McKinley v. Johnson & Johnson

Background

The Judicial Panel on Multidistrict Litigation considered a motion by Bayer Corporation, Bayer HealthCare Pharmaceuticals Inc., and Bayer HealthCare LLC to transfer the McKinley action to the District of Minnesota under 28 U.S.C. § 1407 for inclusion in multidistrict litigation No. 2642. The Janssen defendants supported transfer, while the plaintiff opposed it.

The plaintiff alleged that he used the fluoroquinolone antibiotics Levaquin and Cipro and consequently suffered, among other conditions, paresthesia and disabling pain. The opinion states that the plaintiff also alleged mitochondrial damage and a group of symptoms called Fluoroquinolone Associated Disability Syndrome. The opinion does not further define paresthesia, but the defendants and the multidistrict litigation’s master complaint described it as a tingling or burning sensation in the extremities caused by nerve damage and as a key symptom of peripheral neuropathy.

Arguments and Analysis

The panel had previously centralized cases alleging that fluoroquinolone antibiotics cause or substantially contribute to irreversible peripheral neuropathy and that defendants provided inadequate warnings about that risk. The panel identified common questions involving general causation, the biological mechanism of the alleged injury, background science, and regulatory issues.

The plaintiff argued that his injuries were numerous and varied and therefore differed from the narrower peripheral-neuropathy condition at issue in the multidistrict litigation. He identified 40 conditions, mainly involving mental health and sleep, musculoskeletal and cardiovascular injuries, and other body systems. The panel rejected that objection, explaining that additional unrelated injuries do not prevent transfer when an action raises common issues about peripheral neuropathy. The panel also noted that the multidistrict litigation’s pretrial proceedings had accommodated injuries in addition to peripheral neuropathy.

The panel considered the advanced stage of the multidistrict litigation. It found that the transferee court was still actively managing pretrial proceedings in non-settled cases, including substantive decisions on pretrial motions and compliance with discovery obligations. The panel concluded that continued management of additional cases was appropriate and that transfer would likely produce common discovery, motions, and other pretrial proceedings concerning peripheral neuropathy.

Disposition

The panel ordered that the McKinley action be transferred to the District of Minnesota and, with that court’s consent, assigned to the Honorable John R. Tunheim for coordinated or consolidated pretrial proceedings. The panel stated that the case could later be remanded to its original court under § 1407 if the transferee judge determined that continued inclusion no longer served the convenience of the parties and witnesses or the just and efficient conduct of the litigation.