Marsh v. Genetech Inc. et al

Filing 26

OPINION and ORDER; Defendants' Motion to Dismiss 13 is GRANTED to the extent it seeks dismissal under Rule 12(b)(6), DISMISSED as moot to the extent it seeks a transfer of venue to the Western District of Michigan, and DENIED in all other respects ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

VICKI MARSH,
Plaintiff,
CASE NO. 1:11-CV-688
v.
HON. ROBERT J. JONKER
GENENTECH, INC., et al.,
Defendants.
__________________________________/
OPINION AND ORDER
This is a products liability action against the developers, manufacturers and distributors of
Raptiva, a psoriasis medication ultimately withdrawn from the market.1 Defendants move to dismiss
under FED . RULE CIV . P. 12(b)(2) and 12(b)(6). (docket # 13). At issue is whether the Court may
exercise personal jurisdiction over Defendant Xoma and whether Defendants are entitled to
immunity under Michigan’s products liability statute. The Court has heard oral argument on the
motion, thoroughly reviewed the parties’ motion papers, and carefully considered the applicable law.
The matter is ready for decision.

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This is one of four cognate cases pending before the Court. The other cases are: Blair v.
Genentech, et al., No. 1:11-CV- 482; Estate of Eddie A. Muniz v. Genentech, et al., No.
1:11-CV-683; and Tiefenthal v. Genentech, et al., No. 1:11-CV-689. Other than the plaintiffs named
and limited facts unique to each plaintiff, the pleadings and motion papers in the cases are
substantively identical. The Court addresses each case by separate opinion, and resolves each case
the same way.

Factual and Procedural Background
Genentech and Xoma are both Delaware corporations with their principal places of business
in California. (Compl., docket # 1, ¶¶ 2, 4.) During the late 1990s and early 2000s, Defendant
Genentech, in collaboration with Defendant Xoma, researched and developed a drug for psoriasis
called Raptiva. (Id. at ¶¶ 2-4.) Defendants originally planned to limit Raptiva to a twelve week
course of treatment. (Id. at ¶ 52.) Defendants altered this plan after learning that “clinical trial data
suggested that patients who stopped taking Raptiva relapsed . . . [and would likely] need to remain
on the drug for long periods of time, if not continuously for the rest of their lives.” (Id. at ¶ 53.)
Defendants were aware of risks associated with long-term treatment with immuno-suppressant drugs
such as Raptiva, including an increased likelihood of “life-threatening[] infections, neurological
complications, lymphomas, malignancies, and possibly death.” (Id.) Defendants “with a paucity of
data support their claims, made a strategic business decision to promote and market Raptiva as safe
for ‘continuous treatment.’” (Id. at ¶ 54.) On September 9, 2003, the FDA Advisory Committee
recommended approval of Raptiva, although several members raised concerns about long-term and
interrupted use of the product. (Id. at ¶¶ 48, 50.) Plaintiff asserts that in seeking Advisory
Committee approval, Defendants “made multiple material misrepresentations and omissions to the
Dermatologic and Opthalmic Drugs Advisory Committee of the FDA, falsely and deceptively
reporting that Raptiva was safe for continuous usage.” (Id. at ¶ 55.) The FDA approved Raptiva on
October 23, 2003, and Raptiva went on the market beginning November 17, 2003. (Id. at ¶¶ 50-51.)
Plaintiff alleges that from October 2003 until Raptiva was withdrawn from the market in
2009, Defendants continued to make false and deceptive statements and to conceal the truth about
adverse events associated with Raptiva usage. (Id. at ¶ 64.) Evidence of adverse events associated
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with Raptiva mounted. (Id. at ¶ 71.) But Defendants “failed to timely and appropriately amend . . .
or otherwise update the product labeling, package insert, or to otherwise advise physicians, patients,
pharmacists, or other healthcare providers of the increasing number of adverse events reported.” (Id.
at ¶ 72.) Plaintiff alleges that for years Defendants actively implemented a marketing strategy
designed to conceal the risks of Raptiva. (Id. at ¶¶ 79-94.)
In October 2008, the FDA issued a boxed warning for Raptiva that highlighted the risk of
“life-threatening complications, bacterial and viral infections . . . [and] increased risk of cancer.”
(Id. at ¶ 74.) In February, 2009, the FDA issued a public health advisory regarding three deaths
associated with Raptiva. (Id. at ¶ 75.) The same month, Canada suspended sales of Raptiva, and
the European Union medical authorities advised physicians to stop prescribing Raptiva. (Id. at
¶¶ 76-77.) On April 7, 2009, Defendants began a phased withdrawal of Raptiva from the market due
to safety concerns, and on June 8, 2009, Raptiva was “removed from U.S. markets.” (Id. at ¶ 77.)
At the time it was removed from the market, Raptiva was associated with “nearly 100 reported
adverse events of deaths and 71 reported adverse events of malignancy or cancer, nearly half of
which were lymphoma-related with 14 lymphoma-related deaths.” (Id. at ¶ 78.)
Plaintiff Marsh, a Michigan citizen, took Raptiva from approximately April 2004 to
September 2004 for the treatment of psoriasis. (Id. at ¶ 99.) Her dermatologist prescribed Raptiva
for her during this time, and she received Raptiva treatments by injection at his office. (Id.)
Ms. Marsh experienced flu-like symptoms, headaches, tingling sensations, and loss of strength in
her extremities with her injections of Raptiva. (Id. at ¶ 100.) On or around May 29 and 30, 2004,
Ms. Mash experienced fever, heart palpitations and chills following a second injection of Raptiva.
(Id. at ¶¶ 101, 102.) She visited the emergency room at Metropolitan Hospital in Wyoming,
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Michigan, on or around May 29, 2004 and again the next day. (Id.) After her third Raptiva
injection, in September, 2004, Ms. Marsh returned to Metropolitan Hospital and diagnosed with viral
meningitis. (Id. at ¶ 103.) During the next two weeks, which Ms. Marsh spent in the hospital,
Ms. Marsh had a fever of 104, a collapsed lung, an inability to walk, and speech and hearing
problems. (Id. at ¶ 104.) Because of her illness, she experienced limited mobility for weeks, has
diminished hearing capacity, and lacks feeling and strength in her hands. (Id. at ¶ 105.) Ms. Marsh
missed eight weeks of work during her recovery. (Id.) Ms. Marsh alleges on information and belief
that her use of Raptiva directly caused her viral meningitis and related health issues. (Id. at ¶ 106.)
Ms. Marsh filed this product liability suit in federal court in the Eastern District of Michigan
on April 6, 2011 and an ex parte motion to transfer the case to the Western District on April 21, 2011
(docket ## 1, 6). Defendants moved to dismiss or transfer the case on May 4, 2011 (docket # 13),
asserting improper venue, lack of personal jurisdiction over Defendant Xoma, and failure to state
a claim. The Eastern District court granted Plaintiff’s motion and transferred the case on June 30,
2011 (docket # 20). Defendants’ motion to dismiss remains pending to the extent it seeks dismissal
of Xoma based on lack of personal jurisdiction and dismissal of the case for failure to state a claim.
Legal Standards and Analysis
A.

