Raskas v. Johnson & Johnson et al

Filing 36

MEMORANDUM OPINION: Accordingly, I conclude that remand is appropriate in all three cases, as the defendants have failed to meet their burden of establishing the requisite amount in controversy to support CAFA jurisdiction. Separate orders in accordance with this opinion will be issued in each case. Signed by District Judge Catherine D. Perry on March 26, 2013. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DANIEL RASKAS,

)
)
Plaintiff,
)
)
v.
)
No. 4:12 CV 2174 JCH
)
JOHNSON & JOHNSON, et al.,
)
)
Defendants.
)
____________________________________________________________
MARJIE LEVY,

)
)
Plaintiff,
)
)
v.
)
No. 4:12 CV 2266 HEA
)
PFIZER, INC.,
)
)
Defendant.
)
____________________________________________________________
LESLIE YOFFIE,
Plaintiff,
v.
BAYER HEALTHCARE, LLC,
Defendant.

)
)
)
)
)
)
)
)
)

No. 4:12 CV 2307 CDP

MEMORANDUM OPINION

Plaintiffs filed these cases in Missouri state court, all raising similar
allegations under the Missouri Merchandising Practices Act (MMPA). Defendants
removed all three cases, asserting that this court has original jurisdiction under 28
U.S.C. § 1332(d), as amended by the Class Action Fairness Act (CAFA).
Plaintiffs now seek remand of the cases to state court. Because I conclude that
defendants have not met their burden of demonstrating this court’s jurisdiction
under CAFA, I will grant plaintiffs’ motions to remand.
Background
Plaintiff Daniel Raskas filed his case alleging that defendants Johnson &
Johnson and McNeil-PPC, Inc. misled customers into throwing away unused
Tylenol Cold Multi-Symptom solid medication after the stated expiration date on
the package. He alleges that defendants’ actions violated the MMPA because they
have knowledge that the product actually remains safe and effective after the
labeled expiration date. Raskas cites instances on Tylenol’s website in which
defendant states, “Using products beyond their expiration dates is not
recommended,” and “As long as your Tylenol products have not passed their
expiration date, they are safe to use as directed.” Plaintiff Raskas seeks to certify a
class of “All Missouri citizens who purchased Tylenol Cold Multi-Symptom solid
medication for personal, family, or household purposes and later discarded and
-2-

replaced it.” This class, as well as the classes proposed by the other plaintiffs,
would span a period of five years prior to the filing of the complaint, in accordance
with the general five-year statute of limitations on Missouri claims created by
statute. Mo. Rev. Stat. § 516.120.
Plaintiff Marjie Levy filed a similar claim against defendant Pfizer, Inc.,
raising similar allegations that defendant misled customers into discarding Advil
after its stated expiration date. Levy cites a portion of the Advil website that states,
“It is not recommended to use the product past its expiration date as the
effectiveness of the ingredients is only assured until the date printed on the
package.” Pfizer also maintains a page on the Advil website called, “Medicine
Cabinet Cleanout: Keep It Safe,” urging consumers to discard unneeded, expired, or
recalled products. Plaintiff Levy seeks to certify a class of “All Missouri citizens
who purchased Advil for personal, family, or household purposes and later
discarded and replaced it.”
Plaintiff Leslie Yoffie filed her case against defendant Bayer Healthcare,
LLC, alleging that this defendant also misled customers into discarding Bayer
Aspirin after its stated expiration date. Yoffie quotes the following statement from
the Bayer Aspirin website: “It is not recommended to use any OTC product
beyond the labeled expiration date. Like all drugs, aspirin can deteriorate over
-3-

time and not be as effective once it is past expiration.” Plaintiff Yoffie seeks to
certify a class of “All Missouri citizens who purchased Bayer Aspirin for personal,
family, or household purposes and later discarded and replaced it.”
When these cases were filed in the Circuit Court for the City of St. Louis,
each defendant removed the case against it to this court. The jurisdictional basis
for removal was 28 U.S.C. § 1332(d), as amended by CAFA. Plaintiffs now seek
to remand the cases to state court, on the ground that defendants have failed to meet
their burden of establishing CAFA jurisdiction in this court.
Discussion
28 U.S.C. § 1441(a) permits a defendant, under certain circumstances, to
remove a civil action from a state court to a federal district court on the basis of
diversity of citizenship. It provides as follows:
[A]ny civil action brought in a State court of which the district courts
of the United States have original jurisdiction, may be removed by the
defendant or the defendants, to the district court of the United States
for the district and division embracing the place where such action is
pending.
28 U.S.C. § 1441(a). A defendant seeking to “invoke federal jurisdiction through
removal . . . bears the burden of proving that the jurisdictional threshold is
satisfied.” Bell v. Hershey Co., 557 F.3d 953, 956 (8th Cir. 2009). Removal
statutes are strictly construed, and any doubts about the propriety of removal are
-4-

