Rosewolf v. Merck & Co., Inc.

Background

The court considered motions to sever filed by Merck & Co., Inc., Merck Sharp & Dohme Corp., Organon & Co., and Organon, LLC, and cross-motions to consolidate filed by Joshua Rosewolf, Veronica Lewis, Shauna Gibson, and Cam Yuen. The court had treated four cases as related: Rosewolf v. Merck & Co., Inc., Starr v. Merck & Co., Inc., Skinner v. Merck & Co., Inc., and Gibson v. Merck & Co., Inc.

The plaintiffs alleged that the defendants manufactured and sold Singulair and held patent rights in montelukast, its active ingredient, until August 3, 2012. They alleged that the defendants knew Singulair could cause neuropsychiatric injuries but failed to provide adequate warnings and failed to maintain accurate and adequate warning labels. The plaintiffs asserted strict-liability and negligence claims based on failure to warn, negligent misrepresentation, and breach of express and implied warranties. The opinion also states that the plaintiffs conceded that their design-defect and manufacturing-defect claims should be dismissed.

Rosewolf alleged that he used brand-name Singulair from 2005 to 2008 and suffered depression, hostility, suicidality, and tics. Lewis alleged that she used branded and/or generic Singulair from 2012 to 2020 and suffered depression. Gibson alleged that she used Singulair and/or its generic equivalent from 2015 to 2021 and suffered depression. Yuen alleged that he used Singulair and/or its generic equivalent from 2020 to 2021 and suffered depression, anxiety, obsessive-compulsive disorder, and tremors.

Severance

Federal Rule of Civil Procedure 20 permits multiple plaintiffs to bring one action when their claims arise from the same transaction or occurrence and share at least one legal or factual question. The court may sever improperly joined parties under Rule 21 if doing so would not prejudice a substantial right, and it may order separate trials under Rule 20(b) to avoid prejudice.

The defendants argued that the plaintiffs’ claims did not arise from the same transaction because the plaintiffs were prescribed Singulair or its generic equivalent at different times and suffered different injuries. The court relied on the individualized factual circumstances, including differences in the medication used, the timing and duration of use, the changing warning labels, the alleged injuries, the absence of allegations that the plaintiffs shared a physician, and the lack of allegations about their medical histories or reasons for receiving the prescriptions.

The court found the circumstances similar to a prior drug case in which joinder was considered improper because the plaintiffs’ claims were based on distinct factual scenarios. Although the plaintiffs’ main theory involved allegedly inadequate warnings, the court concluded that the factual differences outweighed the commonality for purposes of joining the plaintiffs in the same action. The plaintiffs did not argue that severance would prejudice a substantial right.

The court therefore granted the defendants’ motions to sever. It dismissed Lewis’s claims without prejudice to refiling and dismissed Yuen’s claims without prejudice to refiling. If Lewis or Yuen refiled in the Northern District of California, the court directed them to file a notice of related case, after which the matters would be related to Rosewolf.

Consolidation

Under Federal Rule of Civil Procedure 42(a), a court may consolidate actions that involve a common legal or factual question. The court must balance judicial convenience against possible delay, confusion, and prejudice, and the party seeking consolidation bears the burden of showing that consolidation would promote convenience and judicial economy.

The court acknowledged that the defendants’ separate motions to dismiss presented overlapping legal issues, including personal jurisdiction. But it also found that issues unique to individual plaintiffs would arise. The court noted that the plaintiffs appeared to disclaim interest in a consolidated trial. It concluded that procedures short of consolidation could manage the cases, including requiring the parties to meet and confer about overlapping discovery and whether discovery produced in one case could be used in the others. The court also stated that it would support having rulings on common legal issues apply across the cases.

The court therefore denied the plaintiffs’ cross-motion for consolidation.

Disposition and Scope

The order granted the motions to sever and denied the cross-motion for consolidation. It did not decide the merits of the plaintiffs’ failure-to-warn, negligence, misrepresentation, warranty, or other claims. The court stated that it would address the pending motions to dismiss in separate orders and schedule case-management conferences as appropriate after resolving those motions.