Personal Jurisdiction over Xoma
In analyzing personal jurisdiction in diversity actions, “federal courts must look to the law

of the forum state to determine the reach of the district court’s personal jurisdiction over parties,
subject to constitutional due process requirements.” Air Products and Controls, Inc. v. Safetech
Int’l, Inc., 503 F.3d 544, 550 (6th Cir. 2007) (citing Lanier v. Am. Bd. of Endodontics, 843 F.2d 901,
909 (6th Cir. 1988)). The Court follows a two-step process: “(1) first, the court must determine
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whether any of Michigan’s relevant long-arm statutes authorize the exercise of jurisdiction over
Defendants; and, if so, (2) the court must determine whether the exercise of that jurisdiction
comports with constitutional due process.” Id. The due process analysis involves a three-part
inquiry:
First, the defendant must purposely avail himself of the privilege of acting in the
forum state or causing a consequence in the forum state. Second, the cause of action
must arise from the defendant’s activities there. Finally, the acts of the defendant or
consequences caused by the defendant must have a substantial enough connection
with the forum state to make the exercise of jurisdiction over the defendant
reasonable.
Id. (quoting S. Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374, 381 (6th Cir. 1968).
In the context of a motion under FED . R. CIV . P. 12(b)(2), the plaintiff bears the burden of
establishing the existence of jurisdiction. Air Products, 503 F.3d at 549 (citing Serras v. First Tenn.
Bank. Nat’l Ass’n, 875 F.2d 1212, 1214 (6th Cir. 1989)). Where the district court relies solely on
written submissions and affidavits, rather than an evidentiary hearing or after limited discovery, the
burden on the plaintiff is “‘relatively slight.’” Id. (citing Am. Greetings Corp. v. Cohn, 839 F.2d
1164, 1169 (6th Cir. 1988)). “[T]he pleadings and affidavits submitted must be viewed in a light
most favorable to the plaintiff, and the district court should not weigh ‘the controverting assertions
of the party seeking dismissal.’” Id. (citing Theunissen v. Matthews, 935 F.2d 1454, 1459 (6th Cir.
1991)).
There is no dispute that the Court has personal jurisdiction over Genentech. Plaintiff asserts
that the Court also has personal jurisdiction over Xoma because Xoma and Genentech “conducted
national enterprises involving the research, manufacturing, and distribution of Raptiva, [and] [t]his
joint enterprise would necessarily require the continuous and systematic general business contacts

