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Colacicco v. Apotex

December 10, 2009

JOSEPH C. COLACICCO, PLAINTIFF,
v.
APOTEX, INC., ET AL., DEFENDANTS



The opinion of the court was delivered by: Baylson, J.

MEMORANDUM RE: PLAINTIFF'S MOTION TO SEVER CLAIMS AND TRANSFER VENUE

I. Introduction

Presently before the Court is Plaintiff's motion to sever claims under Fed. R. Civ. P. 21, and to transfer venue under 28 U.S.C. § 1404(a). For the reasons discussed below, the Court will deny Plaintiff's motion.

II. Factual Background and Procedural History

In 2005, Plaintiff, a New York resident, filed suit against SmithKline Beecham d/b/a GlaxoSmithKline ("GSK"), a Pennsylvania corporation located in Pennsylvania; Apotex, Inc., a Canadian corporation located in Toronto, Canada; and Apotex Corporation, a Delaware corporation located in Florida. The underlying basis for Plaintiff's claims was that Defendants failed to include adequate warnings as to the risk of suicide with the antidepressant paroxetine hydrochloride, GSK's "Paxil" and Apotex's generic, and that as a result, Plaintiff's wife was prescribed and took paroxetine for her depression, and committed suicide. Both GSK and Apotex filed Motions to Dismiss under Fed. R. Civ. P. 12(b)(6). The Court held that the claims against all Defendants were preempted by the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 355(a), and granted the Motions to Dismiss.

In this Court's decision, although the entire case was dismissed on preemption grounds, the Court also ruled on the specific common law grounds alleged by Plaintiff in the Complaint. See Colacicco v. Apotex, 432 F.Supp. 2d 514 (E.D. Pa. 2006), aff'd 521 F.3d 253 (3d Cir. 2008), vacated 129 S.Ct. 1578 (2009). As to Defendant GSK, the Court held that because the drug which Plaintiff ingested was manufactured by Apotex, GSK did not owe any duty of care to the Plaintiff. Id. at 538-43. With regard to the specific claims against Apotex, this Court ruled that but for the preemption ruling, several of Plaintiff's claims against Apotex -- specifically, those based on any theory of negligence -- would have proceeded to trial. Id. at 543-44.

Plaintiff appealed to the Third Circuit Court of Appeals, which affirmed the decision. This Court does not know if Plaintiff sought reversal of the decision which dismissed the common law claims against GSK, and the Third Circuit did not discuss the issue. A Petition for Certiorari was filed by the Plaintiff with the United States Supreme Court, which vacated the judgment of the Third Circuit and remanded the case for consideration in light of the Supreme Court's decision in Wyeth v. Levine, 129 S.Ct. 1187 (2009). On remand, the Third Circuit vacated its judgment, and remanded the case back to this Court for further proceedings consistent with Wyeth.

This Court held a hearing on June 18, 2009, after which the Court concluded that GSK was no longer a party to this case (Doc. No. 66) because this Court's decision of May 25, 2006 ruled that all of the common law claims against GSK were dismissed. On June 19, 2009, the docket was amended to remove GSK as a party.

On October 5, 2009, the Court entered a Consent Scheduling Order resulting in the Defendants filing a Motion for Summary Judgment on the preemption issue. The parties have commenced discovery on that issue alone.

On August 21, 2009, Plaintiff filed a motion to (1) sever claims against GSK under Fed. R. Civ. P. 21, and (2) transfer Plaintiff's claims against Defendants Apotex, Inc. and Apotex Corporation (hereinafter "Apotex") to the Eastern District of New York under 28 U.S.C. § 1404(a) (hereinafter "§ 1404(a)"). (Doc. No. 70.) Apotex filed its response in opposition on September 7, 2009. (Doc. No. 71.) Plaintiff filed his reply on September 14, 2009. (Doc. No. 72.) The Court held oral argument on Plaintiff's motion on November 24, 2009.

III. Parties' Contentions

A. Plaintiff

Plaintiff has not been entirely clear in his briefing as to the relief that he desires. Plaintiff filed a Motion to Sever GSK and Transfer the claims against Apotex to the Eastern District of New York. The Court rejected that concept out of hand at oral argument because it would result at some point in Plaintiff's claims against GSK, which this Court dismissed, being appealed to the Third Circuit Court of Appeals, whereas the claims of Apotex would be tried in the Eastern District of New York, and any final order or judgment in that court would be appealable to the Second Circuit Court of Appeals. Splitting this case and having two separate Circuit Courts rule on Plaintiff's theories would be poor case management and impose an unnecessary burden on one of those appellate courts.

When this was explained at oral argument, Plaintiff's counsel retreated somewhat and expressed a willingness to give up the request for severance, and asked that the entire case be transferred to the Eastern District of New York under ยง 1404(a), which provides that a court may transfer a case (1) to a district where the case could have been brought, and (2) where the convenience of parties and witnesses, and the interest of justice, weigh in favor of transfer. Plaintiff contends that the private and public interests that must be weighed when deciding a motion to transfer weigh strongly in favor of transfer. Plaintiff also argues that while ...


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