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IN THE UNITED STATES DISTRICT COURT 

MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

 

WILLIAM HAZEL, * 

 * 

 Plaintiffs, * 

 * 

v. * Civil Action No.: 2:06cv678-WKW 

 * 

MERCK & CO., INC., * 

 * 

 Defendant. * 

 

MOTION BY DEFENDANT MERCK & CO., INC. TO STAY ALL PROCEEDINGS 

PENDING TRANSFER DECISION BY THE JUDICIAL

PANEL ON MULTIDISTRICT LITIGATION

INTRODUCTION

Defendant Merck & Co., Inc. (“Merck”) moves this Court to stay all proceedings in 

this action pending its likely transfer to In re Vioxx Mktg., Sales Practices & Prods. Liab. 

Litig.. MDL No. 1657, the multidistrict litigation (“MDL”) proceeding that has been 

established in the Eastern District of Louisiana to coordinate all federal product liability 

cases involving Vioxx® (the “Vioxx product liability actions”). In re Vioxx Prods. Liab. 

Litig., 360 F. Supp. 2d 1352 (J.P.M.L. 2005). 

Merck will shortly provide notice to the Judicial Panel on Multidistrict Litigation 

(the “MDL Panel” or “Panel”) pursuant to Rule 7.5 of the Rules of Procedure of the 

Judicial Panel on Multidistrict Litigation (“R.P.J.P.M.L.”) of the pendency of this “tagalong” action. Merck expects a conditional transfer order to be issued shortly thereafter. 

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BACKGROUND

A. MDL-1657

On February 16, 2005, the Judicial Panel on Multidistrict Litigation (the “MDL 

Panel” or “Panel”) issued a transfer order establishing MDL Proceeding No. 1657, titled 

In re VIOXX Products Liability Litigation. The Transfer Order directed that the 148 

cases that were the subject of the original motions for coordinated treatment pursuant to 

28 U.S.C. § 1407 be transferred for coordinated pretrial proceedings in the U.S. District 

Court for the Eastern District of Louisiana, before the Honorable Eldon E. Fallon. In Re 

Vioxx Products Liability Litigation, 360 F. Supp. 2d at 1352.1 In the Transfer Order, the 

Panel held: 

On the basis of the papers filed and hearing session held, the Panel finds 

that the actions in this litigation involve common questions of fact, and that 

centralization under Section 1407 in the Eastern District of Louisiana will 

serve the convenience of the parties and witnesses and promote the just 

and efficient conduct of the litigation. All actions focus on the alleged 

increased health risks (including heart attack and/or stroke) when taking 

Vioxx, an anti-inflammatory drug, and whether Merck knew of these 

increased risks and failed to disclose them to the medical community and 

consumers. Centralization under Section 1407 is necessary in order to 

eliminate duplicative discovery, avoid inconsistent pretrial rulings, and 

conserve the resources of the parties, their counsel and the judiciary. 

Id. at 1353-54. The MDL Panel also held that the “nearly 300 potentially related actions 

[then] pending in multiple federal districts . . . will be treated as potential tag-along 

actions.” Id. at 1353 n.1. 

There is currently a process in place for effecting the transfer to Judge Fallon’s 

court of related Vioxx product liability actions quickly and efficiently. Merck’s counsel, in 

 

1

 In its December 6, 2005 Order Denying Motion for Reconsideration, the Panel changed the caption of MDL1657 to In re Vioxx Marketing, Sales Practices and Products Liability Litigation in order to more accurately 

reflect the scope of this litigation. (See Order, Docket No. 1657 (J.P.M.L. Dec. 6, 2005).) 

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a written submission known as a “tag-along letter,” notifies the Panel twice a week of 

newly-filed related actions and developments in actions still under Panel consideration. 

The Panel has been issuing conditional transfer orders transferring actions to Judge 

Fallon’s court based on the information contained in these tag-along letters. Since the 

first Transfer Order was issued on February 16, 2005, more than 5,200 cases have 

been transferred to or filed directly in the MDL proceedings 

B. The Instant Action

On or about August 2, 2006, Plaintiff commenced this action against Merck by 

filing this Complaint. On or about _______________, Merck was served with a copy of 

Plaintiff’s Complaint. There is no dispute that this case involves the same factual 

inquiries that the Panel notes were present in the Vioxx cases generally, thereby 

warranting coordinated pre-trial proceedings in the Eastern District of Louisiana. 