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with Michigan [to successfully distribute the drug in Michigan].” (Pl.’s Br. in Resp. to Mot. to
Dismiss, docket # 19, at 4.) Plaintiff also points to the existence of a contract between Genentech
and Xoma under which Genentech allegedly agrees to indemnify Xoma in any action against Xoma
connected with the joint enterprise. (Id. at 5.) Plaintiff does not describe any other contacts between
Xoma and the State of Michigan.
Under Michigan’s long arm statute, a court may exercise limited personal jurisdiction over
an individual for actions arising out of, among other things, “[t]he transaction of any business within
the state; . . . [t]he doing or causing an act to be done, or consequences to occur, in the state resulting
in an action for tort; . . . [or the] entering into a contract for services to be rendered or for materials
to be furnished in the state by the defendant.” MICH . COMP. L. §600.705(1),(2),(5). The record does
not clearly reveal how closely Xoma and Genentech worked together in the distribution of Raptiva
or how far Xoma’s role extended beyond research, development and testing of the drug. But viewing
the pleadings in the light most favorable to Plaintiff, it is reasonable to conclude that Xoma marketed
and sold Raptiva in Michigan, which satisfies (1) or (5) of the long arm statute, or that Xoma caused
consequences to occur in the state, in the form of injury to Plaintiff, which satisfies (2) of the longarm statute.
With the long-arm statute satisfied, the inquiry turns to whether exercising jurisdiction over
Xoma under the long-arm statute comports with due process. Again, viewing the pleadings in the
light most favorable to Plaintiff, it is reasonable to conclude that Xoma purposely availed itself of
the privilege of causing a consequence in Michigan by selling prescription medication for use in
Michigan. This satisfies the first prong of the due process inquiry. The cause of action would result
from the sale of the prescription medication in Michigan, satisfying the second prong. Finally, the
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consequences of Xoma’s action, the serious illness of a Michigan citizen, would have a substantial
connection with the State of Michigan, satisfying the final prong.
On this record, given Plaintiff’s relatively slight burden, the exercise of personal jurisdiction
over Xoma is appropriate. If, as the case develops, facts emerge that suggest that the exercise of
personal jurisdiction over Xoma is improper, the Court may revisit the question then.
B.

Product Liability
The parties do not dispute that Michigan substantive law governs this diversity action.

Michigan’s product liability statute concerning pharmaceuticals creates broad immunity for
pharmaceutical manufacturers. With two limited exceptions, the statute provides that
a product that is a drug is not defective or unreasonably dangerous, and the
manufacturer or seller is not liable, if the drug was approved for safety and efficacy
by the United States food and drug administration, and the drug and its labeling were
in compliance with the United States food and drug administration approval at the
time the drug left the control of the manufacturer or seller.
MICH . COMP . L. § 600.2946. This liability protection does not apply if the defendant
(a) [i]ntentionally withholds from or misrepresents to the United States food and
drug administration information concerning the drug that is required to be submitted
[to the FDA] . . . and the drug would not have been approved or the [FDA] would
have withdrawn approval if the information were accurately submitted. [or]
(b) [m]akes an illegal payment to an official or employee of the [FDA] for the
purpose of securing or maintaining approval of the drug.
Id.
Federal law preempts and limits these statutory exceptions. Garcia v. Wyeth-Ayerst
Laboratories, 385 F.3d 961, 965-66 (6th Cir. 2004) (citing Buckman Co. v. Pl’s Legal Comm., 531
U.S. 341, 350 (2001). In Buckman, the Supreme Court determined that “[s]tate law fraud-on-theFDA claims inevitably conflict with the FDA’s responsibility to police fraud consistently with the

