Kinney et al v. Bristol-Myers Squib Company et al

Filing 32

ORDER Re Supplemental Briefing. Signed by Judge Edward M. Chen on 2/19/2013. (emcsec, COURT STAFF) (Filed on 2/19/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SANDRA L. KINNEY, et al.,

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For the Northern District of California

United States District Court

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Plaintiffs,
v.
BRISTOL-MYERS SQUIBB COMPANY, et
al.,

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Defendants.
___________________________________/

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No. C-12-4477 EMC
RELATED TO
No. C-12-4478 EMC
No. C-12-4615 EMC
No. C-12-4616 EMC
No. C-12-4617 EMC
No. C-12-4619 EMC
No. C-12-4633 EMC
No. C-12-4641 EMC
No. C-12-4642 EMC
No. C-12-4803 EMC

AND ALL RELATED ACTIONS.
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__________________________________/

ORDER RE SUPPLEMENTAL
BRIEFING

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As the parties have informed the Court, the Judicial Panel on Multidistrict Litigation

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(“MDL”) recently denied without prejudice transfer of the above-referenced cases. The Court thus

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has pending before it Plaintiffs’ motions to remand.

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The Court directs the Plaintiffs to file supplemental briefing. Defendants have taken the

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position that a distributor cannot issue additional warnings beyond those contained in the FDA-

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approved labeling or, under federal law, they will be subject to civil and/or criminal penalties for

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misbranding, In their supplemental brief, Plaintiffs should address why a distributor would not be

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liable for misbranding under federal law if it were to issue such additional warnings beyond those

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contained in the FDA-approved labeling. The Court notes that it previously asked for supplemental

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briefing on this very issue in the Caouette case, see Caouette v. Bristol-Myers Squibb Co., No. C-12-

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1814 EMC (Docket No. 41) (Order at 2) (asking “what should McKesson have done in the instant

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cases to satisfy [the] duty [to warn]” and “how are those actions not inconsistent with or prohibited

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by federal law”); however, the Caouette Plaintiffs did not directly respond, focusing instead on the

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argument that Mensing applies only in the generic drug context. See id. (Docket No. 44) (Pls.’

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Supp. Br. at 8). Plaintiffs in the cases at bar have similarly argued that Mensing is restricted to the

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generic drug context. See, e.g., Kinney v. Bristol-Myers Squibb Co., No. 12-4477 EMC (Docket No.

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18) (Reply at 10). Plaintiffs have yet to address the question (assuming the logic of Mensing’s

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impossibility analysis applies here) why it is not impossible for a distributor to provide additional

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warnings (as Plaintiffs contend is required by California law) and not contravene federal law.
Although Plaintiffs are represented by different counsel, the Court shall require Plaintiffs to

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For the Northern District of California

United States District Court

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coordinate and file a single supplemental brief. The supplemental brief shall be filed by February

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26, 2013.

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IT IS SO ORDERED.

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Dated: February 19, 2013

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_________________________
EDWARD M. CHEN
United States District Judge

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