Specifically, it is clear from the face of the Complaint that this case, like the other Vioxx 

cases, focuses on the alleged increased health risks (including heart attack and stroke) 

when taking Vioxx, an anti-inflammatory drug, and whether Merck knew of these 

increased risks and failed to disclose them to the medical community and consumers. 

For example, Plaintiff alleges that “Defendant was negligent in its actions, 

misrepresentations, and omissions toward plaintiff in the following ways: a) By 

designing, manufacturing, processing, advertising, marketing, testing, labeling, 

assembling, packaging, distributing and/or selling the drug which they knew, or through 

the exercise of reasonable diligence should have known were [sic] dangerous or 

unreasonably dangerous and carried with them [sic] significant side effects.” (Compl., ¶ 

11). 

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Merck will shortly provide notice to the MDL Panel of this related action. Merck 

expects a conditional transfer order to be issued by the MDL Panel in this action within 

the next few weeks. Once the conditional transfer order is issued, Plaintiff has fifteen 

days to object to transfer in accordance with R.P.J.P.M.L. 7.4(c).2

 Assuming that 

Plaintiff does not object to the transfer order within this fifteen-day period, the transfer 

order will be filed in Judge Fallon’s court shortly thereafter and jurisdiction over the case 

will be transferred to him. 

ARGUMENT

The Court should exercise its discretion to stay all further proceedings in this 

action pending its likely transfer to MDL-1657. The authority of a federal court to stay 

proceedings is well-established. Landis v. North American Co., 299 U.S. 248, 254 

(1936) (“[T]he power to stay proceedings is incidental to the power inherent in every 

court to control the disposition of the causes on its docket with economy of time and 

 

2

 In the event Plaintiff chooses to object to transfer to MDL-1657, there is a separate procedure for filing 

objections to the transfer with the MDL Panel. The issue of whether the case should be transferred would be set 

for the next available Panel hearing session. Given the overlapping factual issues this case appears to have with 

those already in the MDL proceedings, any opposition would almost certainly be futile. In fact, to date, the 

Panel has rejected each and every motion to vacate a conditional transfer order that it has taken under 

consideration. The Panel, in three separate Transfer Orders since the inception of MDL-1657, has considered 

and rejected a wide range of arguments made by plaintiffs who opposed Conditional Transfer Orders No. 1, 2, 

5, 6, 8 and 9 and rejected them all. (See June 20, 2005 Transfer Order (attached hereto as Exhibit A)) (rejecting 

the arguments of plaintiffs who opposed Conditional Transfer Orders No. 1 and 2); (August 11, 2005 Transfer 

Order (attached hereto as Exhibit B)) (rejecting the arguments of plaintiffs who opposed Conditional Transfer 

Orders No. 5, 6, and 9); (September 13, 2005 Transfer Order (attached hereto as Exhibit C)) (rejecting the 

argument of plaintiff who opposed Conditional Transfer Order No. 8); (October 21, 2005 Transfer Order 

(attached hereto as Exhibit D) (rejecting the arguments of plaintiffs who opposed Conditional Transfer Orders 

11, 14, 15, 17 and 19); December 2, 2005 Transfer Order (attached hereto as Exhibit E) (rejecting the arguments 

of plaintiffs who opposed Conditional Transfer Orders No. 19, 20, 21, 22, and 23); February 14, 2006 Transfer 

Order (attached hereto as Exhibit F) (rejecting the arguments of plaintiffs who opposed Conditional Transfer 

Order Nos. 24, 25, 26, 28, 29, and 30); April 11, 2006 Transfer Order (attached hereto as Exhibit G) (rejecting 

the arguments of plaintiffs who opposed Conditional Transfer Order Nos. 32, 33, 34, 36 and 37); April 13, 2006 

Transfer Order (attached hereto as Exhibit H) (rejecting the arguments of plaintiffs who opposed Conditional 

Transfer Order Nos. 31 and 35). 

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effort for itself, for counsel, and for litigants.”); accord Denny v. Merck & Co., Inc., No. 

04 Civ. 0526, slip op. (S.D. Tex. Dec. 6, 2004) (“The power to stay all proceedings is 

well established.”). Courts analyze three factors when determining whether to issue a 

stay of proceedings pending the MDL Panel’s decision on transfer, namely: (1) the 

judicial resources that would be saved by avoiding duplicative litigation if the cases are 

in fact coordinated; (2) hardship and inequity to the moving party if the action is not 

stayed; and (3) potential prejudice to the non-moving party. Rivers v. The Walt Disney 

Co., 980 F. Supp. 1358, 1360 (C.D. Cal. 1997). 

