Esposito v. Xanodyne Pharmaceuticals, Inc., No. 2:2011cv00175 - Document 158 (E.D. Ky. 2012)

Court Description: MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFFS' MOTION TO AMEND MEMORANDUM OPINION AND ORDER REGARDING GENERIC DEFENDANTS' MOTION TO DISMISS IN ORDER TO CERTIFY RULING FOR INTERLOCUTORY APPEAL: plaintiffs' motion to amend this C ourts Memorandum Opinion and Order Regarding Generic Defendants' Motions to Dismiss in order to certify its ruling for interlocutory appeal [Record No. MDL 1597] is DENIED. Signed by Judge Danny C. Reeves on 4/27/2012. Associated Cases: 2:11-md-02226-DCR et al.(CBD)cc: COR Modified text (caption) on 4/27/2012 (CBD).

Download PDF
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION (at Covington) ) ) ) ) ) ) Esposito v. Xanodyne Pharm., Inc., et al., ) Corso v. Teva Pharm. USA, Inc., et al., ) Alix v. Eli Lilly and Company, et al., Smith v. Mylan Pharmaceuticals, Inc., et al., ) ) Gilbert v. Eli Lilly and Company, et al., Hunsucker v. Xanodyne Pharm., Inc., et al., ) ) West v. Qualitest Pharm., Inc., et al., ) Trimboli v. Xanodyne Pharm., Inc., et al., ) Eldredge v. Xanodyne Pharm., Inc., et al., ) Kellehar v. Xanodyne Pharm., Inc., et al., ) Hallaway v. Eli Lilly and Company, et al., ) Lowe v. Xanodyne Pharm., Inc., et al., ) Coney v. Xanodyne Pharm., Inc., et al., Rogers v. Xanodyne Pharm., Inc., et al., ) R. Knight v. Teva Pharm. USA, Inc., et al., ) Oniate v. Eli Lilly and Company, et al., ) Simpson v. Qualitest Pharm., Inc., et al., ) Lynch v. Xanodyne Pharm., Inc., et al., ) Turner v. Watson Pharm. (NJ), Inc., et al., ) Dickerson v. Eli Lilly and Company, et al., ) Labit v. Xanodyne Pharm., Inc., et al., ) Balben v. Xanodyne Pharm., Inc., et al., ) Forrest v. Xanodyne Pharm., Inc., et al., ) Noel v. Xanodyne Pharm., Inc., et al., ) Green v. Xanodyne Pharm., Inc., et al., ) Wheeler v. Xanodyne Pharm., Inc., et al., ) Sandel v. Eli Lilly and Company, et al., ) Miller v. Eli Lilly and Company, et al., ) IN RE: DARVOCET, DARVON AND PROPOXYPHENE PRODUCTS LIABILITY LITIGATION -1- Master File No. 2: 11-md-2226-DCR MDL Docket No. 2226 Civil Action No. 2:11-175-DCR Civil Action No. 2:11-179-DCR Civil Action No. 2:11-182-DCR Civil Action No. 2:11-183-DCR Civil Action No. 2:11-184-DCR Civil Action No. 2:11-185-DCR Civil Action No. 2:11-186-DCR Civil Action No. 2:11-189-DCR Civil Action No. 2:11-190-DCR Civil Action No. 2:11-191-DCR Civil Action No. 2:11-195-DCR Civil Action No. 2:11-196-DCR Civil Action No. 2:11-197-DCR Civil Action No. 2:11-200-DCR Civil Action No. 2:11-201-DCR Civil Action No. 2:11-206-DCR Civil Action No. 2:11-210-DCR Civil Action No. 2:11-213-DCR Civil Action No. 2:11-221-DCR Civil Action No. 2:11-295-DCR Civil Action No. 2:11-296-DCR Civil Action No. 2:11-297-DCR Civil Action No. 2:11-298-DCR Civil Action No. 2:11-299-DCR Civil Action No. 2:11-300-DCR Civil Action No. 2:11-301-DCR Civil Action No. 2:11-325-DCR Civil Action No. 2: 11-352-DCR MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFFS MOTION TO AMEND MEMORANDUM OPINION AND ORDER REGARDING GENERIC DEFENDANTS MOTION TO DISMISS IN ORDER TO CERTIFY RULING FOR INTERLOCUTORY APPEAL This matter is pending for consideration of the plaintiffs motion to amend the Court s Memorandum Opinion and Order entered March 5, 2012 [MDL Record No. 1305] in the above 28 cases1 for the purpose of certifying its ruling concerning the dismissal of claims asserted against the generic manufacturers and/or distributors of propoxyphene products for the purpose of allowing the plaintiffs to seek review of this interlocutory ruling by the United States Court of Appeals for the Sixth Circuit. [MDL Record No. 1597] Having reviewed this motion, the Court concludes that the relief sought should be denied. In limited circumstances, a party aggrieved by a federal court s interlocutory decision may seek appellate review. One statutory avenue for seeking such relief of purely legal questions provides that, [w]hen a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in 1 The Court s March 