CIRULLI et al v. BAUSCH & LOMB INCORPORATED
Filing
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MEMORANDUM AND ORDER THAT DEFENDANT'S MOTION TO STAY IS GRANTED. ALL PROCEEDINGS IN THIS CASE ARE STAYED PENDING A FINAL DECISION BY THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION ON THE TRANSFER OF THIS MATTER. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 3/3/09. 3/4/09 ENTERED AND COPIES MAILED AND E-MAILED.(ah) [Transferred from Pennsylvania Eastern on 4/17/2009.]
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA JOSEPH CIRULLI and KELLIE ANN CIRULLI, h/w, Plaintiffs v. BAUSCH & LOMB, INC., Defendant : : : : : : : :
CIVIL ACTION
NO. 08-4579
MEMORANDUM STENGEL, J. March 3, 2009
A n international eye health corporation facing a deluge of lawsuits arising from the ill effects of the use of its product moves to stay the instant action pending transfer and c o n so lid a tio n of this action to the multidistrict litigation proceeding in the United States D is tric t Court for the District of South Carolina (MDL No. 1785). After review of the p a rtie s' memoranda, I will grant the motion.
I . Background B a u s c h & Lomb, Inc. is an international corporation dedicated to promoting eye h e a lth . The pending action stems from the use of one of its products: ReNu with M o is tu re L o c (ReNu), a brand of contact lens cleaning solution that is sold worldwide. Bausch & Lomb has marketed the product as "a safe and effective multi-purpose contact le n s solution which `cleans, rinses, disinfects, and stores soft contact lenses' and `makes d a ily lens care easy.'" (Compl. ¶ 10.) In 2006, Bausch & Lomb suspended sales of ReNu after months of public health
re p o rts linked its use to an increase in Fusarium Keratitis infections. Keratitis is an eye in f e ctio n that can affect the entire cornea. (Id. ¶ 16.) Symptoms can include "eye pain, e ye discomfort, decrease in vision, light hypersensitivity, eye redness, eye burning, itc h in g , and a white filmy patch in the cornea." (Id.) If not properly treated, surgery may b e required to remove fungal and/or ulcer lesions; in severe cases, permanent corneal s c a rr in g may develop. (Id. ¶ 17.) Sales were first suspended in Asia in early 2006. Increased reports of infections in the United States came soon thereafter. (Id. ¶¶ 2425.) The U.S. Food & Drug Administration and the Centers for Disease Control issued a joint p re ss release on April 10, 2006, reporting the increasing numbers of keratitis infections a ss o c ia te d with ReNu. (Id. ¶ 28.) On April 13, 2006, Bausch & Lomb suspended d o m e stic shipments of the product, and on May 15, 2006, the company announced a v o lu n tar y global withdrawal. S u its against Bausch & Lomb began arising across the country. (Def.'s Motion to S ta y at 1 (Document #7).) On August 14, 2006, the Judicial Panel on Multidistrict L itig a tio n (JPML) issued a Transfer Order pursuant to 28 U.S.C. § 1407 centralizing the R e N u -re la te d litigation in the District of South Carolina. In re Bausch & Lomb, Inc. C o n ta c t Lens Solution Products Liability Litigation, 444 F. Supp. 2d 1336 (J.P.M.L. 2 0 0 6 ). The Panel found centralization to be necessary "to eliminate duplicative d isc o v e ry, prevent inconsistent rulings, and conserve the resources of the parties, their c o u n se l and the judiciary." Id. at 1338. The Panel noted that the actions shared in
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c o m m o n factual allegations regarding "i) the development, testing, manufacturing and m a rk e tin g of Renu with MoistureLoc; and ii) [Bausch & Lomb's] knowledge concerning R e n u with MoistureLoc's alleged adverse effects, in particular, the potential for this p ro d u c t to cause fungal keratitis." Id. Additionally, all of the actions sought damages for p e rs o n a l and/or economic injuries, and "assert[ed] various state law claims, such as n e g lig e n c e, products liability, breach of warranties, and negligent and/or fraudulent m is re p re se n ta tio n ." Id. P la in tif f s, Mr. Joseph Cirulli and Ms. Kellie Ann Cirulli, husband and wife, have b ro u g h t this action alleging that Mr. Cirulli's use of the ReNu product caused physical a n d financial injury. Mr. Cirulli was diagnosed as having a keratitis infection of the right e ye after developing symptoms consistent with such an infection. (Compl. ¶ 33.) Despite see k ing treatment, he has suffered corneal scarring and permanent damage. (Id. ¶ 34.) He continues to have various symptoms, and the vision in his right eye is impaired. (Id. ¶ 3 5 .) Due to the infection, he has incurred medical costs and will continue to do so into th e future. (Id.) He has brought claims for breaches of express and implied warranties, f a ilu re to warn, negligence, negligence per se, negligent misrepresentation, fraud, and d e c e it. (Id. ¶¶ 3689.) Ms. Cirulli seeks damages for loss of consortium. (Id. ¶¶ 9093.) O n December 4, 2008, the JPML issued a Conditional Transfer Order for this case a s a potential "tag-along action" to the multidistrict litigation.
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I I . Standard of review T h e power to stay proceedings is an inseparable facet of the court's inherent a u th o rity "to control the disposition of the causes on its docket with economy of time and ef fo rt for itself, for counsel, and for litigants." Cheyney State Coll. Faculty v. Hufstedler, 7 0 3 F.2d 732, 737 (3d Cir. 1983) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254 (19 3 6 )). When deciding a motion to stay proceedings pending the resolution of another action in federal court, courts have considered three factors: "(1) the promotion of judicial e c o n o m y; (2) the balance of harm to the parties; and (3) the duration of the requested stay." Ciolli v. Iravani, 2008 WL 4412053, at *2 (E.D. Pa. Sept. 23, 2008).
