United States District Court, S.D. Illinois
IN RE DEPAKOTE E.R.G., a minor, by CHRISTINA RAQUEL, as parent and next friend of E.R.G., Plaintiffs,
ABBOTT LABORATORIES, INC., Defendant.
MEMORANDUM AND ORDER
J. ROSENSTENGEL United States District Judge.
in this mass action allege that they suffered serious birth
defects as a direct result of exposure to Depakote. The
exposure for each Plaintiff is alleged to have occurred
in utero after his or her biological mother ingested
Depakote during pregnancy. Plaintiffs contended that
Defendants failed to warn their biological mothers of
the real risk of birth defects, even though Defendants knew
or reasonably should have known of the true risks.
the mass action is comprised of six hundred and seventeen
individual Plaintiffs. The mass tort action was removed to
this Court under the Class Action Fairness Act
(“CAFA”), 28 U.S.C. § 1332(d)(11)(B)(i). On
April 17, 2012, Judge G. Patrick Murphy remanded the action
to state court for lack of subject matter jurisdiction, but
his Order was subsequently reversed by the Seventh Circuit.
(Case No. 12-CV-52, Docs. 29 & 32). Upon Judge
Murphy's retirement in December 2013, the action was
reassigned to Judge David R. Herndon (Case No. 12-CV-52, Doc.
192). On May 19, 2014, the action was reassigned to the
undersigned District Judge. See (Case No. 12-CV-52,
25, 2014, the Court selected the following three bellwether
cases for trial: D.W.K., Jr. and parents Mary and Daniel
Kaleta (12-cv-57); E.P. and C.P. and parents Roger and Mindy
Pyszkowski (12-cv-56); and J.F. and parent Michelle Leal
(13-cv-34) (See Doc. 304 in Lead Case No. 12-cv-52).
The Kaleta trial proceeded to a Defense verdict on
March 20, 2015. (Case No. 14-CV-847, Doc. 387). While
Plaintiff filed a Notice of Appeal, ultimately the
Kaleta Plaintiff declined to appeal the verdict.
26, 2015 the Court selected three additional cases, including
Raquel, to proceed to trial. Through a series of
unforeseeable circumstances, including the untimely
unavailability of two expert witnesses, the next case to
proceed to a jury verdict was the instant case. As a result,
no case in the Depakote mass action has yet cleared the
Rule 54(b) a district court “may direct may direct
entry of a final judgment as to one or more, but fewer than
all, claims or parties only if the court expressly determines
that there is no just reason for delay.” Fed.R.Civ.P.
54(b). see also Gelboim v. Bank of America Corp.,
135 S.Ct. 897, 902 (2015) (Rule 54(b) permits district courts
to authorize immediate appeal “[w]hen an action
presents more than one claim for relief… or when
multiple parties are involved, the court may direct entry of
a final judgment as to one or more, but fewer than all,
claims or parties if the court expressly determines that
there is no just reason for delay.”); In re MTBE
Products Liability Litigation, 2010 WL 1328249, at *4
(“the role of this trial as a bellwether for an entire
MDL makes this the type of ‘exceptional' case where
entry of final judgment pursuant to Rule 54(b) is
Court finds that there is no just reason to delay in entering
a judgment in this case. The claims of any one Plaintiff in
the mass action-even those Plaintiffs who brought their
claims in one unified complaint-are not dependent upon one
another to be resolved on the merits. While the Court previously
found certain cases sufficiently similar to warrant joint
trials, entering judgment on an individual Plaintiff's
claim would not trigger the type of “piecemeal
appeal” the Supreme Court cautioned against in
Sears, Roebuck, & Co. v. Mackey, 351 U.S. 427,
Raquel case represents the second original
bellwether to be tried in this mass tort action. As the
Plaintiff in Kaleta ultimately chose to forgo an
appeal, an appellate decision as to the issues that have
arisen in preparation for and during the trial is necessary
to advance the mass action litigation. See In re Methyl
Tertiary Butyl Ether (MTBE) Products Liability
Litigation, Nos. 00 MDL 1898, 04 CIV 3417 (SAS), 2010 WL
1328249, at *4 (S.D. N.Y. April 5, 2010). Further, this trial
took over two weeks to complete. Preparing and trying the
remaining six hundred and seventeen cases on this Court's
docket will likely take many more years. To allow for the
continued maturation of the mass action and to prevent an
injustice on all the parties, the Court finds that judgement
shall be entered under Rule 54(b).
Clerk is directed to file a copy of this Order and the
Judgment in 12-CV-55.
 In 2013, Defendant Abbott Laboratories
Inc. split off part of its business, including the rights to
Depakote, into a separate publicly traded company, Abbvie,
Inc. Accordingly, Plaintiffs filing claims after 2013 have
included both ...