resolved in favor of state court jurisdiction and remand. Wilkinson v. Shackelford,
478 F.3d 957, 963 (8th Cir. 2007).
The court’s jurisdiction in the instant case is premised on CAFA, which
confers federal court jurisdiction when the following three elements are satisfied:
(1) minimal diversity; (2) a proposed class containing at least 100 members; and (3)
an amount in controversy that is at least $5 million in the aggregate. 28 U.S.C. §
1332(d); Plubell v. Merck & Co., 434 F.3d 1070, 1071 (8th Cir. 2006). As with
other removal cases, “a party seeking to remove under CAFA must establish the
amount in controversy by a preponderance of the evidence.” Bell, 557 F.3d at 958.
As the Supreme Court stated last week, my task here is to determine whether the
amount in controversy is met “by adding up the value of the claim of each person
who falls within the definition of [plaintiffs’] proposed class and determine whether
the resulting sum exceeds $5 million.” Standard Fire Ins. Co. v. Knowles, No.
11-1450, 2013 WL 1104735, at *3 (U.S. Mar. 19, 2013). This jurisdictional issue
“is not whether the damages are greater than the requisite amount, but whether a
fact finder might legally conclude that they are . . . .” Kopp v. Kopp, 280 F.3d 883,
885 (8th Cir. 2002). “Once the removing party has established by a preponderance
of the evidence that the jurisdictional amount is satisfied, remand is only

-5-

appropriate if the plaintiff can establish to a legal certainty that the claim is for less
than the requisite amount.” Bell, 557 F.3d at 956.
In these cases, the plaintiffs concede that there is minimal diversity.
Although they do not concede that there are at least 100 members in the proposed
class, their briefs do not touch on this topic, and they do not appear to seriously
dispute this requirement. Rather, the issue of federal jurisdiction in these cases
centers on the amount in controversy.
Defendants, as the parties bearing the burden of proving the amount in
controversy by a preponderance of the evidence, provide various types of sales
evidence in an attempt to establish the potential value of the medication that is in
controversy in this case. Specifically, defendants Johnson & Johnson and
McNeil-PPC, Inc. provided affidavits1 demonstrating that over the past five years,
sales of Tylenol Cold Multi-Symptom solid medications to direct purchasers in
Missouri included 571,624 packages at a retail cost of $3,336,977.2 Defendant

1

Plaintiffs argue that I should not consider the affidavits presented by defendants in these cases
because they constitute inadmissible hearsay evidence. Without determining the admissibility of
these affidavits, I will consider them in my analysis. Because I conclude that defendants have
not met their burden even when considering these affidavits, this issue does not affect my rulings
in this order.
2

Defendant’s original affidavit from Kirk Barton, a Senior Finance Director for McNeil-PPC,
Inc., showed higher sales figures because it included sales of both Tylenol Cold Multi-Symptom
and Tylenol Cold Head Congestion. Because I find that plaintiff’s complaint only raises
allegations concerning Tylenol Cold Multi-Symptom, the revised figure is more appropriate for
-6-

Pfizer, Inc. provided affidavits showing that total retail sales of Advil in Missouri
from January 2009 through October 2012 totaled $14,357,285; total sales to
wholesalers and distribution centers in Missouri from November 2007 through
October 2012 totaled $12,093,085; and retail sales to Missouri customers at
Wal-Mart alone from November 2007 through October 2012 totaled $6,408,795.3
Finally, defendant Bayer Healthcare submitted an affidavit showing retail sales in
Missouri of all Bayer Aspirin products from November 2007 to the present totaled
approximately $19,800,000.4 All defendants also argue that this court may
consider potential punitive damages, injunctive relief, and attorneys’ fees in
calculating the amount in controversy.
In response to these sales figures, plaintiffs argue that the retail value of the
medications is not an appropriate measurement of the amount in controversy.
Plaintiffs allege that the only purchases that are at issue are those made by

this analysis.
3

These affidavits were made by Zack Apkarian, a Senior Director of Global Analytics and
Business Insights at Pfizer, and Richard Rezek, a Director of Sales Strategy at Pfizer. The
original affidavits included sales figures for “base Advil,” which defendant defines as including
regular Advil, Advil Liqui-Gels, and Advil Migraine. However, as the only product at issue in
plaintiff’s complaint is regular Advil, the supplemental affidavits submitted by Pfizer are more
appropriate.
4