I I I . Discussion I will grant Bausch & Lomb's motion to stay because there are common issues of f a ct between this action and the MDL, a stay would promote judicial economy, the p o te n tia l harm to the parties weighs in favor of the defendant, and the duration of the re q u e ste d stay would not be detrimental. T h e factual similarities between this case and the MDL are unmistakable. As the J P M L indicated in its Conditional Transfer Order, common questions of fact are shared. (Def.'s Motion to Stay Ex. A (Conditional Transfer Order 38).) The Cirullis' injuries w e re caused by a keratitis infection allegedly linked to using ReNu. They have claimed th a t the company was negligent in its manufacture and sale of the product. As in the
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M D L , there will likely be discovery requests regarding Bausch & Lomb's development, te stin g , marketing and manufacturing of ReNu as well as the company's knowledge of the p o te n t ia l adverse effects. T h e Cirullis counter that Bausch & Lomb failed to establish that "the common q u e stio n s of fact are so complex and the accompanying discovery so time-consuming as to overcome the inconvenience to the party whose action is being transferred. (Pls.' R e p ly at 5 (citing In re Brandywine Associate Antitrust & Mortg. Foreclosure Litigation, 4 0 7 F. Supp. 236 (J.P.M.L. 1976)).) Though seemingly on point, this statement of the la w is wholly irrelevant. The Cirullis state the standard the JPML has used when ruling o n initial motions to transfer and consolidate actions. See In re Scotch Whiskey Antitrust L itig a tio n , 299 F. Supp. 543, 544 (J.P.M.L. 1969) (denying a motion to transfer and c o n so lid a te two actions because there were no unusually complex questions of fact or d is c o v e ry issues overriding the potential inconvenience to the plaintiffs). In this case, the decision to centralize has already been made. As of January, 2009, m o re than 400 ReNu-related actions have been brought against Bausch & Lomb, and th e se are gradually being consolidated into the multidistrict litigation proceedings. The c o m p a n y did not need to meet the high burden that the Cirullis proposed. Bausch & L o m b merely had to demonstrate factual commonality between the actions, which it has done. T h e factual similarity of the cases informs my analysis of the judicial economy
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f a cto r. Allowing the Cirullis to proceed may subject Bausch & Lomb to competing pretria l and discovery rulings. Any schedule or rulings I make now may turn out to have no e f f e c t, if and when this transfer is finalized. Proceeding on an individual basis may inex p lica b ly subject Bausch & Lomb to different discovery schedules and court orders w h e n the bases of each litigation are not remarkably distinguishable. Because this litig a tio n would benefit from the orderly, consolidated discovery and motions schedule to b e provided in the multidistrict litigation, I find that judicial economy is best promoted by a llo w in g Judge Norton to resolve these issues for all parties at one time. T h e plaintiffs contend that a stay would require them to "expend additional time a n d effort to proceed with this action resulting in substantial, unnecessary and undue p re ju d ice ." (Pls.' Reply at 4.) The loss of some time and effort is an initial inevitability w h en multidistrict litigation is commenced. Once the actions are centralized, however, th e plaintiffs will be able to benefit from the large-scale coordination on their end as well a s the defendant's. See In re Gen. Adjustment Bureau Antitrust Litig., 375 F. Supp. 1405, 1 4 0 7 (J.P.M.L. 1973) ("[A]ny additional expense to plaintiff [caused in transferring the c a se to the multidistrict litigation] will be more than offset by the elimination of d u p lic a tiv e effort which accrues from coordinated or consolidated pretrial proceedings. And it is likely that plaintiff will achieve a savings of expenses by pooling his efforts with the other plaintiffs in the transferee district."). Considering the number of actions that are p e n d in g in the district courts, I find that the harm to individual plaintiffs such as the
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C ir u llis is outweighed by the potential prejudice to Bausch & Lomb and the possible cost a n d time efficiencies each plaintiff would enjoy from coordinated litigation. F in a lly, the duration of the requested stay is unknown. The Conditional Transfer O r d e r implies that transfer will be finalized, but no deadline is provided. Bausch & Lomb h a s not provided any significant evidence on when the decision could be expected. With n o other information presented, I find that this factor lies in favor of denying the stay. M y determination on the duration factor does not compel me to dismiss the m o tio n . It is but one factor I have considered. For the reasons set forth more fully above, I find that the factors of judicial economy and prejudice to the parties clearly outweigh the u n c e rta in ty of the pending duration. See, e.g., American Seafood, Inc. v. Magnolia P r o c e ss in g , Inc., 1992 WL 102762, at *12 (E.D. Pa. May 7, 1992) (granting the d e f en d a n t's motion to stay where the length of the stay was uncertain but would only be in effect until the Joint Panel on Multidistrict Litigation had issued a ruling on tra n s f e rr in g the matter).
IV. Conclusion F o r the foregoing reasons, I will grant the defendant's motion. An appropriate O r d e r follows.
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA JOSEPH CIRULLI and KELLIE ANN CIRULLI, h/w, Plaintiffs v. BAUSCH & LOMB, INC., Defendant : : : : : : : :
CIVIL ACTION
NO. 08-4579
ORDER STENGEL, J.
AND NOW, this 3d day of March, 2009, upon consideration of the defendant's Motion to Stay (Document #7) and the plaintiffs' response thereto, it is hereby ORDERED that the motion is GRANTED. All proceedings in this case are STAYED pending a final decision by the Judicial Panel on Multidistrict Litigation on the transfer of this matter.
BY THE COURT:
/s/ Lawrence F. Stengel LAWRENCE F. STENGEL, J.
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