United States District Court, N.D. Oklahoma
IN RE ACTOS (PIOGLITAZONE) PRODUCTS LIABILITY LITIGATION This document applies to: The Cherokee Nation Civil Action 6:15-cv-1485
MAGISTRATE JUDGE, HANNA
MEMORANDUM RULING: DEFENDANTS' AMENDED MOTION TO
TRANSFER VENUE OR IN THE ALTERNATIVE. TO DISMISS
REBECCA F. DOHERTY, UNITED STATES DISTRICT JUDGE
before this Court is an Amended Motion to Transfer Venue, or
in the Alternative, to Dismiss (hereinafter referred to as
the "Motion") filed by defendants Takeda
Pharmaceuticals USA, Inc. (f/k/a Takeda Pharmaceutical North
America, Inc.), Takeda Development Center Americas, Inc.
(f/k/a Takeda Global Research & Development Center,
Inc.), Takeda Pharmaceuticals America, Inc., Takeda
California, Inc. (f/k/a Takeda San Diego, Inc.), Takeda
Pharmaceuticals International, Inc., and Takeda
Pharmaceutical Company Limited (hereinafter collectively
referred to as "Takeda") (Rec. Doc. 27), which was
joined by Defendant Eli Lilly and Company (Rec. Doc. 28).
Takeda's motion was opposed by The Cherokee Nation (Rec.
Doc. 29). Considering: (1) the briefing filed by Takeda, Eli
Lilly and Company and The Cherokee Nation; and (2) the
arguments by the parties at hearings held by the Court on the
record on September 25, 2017; and for the reasons that
follow: the Court GRANTS Takeda's Motion to Transfer
Venue, as Amended, and these claims are TRANSFERRED to the
Northern District of Oklahoma. The Court declines to rule on
the underlying substantive motions filed in the alternative
multidistrict litigation arises from product liability claims
against the manufacturer and marketer of Actos® and other
drugs containing pioglitazone. These MDL proceedings were
instituted by the Judicial Panel on Multidistrict Litigation
by order dated December 29, 2011. (MDL Rec. Doc. 1).
facilitate the filing of cases, in the instant case, the
parties negotiated and agreed to enter into a "First
Amended Case Management Order, " (MDL Rec. Doc. 2597)
which was later amended on July 27, 2012 (the "Second
Amended Case Management Order") (MDL Rec. Doc. 1538),
which permits the parties to directly file their claims in
the Western District of Louisiana, regardless of venue
(hereinafter referred to as the "Direct File
Order"). The Order states as follows:
CASE MANAGEMENT ORDER
I. Scope of Order
This Agreed Order applies to claims brought by any U.S.
citizen or resident based on alleged ingestation of
Actos®, ACTOplus Met®, ACTOplus Met XR®,
Duetact®, or pioglitazone ("Actos") that (i)
currently are pending in MDL No. 2299, (ii) currently are
pending in the Western District of Louisiana and are related
to MDL No. 2299, or (iii) will be filed in, removed to, or
transferred to this Court (collectively, "the MDL
II. Direct Filing of Cases in MDL 2299
A. In order to eliminate delays associated with transfer to
this Court of cases filed in or removed to other federal
district courts, and to promote judicial efficiency, any
plaintiff whose case would be subject to transfer to MDL 2299
may file his or her case directly in the MDL Proceedings in
the Western District of Louisiana (such cases are sometimes
referenced as "Direct-Filed Cases").
B. Each case filed directly in the MDL Proceedings by a
plaintiff who resides in a federal district other than the
Western District of Louisiana will be filed in the MDL
Proceedings for purposes of pretrial proceedings, consistent
with the Judicial Panel on Multidistrict Litigations'
December 29, 2011 Transfer Order ("Transfer
C. Defendants will not challenge the venue of any
Upon the completion of pretrial proceedings consistent with
this Transfer Order, this Court, pursuant to 28 U.S.C.
1404(a), will transfer Direct-Filed Cases to the federal
district court in the district where the plaintiff allegedly
was injured by use of Actos, or where the plaintiff resides
at the time of such transfer, subject to severance of
multi-plaintiff actions if necessary. The parties
will jointly advise the Court of the district to which each
Direct-Filed Case should be transferred.