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Agency’s judgment and objectives.” Buckman, 531 U.S. at 350. In Garcia, the Sixth Circuit found
that the same analysis applies to the exceptions in the Michigan statute. “‘Buckman teaches that state
tort remedies requiring proof of fraud committed against the FDA are foreclosed since federal law
preempts such claims.’” Garcia, 384 F.3d at 966 (quoting underlying district court decision, Garcia
v. Wyeth-Ayerst Labs., 265 F. Supp. 825 (E.D. Mich. 2003)). This does not mean that Buckman
preempts all applications of the exceptions in Michigan’s products liability statute. Id. “Buckman
prohibits a plaintiff from invoking the exceptions on the basis of state court findings of fraud on the
FDA . . . [because] [s]uch a state court proceeding would raise the same inter-branch-meddling
concerns that animated Buckman.” Id. (emphasis in original). Such concerns “do not arise when
the FDA itself determines that a fraud has been committed on the agency.” Id. (emphasis in
original). Accordingly, the exceptions in Michigan’s statute “are invalid as applied in some settings
(e.g., when a plaintiff asks a state court to find bribery or fraud on the FDA) but not in others (e.g.
claims based on federal findings of bribery or fraud on the FDA).” Id. For the exceptions to apply,
there must have been a federal determination of fraud on the agency. Id.
In a California Superior Court Raptiva suit applying Michigan law, a plaintiff unsuccessfully
urged the court to follow Desiano v. Warner-Lambert & Co., 467 F.3d 85 (2d Cir. 2006), which
found Michigan’s immunity statute not preempted by Buckman’s rationale. Best v. Genentech, Inc.,
Order dated September 15, 2010, No. RG1051891 (Superior Court of California, County of
Alameda). In Desiano, the court acknowledged the contrary holding in Garcia, asserted that Garcia
hinged on an analysis of federal preemption law not binding on the Second Circuit, and concluded
that federal law did not preempt the statute. An equally divided Supreme Court affirmed Desiano
in Warner-Lambert & Co. v. Kent, 552 U.S. 440, 441 (2008), without a written opinion. Because
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the Supreme Court decision was equally divided, it applies only between the parties and has no
precedential effect. Hertz v. Woodman, 218 U.S. 205, 213-14 (1910). In opting to follow Garcia
rather than Desiano, the California Superior Court emphasized the analysis in Taylor v. Smithkline
Beecham Corp., 468 Mich. 1, 658 N.W.2d 127 (2003). Taylor upheld the constitutionality of the
Michigan statute against claims that the statute impermissibly delegated the state’s power to the
federal government. Taylor, 468 Mich. at 13. Taylor found that the product liability statute does
not delegate power to the FDA, but rather uses FDA determinations as “factual conclusions of
independent significance” that function as measuring devices. Id. The California court found that
this rationale supported a reading of the Michigan statute consistent with Garcia. The California
court concluded that the Defendants had absolute immunity under the Michigan statute in the
absence of any FDA determination that Defendants had acted improperly or illegally.
There are no allegations of bribery in this case; therefore, only the first statutory exception
from immunity is in play here. There are no allegations that the FDA has found any wrongdoing on
the part of Defendants. Plaintiff appears to be arguing that Defendants failed to comply with the
FDA’s post-approval safety, surveillance and warning requirements. (Br. in Support of Mot. to
Dismiss, docket # 19, at 13.) But Plaintiff does not explain how this saves her case from Garcia’s
sweep. In an unpublished decision, the Sixth Circuit explicitly rejected a plaintiff’s claim that
Garcia did not apply to claims arising from post-approval fraud. In re Aredia and Zometa Products
Liability Litigation, 352 F. App’x 994, Nos. 08-5573, 08-5574, 08-5575, 2009 WL 4072074, * 1 (6th
Cir. 2009). In Aredia, the court found that it did not matter whether the alleged fraud occurred postrather than pre-approval. Id. “Per Garcia’s plain terms . . . [this] distinction[] is beside the point:
‘[S]tate tort remedies requiring proof of fraud committed against the FDA are foreclosed since
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federal law preempts such claims.’” Id. (quoting Garcia, 385 F.3d at 966.) To move beyond the
immunity for which the statute provides, Plaintiff would have to prove fraud against the FDA, and
she has alleged no federal finding of such fraud. Id. Therefore, Plaintiff’s claims are preempted, and
Defendants are entitled to the dismissal they seek under FED . R. CIV . P. 12(b)(6).
Conclusion
Because Michigan’s products liability statute immunizes Defendants from liability, the Court
dismisses the action for failure to state a claim.
ACCORDINGLY, IT IS ORDERED:
Defendants’ Motion to Dismiss (docket # 13) is GRANTED to the extent it seeks
dismissal under Rule 12(b)(6), DISMISSED as moot to the extent it seeks a transfer of venue to the
Western District of Michigan, and DENIED in all other respects.

Dated:

October 26, 2011

/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE

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