Bowen et al v. McKesson Corporation et al

Filing 87

MEMORANDUM OPINION & ORDER: Plaintiffs' motions to remand [MDL Record Nos. 2608, 2612, 2613, 2659, 2663, 2664, 2665] are DENIED. Signed by Judge Danny C. Reeves on 2/27/2015.Associated Cases: 2:11-md-02226-DCR et al.(CBD)cc: COR, JPML

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
(at Covington)
IN RE: DARVOCET, DARVON, AND
PROPOXYPHENE PRODUCTS
LIABILITY LITIGATION
Bowen, et al., v. McKesson Corp., et al.,
Mitchell, et al., v. McKesson Corp., et al.,
Baltazar, et al., v. McKesson Corp., et al.,
Dadoush, et al., v. McKesson Corp., et al.,
Gomez, et al., v. McKesson Corp., et al.,
Saunders, et al., v. McKesson Corp., et al.,
Jasmin, et al., v. McKesson Corp., et al.,

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Master File No. 2: 11-md-2226-DCR
MDL Docket No. 2226
Civil Action No. 2: 13-058-DCR
Civil Action No. 2: 13-060-DCR
Civil Action No. 2: 13-061-DCR
Civil Action No. 2: 13-073-DCR
Civil Action No. 2: 13-074-DCR
Civil Action No. 2: 13-075-DCR
Civil Action No. 2: 13-076-DCR

MEMORANDUM OPINION
AND ORDER

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Consistent with the opinion of the United States Court of Appeals for the Sixth
Circuit (“Sixth Circuit”) [MDL Record No. 3008] vacating this Court’s July 25, 2013 Order
and remanding the above-captioned cases, this matter is pending for consideration of the
Plaintiffs’ motions to remand. [MDL Record Nos. 2608, 2612, 2613, 2659, 2663, 2664,
2665] This Court’s July 25, 2013 Order granted the Plaintiffs’ motions, thereby remanding
these cases to the California Superior Courts from which they were removed.

The

Defendants appealed to the Sixth Circuit. That court held the appeal in abeyance pending an
en banc decision by the United States Court of Appeals for the Ninth Circuit (“Ninth
Circuit”) regarding whether a petition for coordination under § 404 of the California Code of
Civil Procedure was a proposal for a joint trial, rendering the cases a “mass action” as
defined in the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d)(11)(B)(i).
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The Ninth Circuit has now answered that question in the affirmative, finding that “[a]sking
for coordination or consolidation ‘for all purposes’ or ‘through trial’ to address common
issues of law or fact is a proposal to try the cases jointly and creates federal jurisdiction
under CAFA’s mass action provision.” Corber v. Xanodyne Pharm., Inc., 771 F.3d 1218,
1225 (9th Cir. 2014) (en banc). Further briefing of the Plaintiffs’ motions is not necessary.
Having reconsidered the Plaintiffs’ motions in light of Corber, the Court finds that it has
jurisdiction over these cases under CAFA and the Plaintiffs’ motions to remand will be
denied.
A mass action is removable if the citizenship of any plaintiff is different from the
citizenship of any defendant and the total matter in controversy exceeds $5,000,000. 28
U.S.C. § 1332(d)(2). Under CAFA, a “mass action” is defined as “any civil action . . . in
which monetary relief claims of 100 or more persons are proposed to be tried jointly on the
ground that the plaintiffs’ claims involve common questions of law or fact.” 28 U.S.C.
§ 1332(d)(11)(B)(i).

Any civil action in which “the claims have been consolidated or

coordinated solely for pretrial proceedings” is excluded from this definition. 28 U.S.C.
§ 1332(d)(11)(B)(ii)(IV).
The Plaintiffs’ alleged proposal for a joint trial occurred on October 23, 2012, when
they filed a Petition for Coordination of their related California state-court cases with the
California Judicial Council. They sought to coordinate these seven products-liability actions
alleging the use of propoxyphene products, “as well as other such cases that may be filed
before [the] Petition is decided.” [MDL Record No. 2710-2, p. 8; MDL Record No. 2710-5]
Under California law, coordination of civil actions is appropriate