D. Parts II.B and II.C do not preclude the parties from
agreeing, at a future date, to try certain Direct-Filed Cases
in this District.
E. The inclusion of any action in In Re: Actos Products
Liability Litigation, MDL 2299, whether such action was or
will be filed originally or directly in the Western District
of Louisiana, shall not constitute a determination by
this Court that jurisdiction or venue is proper in this
Direct File Order (emphasis added) (MDL Rec. Doc. 1538).
the Cherokee Nation case is pending in this Court by virtue
of the Direct File Order that was negotiated by the parties
and instituted by the Court. However, the Direct File Order
contains certain underlying assumptions and conditions, and
without those assumptions being met, it specifically does not
confer proper venue in the case. The Direct File Order
specifically contemplates the parties will jointly advise the
Court as to where the returning cases should be transferred
once all pretrial matters are complete, and continues to
specifically state that inclusion within the MDL does not
equal a determination that venue is proper in the Western
District of Louisiana. It also notes 1404(a) concerns should
govern and outlines certain of those provisions.
Consequently, the Order contemplates transfer should occur
once pretrial matters are complete, § 1404(a) concerns
should govern, and the parties are to jointly advise the
Court to where the matter should be transferred.
pretrial process has run its course with over 11, 000 state
and federal cases having been resolved, a bellwether trial
having been had, and underlying matters having been resolved.
In June 2017, the parties conferred to discuss transfer of
the case pursuant to the Direct File Order. On June 12, 2017,
by email to the Special Master, counsel for the plaintiff
stated that, "for the purpose of advising the Judge,
[the lawyers for the parties] have agreed that the Northern
District of Oklahoma is an appropriate forum." (Rec.
Doc. 13-2). Plaintiff acknowledges the existence of this
email, but focuses its argument on the fact that it has not
agreed to the transfer of this matter to the Northern
District of Oklahoma. This Court agrees, but the fact that
this email does not constitute an agreement to transfer does
not negate the email in its entirety. The Court finds that
the email constitutes an acknowledgment by the plaintiff that
the Northern District of Oklahoma is a proper venue for this
August 17, 2017, Takeda filed a Motion to Transfer Case to
the Northern District of Oklahoma (Rec. Doc. 13), which was
joined by Eli Lilly (Rec. Doc. 12). On August 24, 2017,
Plaintiff filed its Response to Takeda's Motion to
Transfer (Rec. Doc. 15). On September 15, 2017, with leave of
court, Takeda filed a Reply in Support of it Motion to
Transfer (Rec. Doc. 20), which was joined by Eli Lilly via
oral motion on September 25, 2017 (Rec. Doc. 21). On
September 25, 2017, oral argument was held on the motion.
This Court ruled from the bench as follows:
So the final ruling by this Court is that Takeda's and
Eli Lilly's motion to transfer venue [Doc. 13] is granted
in part and denied in part as follows:
The motion to transfer the Cherokee Nation's claims based
on the use of Actos set of claims, i.e., the negligence and
implied warranty, is granted, and these claims are
transferred to the Northern District of Oklahoma for the full
reasons given by this Court.
However, as to the motion to transfer the Cherokee
Nation's claims that arise by way of how the, quote,
settlement of the Actos litigation was handled and whether
the Nation's quote, unquote, lien was protected in that
settlement, those are deferred pending a full discussion and
briefing of those claims which will now be set by this Court.
of Oral Argument on Motion to Transfer Venue at 53:5-18,
September 25, 2017, In Re: Actos (Pioglitazone) Products
Court clarified that with respect to its first ruling, the
defendants would have to make a motion to sever the
plaintiffs claims based on the individual use of Actos from
the plaintiffs settlement based claims before the individual
use claims could be transferred to the Northern District of
Oklahoma. However, counsel for Takeda indicated it needed to
discuss the Court's preliminary ruling with their client
on this issue so the Court granted the parties additional
time to discuss it with their clients and provide the Court
with their clients' positions pursuant to the briefing
schedule. Transcript of Oral Argument on Motion to Transfer
Venue at 88:8-19, September 25, 2017, In Re: Actos
(Pioglitazone) Products Liability Litigation.
conjunction with granting counsel for Takeda time to confer
with their client regarding the issue of severance, on
September 26, 2017, this Court issued a Minute Entry to
clarify its ...