Caouette et al v. Bristol-Myers Squibb Company et al
Filing
41
ORDER by Judge Edward M. Chen in case 3:12-cv-01820-EMC; granting (39) Defendant's Motion for Leave to File Sur-Reply; and requiring supplemental briefing (emclc1, COURT STAFF) (Filed on 6/26/2012)
1
2
3
4
5
UNITED STATES DISTRICT COURT
6
NORTHERN DISTRICT OF CALIFORNIA
7
8
JAMES CAOUETTE, et al.,
9
11
For the Northern District of California
United States District Court
10
Plaintiffs,
v.
BRISTOL-MYERS SQUIBB COMPANY, et
al.,
12
13
Defendants.
___________________________________/
14
No. C-12-1814 EMC
RELATED TO
No. C-12-1815 EMC
No. C-12-1816 EMC
No. C-12-1818 EMC
No. C-12-1819 EMC
No. C-12-1820 EMC
No. C-12-1821 EMC
No. C-12-1822 EMC
AND ALL RELATED ACTIONS.
15
ORDER GRANTING DEFENDANT’S
MOTION FOR LEAVE TO FILE SURREPLY; AND REQUIRING
SUPPLEMENTAL BRIEFING
16
17
___________________________________/
18
19
Previously, the Court held a hearing on the motions to remand in the eight related cases. Bristol-
20
Myers has now moved for leave to file an omnibus sur-reply. The Court hereby GRANTS Bristol-
21
Myers’s motion and further orders supplemental briefing from the parties as follows.
22
23
24
By July 3, 2012, Plaintiffs in the eight related cases shall file an omnibus supplemental brief
addressing the following issues:
1.
Do Plaintiffs contend (as articulated at the hearing on the motions to remand) and, if so,
25
based on what authority, that distributor liability in a strict products liability case is strictly “derivative”
26
of the manufacturer’s liability such that a distributor can do nothing to avoid liability along with the
27
manufacturer other than cessation of sales, particularly where the underlying theory is a failure to warn?
28
1
2.
Assuming arguendo that a distributor has an independent duty to warn in a strict products
App. 3d 168, 178 (1990) (noting that company, which “was in the business of renting skis and
4
bindings,” “had an independent duty to exercise reasonable care in supplying this equipment and was
5
itself subject to strict liability for failure to warn its customers of the dangerous propensities of articles
6
it rented”), (a) what should McKesson have done in the instant cases to satisfy that duty and (b) how
7
are those actions not inconsistent with or prohibited by federal law, including but not limited to 21
8
U.S.C. § 355 and 21 C.F.R. § 314.70(a)? Compare Pliva, Inc. v. Mensing, 131 S. Ct. 2567, 2576 (2011)
9
(deferring to the FDA’s position that a Dear Doctor letter qualifies as labeling; stating that “[a] Dear
10
Doctor letter [from a generic manufacturer] that contained substantial new warning information would
11
For the Northern District of California
liability case (where the underlying theory is a failure to warn), cf. Persons v. Salomon N. Am., 217 Cal.
3
United States District Court
2
not be consistent with the drug’s approved labeling”).
12
3.
What weight should the Court give the FDA’s comments, in conjunction with its
13
promulgation of certain labeling and advertising regulations in 1979, see 44 Fed. Reg. 37434, 37447
14
(June 26, 1979) (stating that “[t]he addition to labeling and advertising of additional warnings, as well
15
as contraindications, adverse reactions, and precautions regarding the drug, or the issuance of letters to
16
health care professionals (e.g., ‘Dear Doctor’ letters containing such information) is not prohibited by
17
these regulations”), particularly in light of the Supreme Court’s decision in Mensing?
18
19
20
By July 10, 2012, Bristol-Myers shall file in the eight related cases an omnibus supplemental
brief on the following issues:
1.
For those actions Plaintiffs claim McKesson could have taken to satisfy its duty to warn,
21
what specific federal statutes or regulations barred or made it impossible for McKesson from taking
22
those actions? The Court seeks more than a general reference to the FDCA’s labeling laws.
23
2.
What weight should the Court give the FDA’s comments, in conjunction with its
24
promulgation of certain labeling and advertising regulations in 1979, see 44 Fed. Reg. 37434, 37447
25
(June 26, 1979) (stating that “[t]he addition to labeling and advertising of additional warnings, as well
26
as contraindications, adverse reactions, and precautions regarding the drug, or the issuance of letters to
27
health care professionals (e.g., ‘Dear Doctor’ letters containing such information) is not prohibited by
28
these regulations”), particularly in light of the Supreme Court’s decision in Mensing?
2
1
2
Plaintiffs’ brief shall be no longer than twelve (12) pages; Bristol-Myers’s brief shall be no
longer than eight (8) pages.
3
4
IT IS SO ORDERED.
5
6
7
Dated: June 26, 2012
8
EDWARD M. CHEN
United States District Judge
9
11
For the Northern District of California
United States District Court
10
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?