Federal courts throughout the country with pending Vioxx product liability actions 

have analyzed the above-referenced factors in determining whether a stay of 

proceedings pending the MDL Panel’s decision as to transfer is appropriate. To date, 

an overwhelming majority of these courts have issued stays. See, e.g., North v. Merck 

& Co., Inc., No. 05 Civ. 6475, 2005 WL 2921638, at *2 (W.D.N.Y. Nov. 4, 2005) 

(“Entering a stay will . . . preserve judicial resources, one of the fundamental goals of 

multidistrict litigation practice.”); Beal v. Merck & Co., Inc., No. 05 Civ. 1344, 2005 WL 

3279285, at *2 (W.D. Tenn. Dec. 1, 2005) (granting Merck’s stay holding that “having 

the . . . issues decided in one proceeding will promote judicial economy and conserve 

judicial resources”); Hatch v. Merck & Co., Inc., No. 05 Civ. 1252, 2005 WL 2436716, at 

*2 (W.D. Tenn. Oct. 3, 2005) (same); see also Euell v. Merck & Co., Inc., 05 Civ. 1497, 

2005 WL 2348487, at * 1 (E.D. Mo. Sept. 26, 2005) (“The Court finds Defendant 

Merck’s judicial economy argument persuasive and concludes that . . . Merck’s Motion 

will be granted.”); Falick v. Merck & Co., Inc., No. 04 Civ. 3006, (E.D. La. Jan. 3, 2005), 

slip op. at 2 (“Considering the multitude of cases currently stayed due to the pending 

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MDL coordination, the Court finds that staying proceedings will serve the interests of 

judicial economy.”); Gaffney v. Merck & Co., Inc,, No. 05 Civ. 1183, 2005 WL 1700772, 

at *1 (W.D. Tenn. July 19, 2005) (same); Walker v. Merck & Co., Inc., 05 Civ. 360, 2005 

WL 1565839, at *2 (S.D. Ill. June 22, 2005) (same). Judges in this district and state 

have granted stays in numerous other Vioxx cases. See, e.g., Cassel v. Merck & Co., 

Inc., No. 05-CV-626-D (S.D. Ala., November 17, 2005); Hadley v. Merck & Co., Inc., No. 

1:05-CV-469 (S.D. Ala., August 23, 2005); James v. Merck & Co., Inc., No. 3:05-CV366 (M.D. Ala., June 3, 2005); King v. Merck & Co., Inc., No. 2:05-CV-165 (M.D. Ala. 

April 26, 2005); Stevens v. Merck & Co., Inc., No. 2:05-CV-138 (M.D. Ala. February 26, 

2005).

I. JUDICIAL ECONOMY MANDATES A STAY.

Granting a stay of proceedings here will promote judicial economy. The purpose 

of multidistrict litigation is to coordinate the pretrial management of actions sharing 

common facts in a just and efficient manner. See 28 U.S.C. 1407(a). Where, as here, 

the MDL Panel has already coordinated Vioxx product liability actions before Judge 

Fallon in the Eastern District of Louisiana, there is no question that a stay of these 

proceedings will promote judicial economy. See Euell, 2005 WL 2348487, at * 1 (“This 

case involves the same factual inquiries that are present in the other hundreds of 

VIOXX cases . . . the Court . . . concludes that judicial economy weighs in favor of 

granting the requested stay.”); see also Mathern v. Wyeth, No. 04 Civ. 2116, 2004 WL 

1922028, at *1 (E.D. La. August 25, 2004); Knearem v. Bayer Corp., 02 Civ. 2096, 2002 

WL 1173551, at *1 (D. Kan. May 7, 2002). 

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It is well settled that a district court is best served not expending resources 

“familiarizing itself with the intricacies of an action that will be coordinated for pretrial 

management before a transferee judge.” Rivers, 980 F. Supp. at 1360 (C.D. Cal. 1997); 

see also Gorea v. Gillette Co., No. 05 Civ. 2425, 2005 WL 2373440, at * 1 (W.D. Tenn. 