This affidavit was made by Richard Kloenne, a Senior Manager of Market Research for Bayer.
This affidavit included sales figures for all Bayer Aspirin products, and no additional affidavit
was submitted in response to plaintiff Yoffie’s allegations that her complaint relates only to
-7-

consumers who later discarded and replaced the medication after the expiration
date, not all purchases made in the state of Missouri. Further, plaintiffs allege that
only the value of the medication discarded is part of the damages claim, not the
entire value of the medication purchased. However, plaintiffs did concede at the
hearing that they are unaware of a proper mechanism for calculating potential
compensatory damages at this stage of the case.
As stated above, it is the defendants’ burden – as the removing parties – to
establish that the amount in controversy in each case exceeds $5 million by a
preponderance of the evidence. Defendants have provided extensive data of sales
of their respective products in question to citizens of Missouri. However,
defendants do not propose a logical formula for calculating the potential damages in
this case using only the total sales data provided. In fact, none of the defendants
presents such a formula or methodology for calculating the potential damages, but
rather asks the court to presume that the amount in controversy must satisfy the
jurisdictional threshold based on the high sales figures alone. This type of
speculation is not sufficient to satisfy the jurisdictional burden on defendants. As
explained in Ongstad v. Piper Jaffray & Co., 407 F. Supp. 2d 1085, 1092 (D.N.D.
2006), “[n]either party has provided the Court with a reliable method to determine,

“Genuine Bayer Aspirin.”
-8-

or even guesstimate,” the value of the medication in controversy in these cases.
Therefore, I agree with other courts that have considered this issue that because the
amount of damages is indeterminable at this stage of the proceedings, defendants
have not met their burden of establishing subject matter jurisdiction over this case.
See, e.g., Amoche v. Guarantee Trust Life Ins. Co., 556 F.3d 41, 52-53 (1st Cir.
2009); DiTolla v. Doral Dental IPA of N.Y., LLC, 469 F.3d 271, 276 (2d Cir.
2006); Thompson v. Apple, Inc., No. 3:11CV3009, 2011 WL 2671312, at *2 (W.D.
Ark. July 8, 2011); Ongstad, 407 F. Supp. 2d at 1092.
As to defendants Johnson & Johnson and McNeil-PPC, Inc. specifically,
their affidavits show sales of Tylenol Cold Multi-Symptom totaling around $3.3
million. Although they argue, and I agree, that I may consider punitive damages,
injunctive relief, and attorneys’ fees in determining the total amount in controversy,
I conclude that they still failed to meet their burden. Because the defendants have
not provided a reliable figure for actual damages, I cannot place any reasonable
value on the remaining types of damages without merely guessing. Thus,
defendants Johnson & Johnson and McNeil-PPC, Inc. failed to meet their burden of
establishing CAFA jurisdiction.
Defendant Bayer also provided insufficient sales data to meet its burden.
Bayer provided sales data for the entire line of Bayer Aspirin products, although I
-9-

believe the complaint and arguments presented by the plaintiff make it clear that the
only drug at issue is Genuine Bayer Aspirin. Thus, in addition to the fact that
defendant Bayer does not provide an appropriate methodology for determining
damages from the sales figures it provided, Bayer’s sales figures are generally
unhelpful in showing the amount in controversy because they include products not
at issue here.
Defendant Pfizer admittedly comes the closest to reaching the jurisdictional
threshold, as its sales figures to Missouri residents are substantially higher than
those provided by the other two defendants. But damages here must be based on
the amount of product discarded and replaced. To extrapolate a damages figure
from these high sales numbers – on that basis alone – would be an exercise in
speculation. See, e.g., Ongstad, 407 F. Supp. 2d at 1092. Therefore, Pfizer also
failed to meet its burden in establishing CAFA jurisdiction over its case.
Defendants rely heavily on the Ninth Circuit’s opinion in Lewis v. Verizon
Commc’ns, Inc., 627 F.3d 395 (2010). In that case, the plaintiff sought to certify a
class and raised claims alleging that she was charged for services that she never
ordered. Id. at 397. To support removal, defendant submitted an affidavit
showing that the total billings for the services in question exceeded $5 million. Id.
at 397. Plaintiff contended that the figures provided by defendant were not
- 10 -

sufficient for removal because they included all charges for the services in question,
whether they were authorized or unauthorized. Id. at 398. The court concluded
that it had jurisdiction on the basis of defendant’s evidence because “[t]he Plaintiff
is seeking recovery from a pot that Defendant has shown could exceed $5 million
and the Plaintiff has neither acknowledged nor sought to establish that the class
recovery is potentially any less. The amount in controversy on this record
therefore comprises the total billings . . . .” Id. at 401.
The Lewis case is distinguishable from the facts in these cases. Here,
plaintiffs have explicitly stated that their damages are lower than the total amount of
retail sales for the medication. Rather, they only seek damages for the value of the
medication that was actually thrown away. Even though the complaints allege that
the plaintiffs incurred costs to replace the medication, they only seek the value for
replacing the portion that was actually discarded – not the entire package of
medication. Therefore, as plaintiff has explicitly stated that its damages are less
than the amounts proffered by defendants, the Ninth Circuit’s holding is not
persuasive in these cases.
Accordingly, I conclude that remand is appropriate in all three cases, as the
defendants have failed to meet their burden of establishing the requisite amount in

- 11 -

controversy to support CAFA jurisdiction. Separate orders in accordance with this
opinion will be issued in each case.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 26th day of March, 2013.

- 12 -