Pablo et al v. Bayer Corporation et al
Filing
29
ORDER denying 22 Motion to Remand. Signed by Chief Judge David R. Herndon on 5/17/2011. (dsw)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
------------------------------------------------------------
X
IN RE YASMIN AND YAZ (DROSPIRENONE)
MARKETING, SALES PRACTICES AND
RELEVANT PRODUCTS LIABILITY
LITIGATION
:
3:09-md-02100-DRH-PMF
:
MDL No. 2100
-----------------------------------------------------------This Document Relates to:
:
:
Judge David R. Herndon
ORDERDENYING REMAND
Sherry Pablo, et al., v. Bayer Corp., et al. Case
No. 3:10-cv-20418
AshtenLuayne Wolfe, et al., v. Bayer Corp., et
al. Case No. 3:10-cv-20403
ORDER
HERNDON, Chief Judge:
I. INTRODUCTION
Both of the above captioned cases are multi-plaintiff actions 1
originally brought in California State Court against various Bayer entities
(collectively, “Bayer”) (all non-California citizens), and McKesson Corporation
(“McKesson”) (a citizen of California and Delaware). Bayer removed both actions
to federal district court in California alleging that McKesson, the sole non-diverse
defendant, was fraudulently joined and that several of the plaintiffs are
1
Pablo, et al., v. Bayer Corp., et al., No. 3:10-cv-20418-DRH-PMF “Pablo” names
seven plaintiffs; Wolfe, et al., v. Bayer Corp., et al., No. 3:10-cv-20403 “Wolfe”
names nineteen plaintiffs.
1
improperly joined. Thereafter, the actions were transferred to this Multidistrict
Litigation (“MDL”) by the United States Judicial Panel on Multidistrict Litigation.
II. BACKGROUND
The gravamen of plaintiffs’ claims is that the Bayer Defendants made
false representations and concealed material facts concerning the safety and
efficacy of Yaz, Yasmin, and/or Ocella. The virtually identical complaints assert
product liability claims sounding in negligence, strict liability, breach of express
and implied warranties, and fraud/misrepresentation as well claims alleging
violations of California’s consumer protection laws (Pablo Doc. 1 pp. 48-59 ¶¶ 90153; Wolfe Doc. 1 pp. 42-54 ¶¶ 90-153). In both actions, all of the claims are
directed generically against all of the Defendants.
McKesson is a wholesale distributor of prescription medications that
purchases pharmaceuticals for sale to retail pharmacies.
Plaintiffs allege that
McKesson is a distributor of Yaz, Yasmin, and Ocella. Plaintiffs, however, do not
allege that McKesson distributed or supplied the pills that caused their alleged
injuries. In addition, neither complaint identifies any particular act of fraud or
negligence by McKesson, any particular representation by McKesson, or any other
actionable conduct on the part of McKesson that could be the basis for a claim of
negligence, fraud, or breach of express warranty.
The Plaintiffs have no connection with one another — each received
medication prescribed by different doctors, dispensed by different pharmacies, at
2
different times, and in different locations.The complaints do not identify the
plaintiffs’ states of citizenship Instead, the complaints merely state that the
plaintiffs are “residents of the United States” (Pablo Doc. 1 p. 32 ¶ 1; Wolfe Doc. 1
p. 27 ¶ 1). In their motions to remand, the plaintiffs assert that five of the seven
plaintiffs in Pablo 2and eight of the nineteen plaintiffs in Wolfe 3are “residents” of
California (hereinafter “California plaintiffs”) and that this Court lacks diversity
jurisdiction because McKesson is a citizen of California.
Residency is, of course, different than citizenship.
It is evident,
however, that plaintiffs intended to state that these plaintiffs are citizens of
California. After all, the California citizenship of these plaintiffs is the sole basis
for the assertion that diversity of citizenship does not exist. Therefore, the Court
will treat the assertion with regard to the “residency” of the California plaintiffs as
an assertion of California citizenship. 4
2
In their motion to remand, the plaintiffs in Pablo assert that five of the seven
Pablo plaintiffs are California citizens (Pablo Doc. 22-1 p. 3 n.3; Doc. 22-2 ¶ 2)
(stating that plaintiffs Pablo, Garcia, Hall, Valencia, and Cross are California
citizens). Plaintiffs make no assertion with regard to the remaining two plaintiffs.
3
As to the citizenship of the nineteen plaintiffs in Wolfe, plaintiffs aver that eight
of the plaintiffs are “residents” of California (Wolfe Doc. 19-2 ¶ 2) (averring that
plaintiffs Wolfe, Russo, Soda-Pond, Williams, Gharebaghi, Bolden, Johnson, and
Zucco are residents of California). Plaintiffs make no assertion with regard to the
citizenship of the remaining eleven Plaintiffs.
4
Bayer requested leave to conduct limited jurisdictional discovery to ascertain
and/or confirm the citizenship of each plaintiff and to evaluate whether McKesson
was fraudulently joined as a defendant as to her claims (Pablo Doc. 1 ¶¶ 24-26;
Wolfe Doc. 1 ¶¶ 27-29).For reasons discussed herein, the Court concludes that
additional discovery is unnecessary.