Sept. 26, 2005) (“a stay is warranted in this case . . . the court would have to use judicial 

resources in making rulings . . . in a case over which it might ultimately lose 

jurisdiction.”). Granting a stay of this action pending its inevitable transfer to MDL-1657 

will conserve the resources of this court and prevent duplicative discovery and pretrial 

management efforts. See Board of Trustees of Teachers’ Retirement System v. 

Worldcom, Inc., 244 F. Supp. 2d 900, 905 (N.D. Ill. 2002) (“Having one court rather than 

three decide complex jurisdictional issues obviously saves judicial resources.”); see also

U.S. Bank, Nat’l Ass’n v. Royal Indem. Co., No. 02 Civ. 853, 2002 WL 31114069, at * 2 

(N.D. Tex. Sept. 23, 2002) (“[I]f the MDL motion is granted, all of the Court’s time, 

energy, and acquired knowledge regarding the action and its pretrial procedures will be 

wasted.”). The same efficiency considerations warrant a stay here. 

II. MERCK WILL BE PREJUDICED ABSENT A STAY. 

The prejudice to Merck absent a stay far outweighs any perceived or potential 

prejudice to Plaintiff if a stay is granted. See American Seafood, Inc. v. Magnolia 

Processing, Nos. 92 Civ. 1030, 92 Civ. 1086, 1992 WL 102762, at * 2 (E. D. Pa. May 7, 

1992) (“The duplicative motion practice and discovery proceedings demonstrate that . . . 

prejudice to the defendants weigh heavily in favor of a stay.”). There are currently over 

5,400 Vioxx actions being coordinated in MDL-1657. If individual district courts allowed 

cases to proceed in the short window between the time cases were filed in or removed 

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to individual federal district courts and they were transferred to Judge Fallon, Merck 

would face death by a thousand cuts. Plaintiffs would be free to pursue a strategy of 

aggressively litigating, and getting discovery in, hundreds of individual cases for the 

period of weeks it takes for cases that inarguably meet the §1407 transfer standard to 

be transferred to Judge Fallon’s court. Judge Fallon has established detailed protocols 

to manage the litigation through the disposition motion phase. Merck should not be 

forced to engage in unnecessary and duplicative discovery and motion practice. See 

Wilbanks v. Merck & Co., Inc., No. 05-Civ. 1241, 2005 WL 2234071, at * 1 (W.D. Tenn. 

Sept 13, 2005) (granting a stay holding that “in the absence of a stay, the risk to Merck 

of duplicative motions and discovery is significant.”); see also North, 2005 WL 2921638, 

at *2 (“[T]he risk of hardship to Merck of engaging in duplicative motion practice and 

discovery . . . outweighs any prejudice that could potentially inure to [plaintiff].”); Gorea, 

2005 WL 2372440, at * 1 (“[W]hereas without a stay [pending transfer to the MDL 

court], the burden on Gillette of having to . . . engage in limited discovery . . . would be 

significant.”).

The potential prejudice to Plaintiff if this action is stayed is non-existent. Plaintiff 

has expended few resources to date; this action is still in its infancy and discovery has 

not yet begun. Whatever limited discovery could take place in the next several weeks 

will be wholly subsumed and superseded by the discovery that will take place in the 

MDL. Thus, Plaintiff will not suffer prejudice as a result of a stay.

CONCLUSION

For the foregoing reasons, Merck respectfully requests that this Court grant its 

motion to stay all proceedings in this case pending transfer to the MDL proceeding that 

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has been established in the Eastern District of Louisiana. 

s/ Richard B. Garrett______________

Richard B. Garrett 

 Bar Number: (ASB-0782-A29R) 

Mike Brock 

Bar Number: (ASB-5280-B61R) 

F. Chadwick Morriss 

Bar Number: (ASB-8504-S75F) 

RUSHTON, STAKELY, JOHNSTON 

& GARRETT, P.A. 

Post Office box 270 

Montgomery, Alabama 36101-0270 

Telephone: 334/206-3100 

Fax: 334/263-4157 

 E-mail: rbg@rsjg.com

 rcb@rsjg.com

 fcm@rsjg.com 

 Attorneys for Defendants 

CERTIFICATE OF SERVICE

 I hereby certify that on August 24, 2006, I electronically filed the foregoing with 

the Clerk of the court using CM/ECF system which will send notification of such filing to 

the following: Ron M. Feder. 

 s/Richard B. Garrett 

 OF COUNSEL 

 

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