Brandle et al v. McKesson Corporation et al

Filing 25

ORDER REQUESTING ADDITIONAL BRIEFING: All defendants are to file one joint brief no more than ten pages by noon on 3/25/2013. All plaintifs to file one joint brief no more than ten pages by noon on 3/25/2013. Signed by Judge William Alsup on 3/19/2013. (whasec, COURT STAFF) (Filed on 3/19/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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JAMES BRINDLE, REBECCA GREGG,
and DIANA GUTHRIE,
No. C 12-05970 WHA
Plaintiffs,

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v.
ORDER REQUESTING
ADDITIONAL BRIEFING

MCKESSON CORPORATION, et al.,
Defendants.
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In this pharmaceutical product liability action, plaintiffs move to remand back to state

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court. Defendants oppose on federal question and supplemental jurisdiction grounds. In PLIVA,

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Inc. v. Mensing, 131 S.Ct. 2567 (2011), the Supreme Court held that state failure-to-warn claims

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are preempted by federal law. While “it is now settled law that a case may not be removed to

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federal court on the basis of a federal defense, including the defense of pre-emption,”

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Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987) (citations omitted) (emphasis in original),

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there is an “independent corollary.” See id. (citations omitted). “On occasion, the Court has

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concluded that the pre-emptive force of a statute is so ‘extraordinary’ that it ‘converts an

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ordinary state common-law complaint into one stating a federal claim for purposes of the well-

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pleaded complaint rule.’” Id. (quoting Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65

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(1987)). Then, “[o]nce an area of state law has been completely pre-empted, any claim

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purportedly based on that pre-empted state law is considered, from its inception, a federal claim,

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and therefore arises under federal law.” Id. (quoting Franchise Tax Bd. of State of Cal. v.

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Constr. Laborers Vacation Trust for S. Cal, 463 U.S. 1, 24 (1983)).

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This order requests additional briefing on this issue. Specifically, the parties must
address the following three questions:
First, after Mensing, are plaintiffs’ state failure-to-warn claims here “completely
pre-empted” such that federal-question jurisdiction is proper?

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Second, in the event that federal question jurisdiction is proper, has Congress explicitly

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authorized a private right of action regarding the labeling of manufacturers of generic drugs or

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alternatively, has one been implied by law?
Third, what effect (if any) will the Supreme Court’s decision in Mutual Pharm. Co.,

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For the Northern District of California

United States District Court

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Inc. v. Bartlett, 133 S.Ct. 694 (2012), granting cert. to Bartlett v. Mutual Pharm. Co., Inc.,

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678 F.3d 30 (1st Cir. 2012), have on this action?

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All defendants are to file one joint brief of no more than ten pages by NOON ON

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MARCH 25, 2013. All plaintiffs are to file one joint brief of no more than ten pages by NOON

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ON MARCH 25, 2013.

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IT IS SO ORDERED.

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Dated: March 19, 2013.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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