that developments in those cases will assist in the efficient resolution of this action. (Docs. 38-41.) On April 18, 2012, Plaintiff Bret McCurdy ("Plaintiff") filed an opposition. (Docs. 42-43.) Defendant filed a reply on April 25, 2012. (Docs. 44-45.)

The Court has reviewed the parties' briefs and supporting documents and determined that this matter is suitable for decision without oral argument pursuant to Local Rule 230(g); as such, the hearing scheduled for May 2, 2012, is VACATED. For the reasons set forth below, Defendant's motion to stay is DENIED.


On April 13, 2011, Plaintiff filed a complaint in the United States District Court, Central District of California. (Doc. 1.) Plaintiff alleges that he was prescribed and infused with the drugs Aredia and Zometa, two products made and marketed by Defendant and used for the management of metastatic disease to the bone. (Doc. 1, ¶¶ 2, 6.) As a result of using Aredia and Zometa, Plaintiff asserts that he developed severe osteonecrosis of his jaw. (Doc. 1, ¶ 2.) Plaintiff pleads claims for strict liability, negligent manufacture, failure to warn, breach of express warranty, and breach of implied warranty. (Doc. 1, ¶¶ 20-49.)

On May 10, 2011, the case was transferred from the Central District to the Eastern District of California. (Doc. 11.) A scheduling conference was set for February 16, 2012, before Magistrate Judge Sheila K. Oberto; on February 9, 2012, the parties filed a joint scheduling report indicating that Defendant intended to seek a stay of all litigation in this matter and that Plaintiff would oppose any stay. (Docs. 26, 36.) The scheduling conference was vacated to allow Defendant time to file a motion to stay; the instant motion was filed on March 19, 2012. (Docs. 37, 38.)

Defendant's motion seeks to stay the proceedings in this action for the remainder of 2012, contending that "dozens of similar, earlier-filed cases involving Aredia and/or Zometa are advancing rapidly to trial and developments in those cases will assist the efficient resolution of this lawsuit." (Doc. 39, 4-5.) Defendant notes that in April 2006, the Judicial Panel on Multidistrict Litigation ("JPML") ordered the consolidation of similar Aredia and Zometa actions in multidistrict litigation ("MDL") in In re: Aredia and Zometa Products Liability Litigation, No. 3:06-MD-1760 (M.D. Tenn.) ("MDL 1760") (Doc. 39, 13-16.) Previously, the JPML had ordered the centralization of similar cases into MDL 1760, and over 650 cases have been included in that litigation. (Doc. 39, 3:17; Doc. 42, 32:26-3:2.) On April 15, 2011, the JMPL suspended its order and denied the transfer of newly-filed cases into the MDL. (Doc. 42, 2:2-4.)

The Court notes that on August 9, 2011, a motion was filed requesting that JPML transfer this action (and 32 other actions) to MDL 1760; the motion for transfer was denied. (See Doc. 40, Edwards Decl., Exhs. L, M.)

Defendant contends that a stay is appropriate in this action because the trials, discovery, and rulings that will be forthcoming in 2012 in the other, more advanced, Aredia/Zometa cases will inform and assist in the ultimate resolution of this case. (Doc. 39, 6:26-7:1.) Defendant asserts that several other federal district courts have stayed similar actions for the same reason. (Doc. 39, 7:1-8:7.) Defendant contends that the principles of equity support granting a stay to allow other plaintiffs with Aredia /Zometa cases, who have spent years participating in and completing the MDL process, to have their actions resolved first. (Doc. 39, 8:8-16.) Defendant lastly asserts that a stay would not be prejudicial in this case because Plaintiff previously requested that this lawsuit be transferred and thus placed in the back of the line of earlier-filed cases in MDL 1760; as such, staying this case for a finite period will not put Plaintiff in any worse position than if his case had been transferred to MDL 1760. (Doc. 39, 8:17-9:1.)

Plaintiff filed an opposition on April 18, 2012. (Doc. 42.) Plaintiff opposes a stay because Plaintiff will be unduly prejudiced and judicial resources will not be conserved. (Doc. 42, 3:15-9:20.) Plaintiff asserts that this case can move forward in an efficient manner and that the JPML, by denying the motion to transfer cases, intended for non-MDL cases to move forward in their respective courts. (Doc. 42, 4:13-17.) Further, Plaintiff states that Defendant fails to identify specifically how the progress of earlier filed cases will help advance this case if it is stayed. (Doc. 42, 5:11-14.) Plaintiff contends that, while Defendant noted that some courts have granted similar motions to stay, those cases are distinguishable and that "[i]n the last month alone, at least six more courts have denied Novartis' motions to stay and have acknowledged various deadlines in those cases." (Doc. 42, 7:5-21.) Plaintiff asserts that Defendant has not identified any real prejudice that it will suffer if a stay is not granted, while delay would prejudice Plaintiff. (Doc. 42, 8:11-9:20.)

In the reply filed on April 25, 2012, Defendant asserts that Plaintiff's opposition does not rebut Defendant's core argument that a stay in this action would advance judicial and litigant economy by allowing dozens of other, more advanced cases to work their way through the federal court system. (Doc. 44, 2:11-13.)


A. Legal ...

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