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if one judge hearing all of the actions for all purposes in a selected site or sites
will promote the ends of justice taking into account whether the common
question of fact or law is predominating and significant to the litigation; the
convenience of parties, witnesses, and counsel; the relative development of the
actions and the work product of counsel; the efficient utilization of judicial
facilities and manpower; the calendar of the courts; the disadvantages of
duplicative and inconsistent rulings, orders, or judgments; and, the likelihood
of settlement of the actions without further litigation should coordination be
denied.
Cal. Civ. Proc. Code § 404.1. The Plaintiffs’ Petition was granted on May 16, 2013. [MDL
Record No. 2710-8] Here, the question of jurisdiction turns on whether the Plaintiffs’ claims
were “proposed to be tried jointly” when they asked that the cases be consolidated under
state law.
The Ninth Circuit was faced with the same question in Corber. That court looked to
the language contained in the petitions for coordination to assess whether the plaintiffs
proposed that the cases be tried jointly. Corber, 771 F.3d at 1223 (“[W]hen we assess
whether there has been a proposal for joint trial, we hold plaintiffs responsible for what they
have said and done.”). The Corber court rejected application of a bright-line rule requiring
that “a petition to evoke CAFA must expressly request a ‘joint trial’ to be a proposal to try
the cases jointly. Id. at 1225. Application of this rule would “ignore the real substance of
Plaintiffs’ petitions.” Id. The Ninth Circuit looked at the totality of the circumstances, rather
than the explicit language, to examine whether the matter qualified as a removable mass
action under CAFA. Id. at 1220.
Instead, the court looked to the language the plaintiffs used to request coordination.
First, the plaintiffs requested coordination “for all purposes,” which “must include the
purposes of trial.” Id. at 1223. Second, the specific reasons relied upon by plaintiffs in their
petition supported the conclusion that a joint trial was requested. Id. A joint trial was the
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only means by which the plaintiffs’ cited bases, such as “the danger of inconsistent
judgments and conflicting determinations of liability” could be accomplished. Corber, 771
F.3d at 1223.
The Plaintiffs’ argument that they were simply parroting the requirements for
consolidation under the language of § 404.1 of the California Code of Civil Procedure was
rejected. Id. at 1224. In rejecting this argument, the Corber court noted that the plaintiffs
listed several bases in support of the petition which were not included in the § 404.1 factors,
“requested more than pre-trial coordination,” and “repeatedly” stated that the factors
catalogued in § 404.1 “all supported coordination, including the fact that ‘one judge hearing
all of the actions for all purposes in a selected site or sites will promote the ends of justice.’”
Id. The court stopped short of suggesting that all petitions for coordination under § 404 are
proposals to try cases jointly for purposes of CAFA, noting that a petition expressly limiting
coordination to pre-trial matters would not fall within the definition of a mass action. Id.; see
Aiona v. Bayer Healthcare Pharm., Inc., No. C-14-4745, 2015 WL 293496 (N.D. Calif.
January 20, 2015) (finding that petition which explicitly and repeatedly stated that
coordination was sought “for pre-pretrial purposes only” did not fall within the ambit of
CAFA).
The Ninth Circuit’s reasoning in Corber is persuasive, and this Court adopts it here.
The Plaintiffs’ petition and supporting documentation use language almost identical to that
considered by the Ninth Circuit in Corber. The Plaintiffs clearly and repeatedly indicated
that coordination was sought “for all purposes,” which would include joint trial. [MDL
Record Nos. 2710-2, 2710-5]

The Petition itself references coordination to facilitate

“hearing all of the actions for all purposes.” [MDL Record No. 2710-5] Further, there is no
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language in the petition or supporting documentation that would exclude coordination for
trial purposes, or limit coordination for pre-trial purposes only.

The Plaintiffs also

specifically reference a “coordination trial judge,” indicating that the plaintiffs intended a
joint trial, even if not explicitly stated. [MDL Record No. 2710-2, p. 9]
Additionally, as in Corber, the Plaintiffs relied on certain factors which indicated that
a joint trial was proposed as part of the coordination of cases. The Plaintiffs indicated that
“absent coordination of these actions by a single judge, there is a significant likelihood of . . .
possible inconsistent judicial rulings on legal issues” and that “the parties may suffer from
disadvantages cause by duplicative and inconsistent . . . judgments.” [MDL Record No.
2710-2, pp. 7, 9, 11] Further, the Plaintiffs indicated that common issues to be addressed
after coordination include “issues pertaining to liability, allocation of fault and contribution,
as well as the same wrongful conduct of defendants.” [MDL Record No. 2710-2, p. 11]
Such issues would be raised, most likely, during trial. Thus, the specific factors referenced
by the Plaintiffs further support the conclusion that they were proposing a joint trial.
In summary, by asking for coordination of the cases “for all purposes” and relying on
specific reasoning suggesting a joint trial, the Plaintiffs proposed a joint trial which created
federal jurisdiction under CAFA’s mass action provision. 28 U.S.C. § 1332(d)(11)(B)(i).
Accordingly, it is
ORDERED that the Plaintiffs’ motions to remand [MDL Record Nos. 2608, 2612,
2613, 2659, 2663, 2664, 2665] are DENIED.

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This 27th day of February, 2015.

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