5, 2012, Memorandum Opinion and Order addressed motions filed by various generic manufacturers and distributors in 34 cases. Final judgments have now been entered in six of those cases. [See Civil Action No. 2: 11-199-DCR, Civil Action No. 2-11-209-DCR, Civil Action No. 2:11-212, Civil Action No. 2: 11-307-DCR, Civil Action No. 2: 11-311-DCR, and Civil Action No. 2: 11-312-DCR.] The plaintiffs in three of those cases have filed a Notice of Appeal. [See Civil Action No. 2: 11-199-DCR, Civil Action No. 2-11-209-DCR, Civil Action No. 2:11-212.] -2- the district court unless the district judge or the Court of Appeals or a judge thereof shall so order. 28 U.S.C. § 1292(b). Certification under § 1292(b) is a two-step process which involves close analysis by the district and appellate court. Further, it is reserved for truly exceptional circumstances. Cardwell v. Chesapeake & Ohio R. R. Co., 504 F.2d 444 (6th Cir. 1974); Kraus v. Bd. of Cnty. Road Comm rs for Kent Cnty., 364 F.2d 919 (6th Cir. 1966). In the present case, the plaintiffs do not seek to have the Court certify a discrete legal issue but, instead, its entire March 5, 2012, Memorandum Opinion and Order regarding the generic defendants potential liability in following the Supreme Court s decision in Pilva, Inc. v. Mensing, 131 S.Ct. 2567 (2011).2 They contend that the subject opinion clearly involves controlling questions of law because it resulted in the immediate dismissal of every claim asserted against a generic manufacturer of propoxyphene that was the subject of the motion to dismiss and that it would likely be extended to similar claims asserted against generic manufacturers.3 Further, they argue that there is substantial grounds for a difference of opinion regarding the correctness of the Court s ruling. While the undersigned agrees with the plaintiffs contention that the March 5, 2012, Memorandum Opinion and Order involves a controlling question as that term is defined under 2 Certification under § 1292(b) applies to the order certified to the appellate court, and not to the particular question formulated by the parties or the district court. Therefore, if certified, the appellate court could address any issue fairly included within the March 5, 2012, Memorandum Opinion and Order which is the subject of the plaintiffs present motion. Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (6th Cir. 2009) 3 The Sixth Circuit has determined that [if] resolution of the issue on appeal could materially affect the outcome of litigation in the district court, it may be considered a controlling question. In re Baker & Getty Fin. Servs., Inc., 954 F.2d 1169, 1172 (6th Cir. 1992). -3- 28 U.S.C. § 1292(b)), the Court cannot conclude in good faith that there is a substantial grounds for a difference of opinion regarding this ruling after Mensing. Likewise, the Court disagrees with the plaintiffs assertion that certification would materially advance termination of this multidistrict litigation. Final judgments have been entered in several cases and the plaintiffs in a number of those cases have filed direct appeals with the Sixth Circuit. Nothing prevents the plaintiffs in those cases from seeking to expedite and/or to consolidate their appeals following entry of final judgments. While there would be some degree of cost savings associated with a certification order if combined with an order staying this litigation pending a final determination by the Sixth Circuit, the same argument can be advanced in most cases with any degree of complexity. This Court does not find such a procedure to be a preferable or acceptable option in light of the need to move this litigation forward as expeditiously as is practical. Accordingly, it is hereby ORDERED that the plaintiffs motion to amend this Court s Memorandum Opinion and Order Regarding Generic Defendants Motions to Dismiss in order to certify its ruling for interlocutory appeal [Record No. 1597] is DENIED. This 27th day of April, 2012. -4-

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.