In Re: Bextra And Celebrex Marketing, E.D. Texas, C.A. No. 2:10-189

• Decision Date: 12 January 2011
• Docket Number: E.D. Texas, C.A. No. 2:10-189,MDL No. 1699
• Parties: IN RE: BEXTRA AND CELEBREX MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION Health Care Service Corp. v. Mark Brown, et al.,
• Court: U.S. District Court — Northern District of California

IN RE: BEXTRA AND CELEBREX MARKETING, SALES

PRACTICES AND PRODUCTS LIABILITY LITIGATION

Health Care Service Corp.

v.Mark Brown, et al.,

E.D. Texas, C.A. No. 2:10-189

MDL No. 1699

UNITED STATES JUDICIAL PANEL ON

MULTIDISTRICT LITIGATION

Filed: January 12, 2011

TRANSFER ORDER

Before the entire Panel: The third-party payor plaintiff in this Texas action (HCSC) moves pursuant to former Rule 7.4, R.P.J.P.M.L., 199 F.R.D. 425, 435-36 (2001), ¹ asking the Panel to vacate its order conditionally transferring the action to the Northern District of California for inclusion in MDL No. 1699. Responding defendants² oppose the motion.

After considering all argument of counsel, we find that HCSC involves common questions of fact with actions in this litigation previously transferred to the Northern District of California, and that transfer of this action to the Northern District of California for inclusion in MDL No. 1699 will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. We further find that transfer of this action is warranted for reasons that we set out in our original order directing centralization in this docket. In that order, we held that the Northern District of California was an appropriate Section 1407 forum for actions involving claims of liability for allegedly adverse effects arising from the ingestion of Bextra and/or Celebrex as well as claims relating to the sales and marketing of these prescription medications. See In re Bextra and Celebrex Mktg, Sales Practices and Prods. Liab. Litig, 391 F.Supp.2d 1377 (J.P.M.L. 2005).

The HCSC plaintiff opposes inclusion of its action in MDL proceedings, arguing that (1) discovery and other pretrial proceedings involving MDL No. 1699 third-party payor actions are complete, and (2) it has opted out of the MDL No. 1699 third-party payor class settlement. Since the creation of MDL No. 1699, much discovery has been completed and the transferee judge has addressed many complex and novel legal issues. The fact that simultaneous discovery with other third-party payor actions may not occur does not weigh against inclusion of HCSC in MDL proceedings. Inclusion of HCSC in this MDL will ensure that parties and witnesses are not subjected to discovery demands that duplicate

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activity that has already occurred. See In re Rosuvastatin Calcium Patent Litig., 560 F.Supp.2d 1381 (J.P.M.L. 2008); In re Department of Veterans Affairs (VA) Data Theft Litig., 461 F.Supp.2d 1367, 136869 (J.P.M.L.2006). Moreover, where, as here, a potential tag-along action shares questions of fact with previously centralized actions such that it can likely benefit from the fruits of the MDL discovery and other pretrial proceedings, opting out of a settlement does not preclude inclusion...