Dubois et al v. Bayer Corporation et al

Filing 20

ORDER granting 15 Motion to Remand. Signed by Chief Judge David R. Herndon on 7/12/2011. (dsw)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
EAST ST. LOUIS DIVISION
-----------------------------------------------------------X
IN RE YASMIN AND YAZ (DROSPIRENONE)
MARKETING, SALES PRACTICES AND
PRODUCTS LIABILITY LITIGATION
-----------------------------------------------------------This Document Relates to:

:

3:09-md-02100-DRH-PMF

:

MDL No. 2100

:
:

Craig Wygant, et al., v. Bayer Corp., et al.
Case No. 3:10-cv-20439

Judge David R. Herndon
ORDER GRANTING MOTIONS TO
REMAND

Carly Dubois, et al., v. Bayer Corp., et al.
Case No. 3:10-cv-20508
ORDER
HERNDON, Chief Judge:
This matter is before the Court on the above captioned plaintiffs’
motions to remand to state court. For the reasons discussed below the Court
GRANTS the motions to remand.
The plaintiffs in the above captioned cases filed suit in California
state court against Bayer Corporation, Bayer HealthCare Pharmaceuticals Inc.,
Bayer HealthCare LLC (collectively, “Bayer”), and McKesson Corporation
(“McKesson”), among others. 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.
Bayer timely removed each action to the Northern District of
California alleging that complete diversity of citizenship exists, and no properly

joined and served defendant was a citizen of the State of California. Specifically,
Bayer argued that the only non-diverse defendant, McKesson, had been
fraudulently joined because the complaints failed to allege that McKesson
supplied the actual YAZ, Yasmin, or Ocella pills that the plaintiffs purportedly
ingested – an allegation essential to establishing that McKesson proximately
caused the plaintiffs’ alleged injuries (3:10-cv-20439 Doc. 1 ¶¶ 25-31; 3:10-cv20508 Doc. 1 ¶¶ 25-31). 1Thereafter, each action was transferred to these
Multidistrict Litigation Proceedings (3:10-cv-20439 Doc. 17; 3:10-cv-20508 Doc.
12).
The plaintiffs in each action filed a motion to remand arguing that
their allegations as to McKesson were sufficient. 2 In the alternative, the plaintiffs
sought leave to amend their complaint to allege that McKesson supplied the
subject drugs. Id.The Court granted leave to amend on May 26, 2011 (3:10-cv20439 Doc. 25; 3:10-cv-20508 Doc. 18).
On June 24, 2011, the plaintiffs filed amended complaints alleging
that McKesson supplied the drugs that each plaintiff allegedly ingested (3:10-cv20439 Doc. 26 ¶ 22; 3:10-cv-20508 Doc. 19 ¶ 22).

1

In light of the allegations in

This Court has previously concluded that various plaintiffs’ failure to plead that
McKesson supplied the pills that the plaintiffs ingested was fatal to the plaintiffs’
claims against McKesson. See e.g., Jankins v. Bayer Corp., 2010 WL 1963202
(S.D. Ill. May 14, 2010) (Herndon, C.J.).
2
The plaintiffs in Dubois filed their motion to remand after the action was
transferred to this MDL (3:10-cv-20508 Doc. 15). The plaintiffs in Wygantfiled
their motion to remand in the transferor district court and the motion was
pending upon transfer to this MDL (3:10-cv-20439 Doc. 20).

plaintiffs’ amended complaints, the Court finds that McKesson has not been
fraudulently joined.
The Court therefore ORDERS as follows:
Craig Wygant, et al., v. Bayer Corp., et al. Case No. 3:10-cv-20439
x

Plaintiffs’ motion to remand to state court is GRANTED.

x

The Clerk is instructed to REMAND this case back to the Superior
Court of the State of California, County of San Francisco, pursuant to
28 U.S.C. § 1447(c).

x

The Court will not award attorneys’ fees and costs associated with
Plaintiff’s Motion to Remand.

Carly Dubois, et al., v. Bayer Corp., et al. Case No. 3:10-cv-20508
x

Plaintiffs’ motion to remand to state court is GRANTED.

x

The Clerk is instructed to REMAND this case back to the Superior
Court of the State of California, County of San Francisco, pursuant to
28 U.S.C. § 1447(c).

x

The Court will not award attorneys’ fees and costs associated with
Plaintiff’s Motion to Remand.

SO ORDERED.

David R. Herndon
2011.07.12
07:39:13 -05'00'
Chief Judge
United States District Court

Date: July 12, 2011