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In re OxyContin II

February 10, 2009


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

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

This court denies the defendants' motions to dismiss the non-New York plaintiffs based upon the New York Civil Practice Law and Rules (CPLR) §327(a) because New York is the most convenient forum to adjudicate these coordinated pharmaceutical products liability mass tort cases.

Procedural History

On July 8, 2005, the New York Litigation Coordinating Panel issued a Coordination Order that directed that this court coordinate all discovery and pre-trial matters concerning all cases with the prescription pain medication OxyContin, pending before the courts of the various counties in New York. The coordination order applied to all OxyContin cases then in existence, as well as any future OxyContin lawsuits brought in New York state courts. Subsequent to the issuance of the coordination order, the plaintiffs' lawyers filed 1,117 law suits in this court of which 193 were brought by New York residents and the remaining 924 non-New York plaintiffs were from various states, as well as from Canada, Guam and the United Kingdom. In February 2006 the Purdue Defendants ("Purdue"), the manufacturer of OxyContin, moved this court to dismiss the 924 lawsuits brought by out of state plaintiffs on the ground of forum non conveniens. While that motion was sub judice the defendants conducted negotiations with the plaintiffs' attorneys to attempt a universal settlement for all of the 1,117 cases. However, on January 19, 2007, prior to the execution of the necessary settlement agreement documents, this court denied defendants' forum non conveniens motion to dismiss the out of state plaintiffs.*fn1

In October 2007 Purdue learned that only one plaintiff, Sharon Ann Andre-Drake, a resident of Davenport, Iowa, refused to execute the settlement documents. Subsequent to this revelation Purdue filed a motion for leave to renew its forum non conveniens motion because of a change of circumstances. Concurrently, Andre-Drake's counsel filed a motion to be relieved as counsel for a breakdown in communication with the client. This court issued an order dated January 11, 2008 relieving Andre-Drake's counsel and further ordered that her complaint would be dismissed unless within 30 days she obtained new counsel to continue the law suit. Ms. Andre-Drake never retained another attorney, nor did she ever communicate with this court. Based on that decision this court denied Purdue's motion for leave to renew their forum non conveniens motion as moot. Consequently, Purdue withdrew its appeal of the January 19, 2007 order denying dismissal of the out of state cases.

In August of 2007 the law firm of Sanders Viener Grossman LLP ("The Sanders firm") started another round of cases by filing 19 cases against Purdue, wherein only one of the plaintiffs was a New Yorker. Purdue moved to dismiss all of the 18 non-resident plaintiffs from these coordinate actions on the grounds of forum non conveniens. But before oral argument on those motions took place, the Sander's firm filed an additional 258 cases, bringing the total number of cases to 277, of which 29 are New York residents.

The plaintiffs have agreed to dismiss the actions against the corporate officers and the parties have agreed to have this issue of forum non conveniens decided for all of the now 248 non-resident plaintiffs in this second round of cases.*fn2


At the heart of the OxyContin pharmaceutical products liability actions before this court are allegations that as a result of the ingestion of OxyContin tablets the plaintiffs suffered severe physical and mental injuries to include nausea and addiction to OxyContin, which lead to numerous consequential damages to include, loss of jobs, divorce and suicide. While the plaintiffs did not ingest the drug at the same times, these cases are similar to other mass toxic torts. Judge Jacob Weinstein, of the U.S. District Court for Eastern District of New York, who is renowned for his handling of mass torts stated in the DES mass tort cases*fn3 that lawsuits such as those brought by the plaintiffs are governed by . . . a doctrine analytically distinct from negligence in a conscious attempt to adapt tort law to the development of an economy of mass marked, mass produced consumer goods, . . . modern cases and statutes operate within the parameters marked by Judge Cardozo even as they advance the cause of injured plaintiffs and seek to protect defendants against the unfair imposition of liability.*fn4

Judge Weinstein stated further that "[t]rue mass torts . . . raise qualitatively different and more intractable problems. These cases typically involve the torts of a post-industrial age, the so-called mass toxic torts. . . The litigation complexities raised by mass torts are legion."*fn5 By virtue of the complicated nature associated with mass tort litigation the legislature cannot create procedural rules for every possible issue that may arise during the course of a mass tort trial.

Courts trying mass tort claims are placed in a position to innovate solutions for both plaintiffs and defendants that respect the rule of law and the principles of judicial economy. In the instant matter defendants argue that this court should grant their forum non conveniens motion, because not to do so would ". . . effectively created a nationwide Multidistrict (state) Litigation (MDL) venue for OxyContin litigation."*fn6 Defendants argue that should this court not find in their favor, the very core of our federal separation of powers between the state and federal judiciary will be violated. Yet, the defendants do not contest that this court has jurisdiction to decide this matter. Instead, the defendants argue that the standard of judicial scrutiny employed in evaluating claims of forum non conveniens, is greater than mere jurisdiction and venue issues.

The defendants cite to Justice Carol Robinson Edmead's trial court decision in Jordan v. Pfizer, Inc.*fn7 and Justice Martin Shulman's decision in Wilson v. Pfizer, Inc.*fn8 to support their position that New York courts should not entertain suits brought by non-resident plaintiffs against corporations that qualify as New York resident's for the purposes of litigation on the grounds of forum non conveniens. However, those cases are not applicable in the context of mass toxic torts. Unlike, the case at bar the Jordan case involved five nonresident plaintiffs, none of which was a New York resident who complained of the ill effects of Viagra, the male virility enhancing drug. Hence, in that instance, none of the cases needed to proceed in New York state courts just because the defendant, Pfizer, Inc., was a New York corporate resident.

In Justice Shulman's decision in Wilson, which involved the cholesterol-lowering drug Lipitor, there was only one Georgia plaintiff involved in that case. Both Justices Edmead and Shulman were well within their discretion to dismiss those cases where no New York plaintiffs were present because dismissing those cases was dispositive of the entire litigation as none of them were part of a mass tort. Here, however, at least 29 New York plaintiffs will proceed to trial with or without the non-resident plaintiffs. Therefore, dismissing the non-resident plaintiffs will not dismiss the mass tort cases, but merely streamline them.

The defendants have recently disclosed that one of the Florida plaintiffs, who filed in this court has also filed a similar action with other plaintiffs in a Florida Circuit Court, to illustrate that residents of Florida and residents of other states can file suit in their own state and therefore, need not be included in this New York mass tort coordinated proceeding. While this may be true, having cases brought in the various county, district or circuit courts of the 50 states and the District of Columbia and Puerto Rico, along with the 91 U.S. District Courts is hardly an efficient means to dispose of mass tort cases and is contrary to the trend of how mass tort cases have been resolved.

Mass Torts Are Different

Mass torts involved similar claims against the same defendants and are usually coordinated before one judge to maximize judicial economy and the efficiencies of handling the discovery in an organized uniform manner, minimizing the duplication of deposing defendants' witnesses and the collection of universal data concerning the product.*fn9

Mass torts generally are handled as either coordinated matters before one judge, pursuant to an order of the New York Litigation Coordinating Panel (LCP) ,*fn10 as with the case here, or, if appropriate, as a class action before one judge.*fn11 This is also true in the federal courts, where judicial economy dictates that similar cases pending in more than one federal district court be referred to the ...

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