3
Plaintiffs do not assert that there is a jurisdictional issue with regard
to any of the plaintiffs and the Bayer entities.
Plaintiffs, however, have not
provided any information with regard to the citizenship of the non-California
plaintiffs. 5The failure to address the non-California plaintiffs’ citizenship or to
assert that there is any jurisdictional issue with regard to the Bayer entities,
indicates that none of the plaintiffs is a citizen of the same state as the Bayer
entities. In addition, given the severely inadequate jurisdictional allegation in the
complaints (averring that plaintiffs are “residents of the United States”), it is
evident that plaintiffs have an interest in destroying diversity. Considering the
above, the Court presumesthat none of the plaintiffs is a citizen of the same state
as any of the Bayer defendants. 6
III. ANALYSIS
A.
Necessity of Alleging that McKesson Supplied the Subject Drugs
5
Bayer states that it has been able to ascertain the citizenship of some but not all
of the non-California plaintiffs. With regard to the non-California plaintiffs in
Pablo,Bayer contends (and plaintiffs do not refute) that plaintiff Foret is a citizen
of Louisiana (Pablo Doc. 1 p. 15 ¶ 2; Pablo Doc. 25 p. 3 n.6). Plaintiff Howard’s
state of citizenship is unknown (Pablo Doc. 25 p. 3 n.6). As to the plaintiffs in
Wolfe,Bayer contends that plaintiff Baumy is a citizen of Louisiana; plaintiff
Gronholz is a citizen of Minnesota, plaintiff Mack is a citizen of Texas, and
plaintiff Repp is a citizen of Ohio (Wolfe Doc. 1 p. 19 ¶ 2; Wolfe Doc. 24 p. 3 n.6).
6
The Court notes that a jurisdictional issue in this respect does not have any
bearing on whether McKesson has been fraudulently joined. It may, however,
affect the presence of complete diversity. Accordingly, in denying remand, the
Court has also instructed the plaintiffs to file a notice with the Court, within seven
days of the entry of this order, stating each plaintiff’s state of citizenship. If any
plaintiff is a citizen of the same state as one of the Bayer defendants, the Court
will reconsider the issue of complete diversity at that time.
4
The Court has resolved numerous remand motions in similarly
situated member actions in this MDL (i.e. actions involving one or more California
citizens and McKesson, as the sole non-diverse defendant, that were originally
brought in a California state court, removed to a California district court, and
transferred to this Multidistrict Litigation (AMDL@). In twelve of those actions, the
Court concluded that McKesson had been fraudulently joined because the
plaintiff(s) failed to allege that McKesson supplied the subject drugs. See In re
Yasmin & YAZ (Drospirenone) Mktg., Sales Practices & Relevant Prods.
Liab.Litig., No. 3:09-md-02100-DRH-PMF, 2010 WL 3937414 (S.D. Ill. Oct. 4,
2010) (denying plaintiffs’ motions to remand in 11 cases originally filed in
California state courts); Jankins v. Bayer Corp., No. 3:10-cv-20095-DRH-PMF,
MDL No. 2100, 2010 WL 1963202 (S.D. Ill. May 15, 2010) (denying motion
toremand); Jankins v. Bayer Corp., No. 3:10-cv-20095-DRH-PMF, MDL No.
2100, 2010 WL2402926 (S.D. Ill. June 15, 2010) (denying reconsideration of
order denying remand).
In
Jankins,the
Court
found
that
although
a
pharmaceutical
distributor may be held liable under California law, the plaintiff’s inadequate
allegations as to McKesson established that McKesson had been fraudulently
joined and denied remandJankins, 2010 WL 1963202, at *3-*4. The Court
explained that causation would be a requisite element of any claim directed
against McKesson and that, to sufficiently allege causation, the plaintiff must
assert McKesson supplied the pills that caused her alleged injuries.
5
Id. at
*4.Because the plaintiff in Jankinsfailed to plead that McKesson supplied the
subject drugs, the Court concluded it had no choice but to find McKesson had
been fraudulently joined. Id. In June 2010, the Court considered and denied
plaintiff’s motion to reconsider the order denying remand. As the Court explained
in its order denying plaintiff=s motion to reconsider:
[T]o sufficiently allege a claim against McKesson, Plaintiff must allege
that McKesson was an entity within the chain of distribution B put
another way, Plaintiff must allege that McKesson supplied the subject
matter drugs to the Plaintiff…Plaintiff=s Complaint fails to do this.
The Complaint merely alleges that McKesson was a distributor of the
subject matter drugs...Alleging that McKesson was a distributor of
the subject matter drugs is not the equivalent of alleging that
McKesson was the distributor that supplied the drugs that allegedly
caused Plaintiff=s injuries. Absent such an allegation, there can be
no causal connection between McKesson and Plaintiff=s alleged
injuries and the Court must conclude that Plaintiff has not
sufficiently pled a claim against McKesson.
Jankins, v. 2010 WL 2402926 at *3.
