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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 SANDRA L. KINNEY, 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-12-4477 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. 15 16 __________________________________/ ORDER RE SUPPLEMENTAL BRIEFING 17 18 19 As the parties have informed the Court, the Judicial Panel on Multidistrict Litigation 20 (“MDL”) recently denied without prejudice transfer of the above-referenced cases. The Court thus 21 has pending before it Plaintiffs’ motions to remand. 22 The Court directs the Plaintiffs to file supplemental briefing. Defendants have taken the 23 position that a distributor cannot issue additional warnings beyond those contained in the FDA- 24 approved labeling or, under federal law, they will be subject to civil and/or criminal penalties for 25 misbranding, In their supplemental brief, Plaintiffs should address why a distributor would not be 26 liable for misbranding under federal law if it were to issue such additional warnings beyond those 27 contained in the FDA-approved labeling. The Court notes that it previously asked for supplemental 28 briefing on this very issue in the Caouette case, see Caouette v. Bristol-Myers Squibb Co., No. C-12- 1 1814 EMC (Docket No. 41) (Order at 2) (asking “what should McKesson have done in the instant 2 cases to satisfy [the] duty [to warn]” and “how are those actions not inconsistent with or prohibited 3 by federal law”); however, the Caouette Plaintiffs did not directly respond, focusing instead on the 4 argument that Mensing applies only in the generic drug context. See id. (Docket No. 44) (Pls.’ 5 Supp. Br. at 8). Plaintiffs in the cases at bar have similarly argued that Mensing is restricted to the 6 generic drug context. See, e.g., Kinney v. Bristol-Myers Squibb Co., No. 12-4477 EMC (Docket No. 7 18) (Reply at 10). Plaintiffs have yet to address the question (assuming the logic of Mensing’s 8 impossibility analysis applies here) why it is not impossible for a distributor to provide additional 9 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 11 For the Northern District of California United States District Court 10 coordinate and file a single supplemental brief. The supplemental brief shall be filed by February 12 26, 2013. 13 14 IT IS SO ORDERED. 15 16 Dated: February 19, 2013 17 _________________________ EDWARD M. CHEN United States District Judge 18 19 20 21 22 23 24 25 26 27 28 2

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