United States District Court, D. Massachusetts
ANGELA KUTZER and BRYAN KUTZER, individually and as parents and natural guardians of G.K., a minor, Plaintiffs,
GLAXOSMITHKLINE, LLC, Defendant.
MEMORANDUM AND ORDER OF DISMISSAL
DENNIS SAYLOR IV, UNITED STATES DISTRICT JUDGE
a product liability action based on a claim that the use of
the drug Zofran (ondansetron) by a pregnant woman caused
birth defects in her child. The action was filed in North
Dakota and was transferred to this Court as part of a
multi-district litigation (“MDL”) proceeding,
In re Zofran, 1:15-md-2657-FDS.
Angela Kutzer and Bryan Kutzer are residents of North Dakota.
They are the parents of G.K., a minor. According to
plaintiffs, Angela Kutzer ingested Zofran during her
pregnancy with G.K. in 2006 and 2007. In October 2013, the
Kutzers learned that G.K. had a number of birth defects,
including having only one kidney and a congenital unilateral
absence of the vas deferens.
Kutzers allege that they were advised by their son's
treating physicians that his birth defects “were
possibly” caused by the ingestion of Zofran. (Pl. Mem.
at 2). They also contend that at the time they brought suit,
“[they] understood there were medical and scientific
studies investigating whether Zofran could cause the type of
birth defects G.K. sustained in utero.” (Id.)
They hired counsel and filed this lawsuit on July 27, 2015,
in the United States District Court for the District of North
Dakota. It was transferred to this Court as part of the MDL
process in August 2015.
have now moved for voluntary dismissal without prejudice to
the rights of G.K. to bring a claim in the future once he is
no longer a minor. According to plaintiffs, they “have
recently learned that medical science apparently has not yet
determined whether ingestion of Zofran during pregnancy
causes the type of birth defects suffered by G.K.”
opposes the motion, and seeks dismissal with prejudice and
the imposition of attorney's fees and costs. According to
GSK, plaintiffs have admitted that “there is no medical
science linking Zofran to [p]laintiffs' alleged injuries,
” and that plaintiffs are seeking “a free pass to
do it all again with the hope science will be manufactured to
fit their claims in the future.” (Def. Mem. at 1).
Federal Rule 41(a)(2), plaintiffs may voluntarily dismiss an
action “by court order, on terms that the court
considers proper.” Fed.R.Civ.P. 41(a)(2). The rule
permits plaintiffs to dismiss their case voluntarily, without
court approval, as long as “no other party will be
prejudiced.” Puerto Rico Mar. Shipping Auth. v.
Leith, 668 F.2d 46, 50 (1st Cir. 1981). Although the
“prospect of a subsequent lawsuit does not constitute .
. . prejudice, ” id., “[a] plaintiff
should not be permitted to force a defendant to incur
substantial costs in litigating an action, and then simply
dismiss his own case and compel the defendant to litigate a
wholly new proceeding.” Id. at 88. In making
the determination whether the defendant will be prejudiced,
the court should consider “‘the defendant's
effort and expense of preparation for trial, excessive delay
and lack of diligence on the part of the plaintiff in
prosecuting the action, insufficient explanation [of] the
need to take a dismissal, and the fact that a motion for
summary judgment has been filed by the defendant.'”
Doe v. Urohealth Sys., Inc., 216 F.3d 157, 160 (1st
Cir. 2000) (citation omitted).
principal question is whether GSK would suffer undue
prejudice if this matter were simply dismissed without
prejudice and without costs. GSK contends that plaintiffs
have “forced [it] to incur expenses and devoted
significant resources to this case” (Def. Mem. at 4);
that it has “incurred the burden and expense of fully
briefing and arguing a pending motion for summary
judgment” (Id.); and that plaintiffs
“stated intent to wait for future scientific support is
[an] insufficient” basis to dismiss the matter without
prejudice. (Id. at 5). The Court will address each
issue in turn.
GSK's contention that it has devoted
“significant” resources to this case appears to
be exaggerated at best. The docket for this individual case
has 102 entries, but the overwhelming majority of those
entries are for MDL orders and clerk's notes for
conferences that concern the MDL proceeding as a whole.
Indeed, other than filing an answer and opposing this motion,
there has been virtually no litigation activity in this case.
Among other things, no significant motion has been filed in
this case in the nearly four-year period since it has been
transferred to this court.
in this matter has proceeded as contemplated by the
Court's various MDL orders. No. depositions have been
taken. Plaintiffs have completed a Plaintiff Fact Sheet and
executed authorizations permitting GSK to collect medical and
other records. GSK has submitted an affidavit from counsel
stating that it has incurred $5, 051.12 in expenses
collecting medical, insurance, and educational records
concerning the plaintiffs. GSK has submitted no invoices or
documentation as to that amount, and has not provided a page
count or any other means of evaluating the reasonableness of
that charge. Plaintiffs contest the amount, but only in
general terms as being unduly inflated in light of costs
typically incurred in other cases in North Dakota.
also requested that it recover its attorney's fees
incurred in defending this case, but only in the form of a
generalized request. It has not submitted any affidavit as to
the amount of its attorney's fees or ...