Benge v. Eli Lilly and Co., 4:08-CV-17-JVB-PRC.

• Decision Date: 16 April 2008
• Docket Number: No. 4:08-CV-17-JVB-PRC.,4:08-CV-17-JVB-PRC.
• Citation: 553 F.Supp.2d 1049
• Parties: Leroy BENGE, Jr., et al., Plaintiffs, v. ELI LILLY AND COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Indiana

553 F.Supp.2d 1049

Leroy BENGE, Jr., et al., Plaintiffs, v. ELI LILLY AND COMPANY, Defendant.

No. 4:08-CV-17-JVB-PRC.

United States District Court, N.D. Indiana.

April 16, 2008.

Buffy K. Martines, Thomas W. Pirtle, Laminack Pirtle & Martines, Houston, TX, Richard N. Laminack, Laminack Pirtle & Martines, Houston, TX, Robert T. Dassow, Hovde Dassow & Deets LLC, Indianapolis, IN, for Plaintiffs.

Amy K. Fisher, Mary Nold Larimore, Nancy M. Riddle, Ice Miller LLP, Indianapolis, IN, for Defendant.

OPINION AND ORDER

PAUL R. CHERRY, District Judge.

This matter is before the Court on Defendant Eli Lilly and Company's Motion to Stay All Proceedings Pending Transfer by the Judicial Panel on Multidistrict Litigation [DE 8], filed on March 21, 2008. The Plaintiffs failed to file a response, and the time to do so has passed. The Plaintiffs filed their Complaint in this matter on March 17, 2008, in Tippecanoe Superior Court, State of Indiana. The Complaint asserts causes of action for strict product liability, negligence, and breach of express and implied warranties for Defendant's manufacture, sale, and distribution of the pharmaceutical drug Zyprexa. On March 18, 2008, the Defendant filed a Notice of Removal in the United States District Court for the Northern District of Indiana, thereby removing the case to this Court. On March 21, 2008, the Defendant filed its Answer to the Complaint for Damages, as well as the instant Motion.

The Defendant requests that the Court stay all proceedings in this action pending transfer, pursuant to 28 U.S.C. § 1407, to In re Zyprexa Products Liability Litigation, MDL Docket No. 1596 (E.D.N.Y) (Weinstein, J.). The Defendant represents that in 2004, the Multidistrict Litigation ("MDL") Panel transferred six civil actions to the Eastern District of New York, and since then has transferred approximately 1,675 Zyprexa related cases to the MDL as tag-along actions involving the same questions of fact. The Defendant represents that this case turns on the same common questions of fact, including (1) whether Zyprexa caused or substantially contributed to the development of the Plaintiffs' diabetes, and (2) whether the Defendant knew that Zyprexa caused or substantially contributed to the development of diabetes or related diseases or conditions and failed to warn the medical community and the Food and Drug Administration. The Defendant further represents that it filed a Notice of Potential Tag-Along Action on March 18, 2008, with the MDL Panel, seeking transfer of this case to the MDL.

The power of a court to stay proceedings is "incidental to the power inherent in every court to control the disposition of the causes on its docket with the economy of time and effort for itself, for counsel, and for litigants." Landis v. North Am. Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936). The decision to issue a stay of proceedings when a party submits a motion for transfer to an MDL panel rests within the court's discretion. See Azar v. Merck & Co., Inc., No. 3:06-CV-0579, 2006 WL 3086943, at *1 (N.D.Ind. Oct. 27, 2006) (Nuechterlein, J.). In such a context, courts consider the following three factors: (1) potential prejudice to the...