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Jo Ann Galati and Thomas Galati v. Pharmacia & Upjohn Co.

June 17, 2011

JO ANN GALATI AND THOMAS GALATI, PLAINTIFFS,
v.
PHARMACIA & UPJOHN CO., WYETH, INC.,
WYETH PHARMACEUTICALS, AND PFIZER, INC.,
DEFENDANTS.



The opinion of the court was delivered by: Seybert, District Judge:

MEMORANDUM AND ORDER

Pending before the Court is Defendants' motion to stay the proceeding (Docket Entry 40) and Plaintiffs' unopposed motion to amend their Complaint (Docket Entry 41). For the reasons that follow, Defendants' motion to stay is DENIED and Plaintiffs' motion to amend is GRANTED.

BACKGROUND

On June 15, 2004 Jo Ann Galati and her husband Thomas Galati ("Plaintiffs") commenced this action against the Pharmacia & Upjohn Company, Wyeth, Wyeth Pharmaceuticals, and Pfizer ("Defendants.") Compl. ¶ 50. Plaintiffs allege that Mrs. Galati's breast cancer was caused by Premarin and Provera, prescription hormone replacement therapy drugs manufactured and marketed by Defendants. Compl. ¶ 1. Plaintiffs' claims include fraudulent concealment, negligence, failure to warn, design defect, breach of implied warranty, and loss of consortium. Compl. ¶¶ 21-48.

Plaintiffs' case was consolidated with hundreds of similar cases into a multi-district litigation proceeding before the district court in the Eastern District of Arkansas. In re Prempro Prods. Liab. Litig., 254 F. Supp. 2d 1366 (J.P.M.L. 2003). It was later remanded to the district court in Minnesota, then transferred to this Court.

DISCUSSION

The Court first addresses Defendants' motion to stay and then discusses Plaintiffs' motion to amend.

I. Motion to Stay

Defendants anticipate that the MDL court will rule on the admissibility of expert testimony concerning causation in cases brought by plaintiffs whose cancer tested Estrogen Receptor-Negative ("ER-negative"). (Defs.' Mot. for Stay.) Since Mrs. Galati's Cancer tested ER-negative, this Court also will have to determine the admissibility of expert testimony regarding causation in patients with ER-negative cancer. Defendants seek a stay pending the MDL court's ruling because the MDL court has acquired expertise in this field and its decision will therefore aid this Court in determining the admissibility of such expert testimony. Id.

Plaintiffs maintain that this case ought to proceed as scheduled for three reasons. First, they assert that the MDL court will not render a binding or overly persuasive ruling, as the admissibility of expert witnesses is a fact-specific inquiry determinable only on a case-by-case basis. (Pls.' Opp. to Stay ¶ 15.) Second, Plaintiffs argue that a stay is unwarranted in light of the extreme hardship that they will face as a result of the delay. Id. ¶ 1. Third, they allege that the MDL court's ruling, and any clarification the ruling may provide, will be available before this case goes to trial. Id.

A. Legal Standard

Incidental to the Court's power to control its docket is its broad power to stay proceedings in order to promote judicial economy and fairness to the litigants. Landis v. North American Co., 299 U.S. 248, 254, 57 S. Ct. 163, 166, 81 L. Ed. 153 (1936). A stay may be granted if the "court finds it efficient for its own docket and the fairest course for parties." Levya v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 863 (9th Cir. 1979). However, where there is "even a fair possibility that the stay will work damage to someone else," the stay is inappropriate absent the proponent's "mak[ing] out a clear case of hardship or inequity in being required to go forward." Landis, 299 U.S. at 255. Accordingly, where the proponent's hardship in being required to proceed is outweighed by the interest in judicial efficiency and the hardship on the nonmoving party as a result of the delay, a stay should not be granted. Id.

B. A Stay Is Not Warranted

At the outset, the Court notes that Defendants have moved to stay proceedings in other ER-negative cases remanded from the MDL court, and nine district courts have denied the motion. Order on Motion to Stay, Hansen v. Wyeth, No. 04-0156 (M.D. Fla. Mar. 21, 2011), ECF No. 77; Order on Motion to Stay, Waites v. Wyeth, No. 04-1080 (M.D. Ala. Mar 22, 2011), ECF No. 59; Order on Motion to Stay, Sauls v. Wyeth, No. 04-2297 (D.S.C. Mar. 22, 2011), ECF No. 42; Order on Motion to Stay, Baird v. Wyeth, No. 10-2187 (C.D. Ill. Mar. 23, 2011) ECF No. 35; Order on Motion to Stay, Lowen v. Wyeth, No. 03-2166 (N.D. Ala. Mar. 15, 2011) ECF No. 39; Order on Motion to Stay, Kaufman v. Wyeth, No. 02-2692 (S.D. Fla. Mar. 7, 2011) ECF No. 94; Order on Motion to Stay, Zahn v. Wyeth, No. G-10-51 (S.D. Tex. Mar. 16, 2011) ECF No. 40; Order on Motion to Stay, Wisneski v. Wyeth, No. 04-1193 (D. Md. Apr. 1, 2011) ECF No. 44; Order on Motion to ...


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