The Court also concluded that plaintiff=s boilerplate allegations as to
ADefendants@ did not sufficiently plead a claim against McKesson. Throughout the
Complaint, the plaintiff made allegations against ADefendants@ generally (grouping
McKesson with the Bayer entities), rather than directing allegations against
McKesson specifically. For example:
The Defendants were in the business of researching, designing,
developing,
licensing,
compounding,
testing,
producing,
manufacturing, assembling, processing, packaging, inspecting,
labeling, warranting, marketing, promoting, advertising, distributing,
selling, and/or introducing into interstate commerce either directly or
indirectly through third parties or related entities, the [subject matter
drugs].
6
As the Court explained in its order on plaintiff=s motion for reconsideration, Athe
only part of this generic allegation that could possibly relate to McKesson is the
assertion as to the >distributing, selling, and/or introducing into interstate
commerce= of the subject matter drugs.@Id. at *3-*4.The Court concluded that this
type of generic allegation is not sufficient. Id.
The Court came to the same conclusion when it considered eleven
remand motions in October 2010.
See In re Yasmin & YAZ (Drospirenone)
Mktg., Sales Practices & Relevant Prods. Liab.Litig., No. 3:09-md-02100-DRHPMF, 2010 WL 3937414 (S.D. Ill. Oct. 4, 2010).
These actions were multi-
plaintiff actions which included one or more California plaintiffs and a mixture of
plaintiffs from a myriad of states across the country. The complaints in these
actions, like the complaint in Jankins, did not allege that McKesson supplied the
subject drugs.
Instead, the complaints merely alleged that McKesson was “a”
distributor of the subject drugs.
The Court explained that, regardless of which state’s substantive law
governed
and
regardless
of
the
theory
of
recovery,establishingMcKesson
manufactured, supplied, sold, distributed or was in some way responsible for the
allegedly injurious product was a threshold requirement for imposing liability (i.e.
establishing a causal link).
Id. at *6-*7.Accordingly, absent an allegation that
McKesson was in some way responsible for the pills that caused the plaintiffs’
alleged injuries, the Court had no choice but to find (as it did in Jankins) that
McKesson had been fraudulently joined. Id. at *6-*9.
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B.
Sufficiency of Plaintiffs’ Complaints
In the instant case, plaintiffs merely allege that McKesson isa
distributor of Yaz, Yasmin, and Ocella in the State of California. (Pablo Doc. 1 p.
36 ¶ 22; Wolfe Doc. 1 p. 30 ¶ 22) (averring that McKesson “wasengaged in the
business
of
compounding,
distributing,
testing,
researching,
producing,
designing,
manufacturing,
developing,
assembling,
licensing,
processing,
packaging, inspecting, labeling, selling and/or warranting [Yaz, Yasmin, and
Ocella] in the State of California”);(Pablo Doc. 1 p. 37 ¶ 26; Wolfe Doc. 1 p. 31 ¶
26) (asserting that McKesson “packaged, distributed, supplied, sold, placed into
the stream of commerce, labeled, described, marketed, advertised, promoted and
purported to warn or to inform users regarding the risks pertaining to and
assuaged concerns about the pharmaceutical Yasmin and YAZ”).
These allegations do not sufficiently allege that McKesson supplied
the pills that were ingested by the plaintiffs.
For the reasons discussed
herein,alleging that McKesson is a distributor is not the same as alleging that
McKesson is the distributor that supplied the pills ingested by the plaintiffs. 7The
remaining allegations in plaintiffs’ complaints are directed against “Defendants”
generally.
As the Court explained above, such general allegations are not
sufficient.
7
The Court also notes that the allegation that McKesson distributed Yaz, Yasmin,
and Ocella in California is particularly unhelpful with regard to the non-California
plaintiffs.
8
Absent an allegation that McKesson supplied the subject drugs, there
is no reasonable possibility that a state court would find that the Complaints, in
their present condition, state a cause of action against McKesson. Accordingly,
the Court finds that McKesson has been fraudulently joined and denies remand.
IV. CONCLUSION
In a product action, under any substantive law, a plaintiff must
establish a causal link between the defendant and the alleged harm. Thus, to
plead a sufficient cause of action against McKesson plaintiffs must allege that
McKesson distributed, supplied, or was in some way responsible for the drugs the
plaintiffs ingested. The plaintiffs in the above captioned actions have completely
failed to allege causation as to McKesson.
Accordingly, there is no reasonable possibility that a California state
court would find that the complaints in the above captioned actions state a valid
claim against McKesson. Absent an allegation that McKesson supplied the subject
drugs, the Court has no choice but to find that McKesson has been fraudulently
joined. Therefore, the Court ORDERS as follows:
The motions to remand in the above captioned cases are DENIED.
FURTHER, the Court ORDERS the plaintiffs to file a notice with this
Court within seven days of the entry of this order stating each plaintiff’s state of
citizenship.
If, after reviewing plaintiffs’ notice with regard to citizenship, the
Court finds that complete diversity is lacking as between the plaintiffs and the
9
Bayer defendants (the only properly joined defendants), it will reconsider the
jurisdictional issue at that time.
SO ORDERED.
David R. Herndon
2011.05.17
08:42:35 -05'00'
Chief Judge
United States District Court
Date: May 17, 2011
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