Harris v. Bristol-Myers Squibb Company et al

Filing 7

MEMORANDUM OPINION AND ORDER.....The claims in the above-captioned actions must be dismissed as preempted. The plaintiffs cannot escape Utts IIs preemption analysis by masking the basis for their claims. Fortner, 2017 WL 3193928, at *3. Even witho ut reference to the documents on which the amended complaint in Utts relied, the complaints simply do[] not provide sufficient factual content to support a plausible inference that there exists newly acquired information such that the defendants coul d unilaterally have changed the Eliquis label to include additional warnings. Id. Nor do plaintiffs provide any analysis with respect to the independent ground for dismissal of their actions: the adequacy of the labels under the relevant state law. Previous opinions already addressed four of the states laws implicated by the complaints at issue here, and the plaintiffs do not explain why those opinions were in error or how any of the other states laws would alter the outcome of an adequacy an alysis. Although the plaintiffs assert that the applicable law in each case differs from California law, the plaintiffs also assert in a chart attached in their memorandum that California law applies to one case. See 17md2754 (DLC), Dkt. No. 152-1, Appx. of Cases (17cv6582 (DLC)). Indeed, the plaintiffs do not even cite the statutes or case law that pertain to the adequacy of a labels warnings for any jurisdiction. In the absence of citation to any authority, it is unnecessary to address the ir argument further. Therefore, with the exception of the five cases filed by plaintiffs who are Louisiana residents, each of these actions is also dismissed on the ground that the Eliquis labels warnings regarding the risks at issue here were adequ ate as a matter of law. Finally, the plaintiffs do not explain a basis for a remand to the District of Delaware. Accordingly, it is hereby ORDERED that the motions to remand in the above-captioned cases are denied. IT IS FURTHER ORDERED that the above-captioned cases are dismissed with prejudice. IT IS FURTHER ORDERED that the Clerk of Court shall close the above-captioned cases. (Signed by Judge Denise L. Cote on 11/29/2017) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
IN RE ELIQUIS (APIXABAN) PRODUCTS
:
LIABILITY LITIGATION
:
:
This document relates to the following :
actions: 17cv8253; 17cv8270; 17cv8273; :
17cv8275; 17cv8289; 17cv8291;
:
17cv8555; 17cv8557; 17cv8562;
:
17cv8599; 17cv8614; 17cv8624;
:
17cv8626; 17cv8629; 17cv8661;
:
17cv8664; 17cv8672; 17cv8675;
:
17cv8679; 17cv8695; 17cv8696;
:
17cv8705; 17cv8711; 17cv8713.
:
:
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17md2754 (DLC)
MEMORANDUM OPINION
AND ORDER

APPERANCES:
For all plaintiffs:
Lisa Causey-Streete
Robert L. Salim
Salim-Beasley, LLC
1901 Texas Street
Natchitoches, LA 71457
For Bristol-Myers Squibb Company and Pfizer Inc.:
Loren H. Brown
Cara D. Edwards
Lucas P. Przymusinski
DLA Piper LLP (US)
1251 Avenue of the Americas, 45th Floor
New York, NY 10020
DENISE COTE, District Judge:
Two previous Opinions addressed Eliquis product liability
claims -- Utts v. Bristol-Myers Squibb Co. & Pfizer Inc.,
16cv5668 (DLC), 2016 WL 7429449 (S.D.N.Y. Dec. 23, 2016) (“Utts
I”), and Utts v. Bristol-Myers Squibb Co. & Pfizer Inc.,
16cv5668 (DLC), 2017 WL 1906875 (S.D.N.Y. May 8, 2017) (“Utts

II”) -- and explained the principles of preemption that govern
state law failure to warn and design defect claims against brand
name drug manufacturers.

The Utts Opinions further addressed

whether the Eliquis complaints at issue satisfied the pleading
standards of Rules 8(a) and 9(b), Fed. R. Civ. P.
On May 9, 2017, the Court issued a scheduling order
providing that “any future action transferred or reassigned to
this Court shall have fourteen days following arrival on this
Court’s docket to file an amended complaint and show cause in a
memorandum no longer than 20 pages why the amended complaint
should not be dismissed based on the analysis in the May 8 Utts
Opinion.”
On July 26, 2017, the Court issued its Opinion in Fortner.
See Fortner v. Bristol-Myers Squibb Co. & Pfizer, Inc.,
17cv1562, 2017 WL 3193928 (S.D.N.Y. July 26, 2017) (DLC)
(“Fortner”).

In Fortner, the Court dismissed with prejudice a

Tennessee plaintiff’s complaint, after she was given an
opportunity to amend her complaint, pursuant to the preemption
analyses in the Utts Opinions.

The complaint was also dismissed

on independent grounds because the warning in the Eliquis label
is adequate as a matter of Tennessee law.

Whereas the Utts II

analysis of warning adequacy applied California law, the Court
in Fortner found that Tennessee law “does not materially differ”
from California law with respect to the adequacy of drug
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warnings and thus “the analysis performed in Utts II to assess
the adequacy of the Eliquis label [was] equally applicable”.
Fortner, 2017 WL 3193928, at *4.
The Court has since dismissed multiple comaplints for the
reasons given in Fortner, holding that the plaintiffs’ failure
to warn and design defect claims are preempted.

The Court also

independently dismissed many of those cases finding that, under
the appropriate state law standard, the warnings in the Eliquis
label are adequate as a matter of law with respect to the risks
at issue in this litigation.

See Ray v. Bristol-Myers Squibb

Co. & Pfizer, Inc., 17cv1218 (DLC) (Kentucky); Bates v. BristolMyers Squibb Co. & Pfizer, Inc., 17cv1237 (DLC) (Illinois); Orr
v. Bristol-Myers Squibb Co. & Pfizer, Inc., 17cv1288 (DLC)
(Texas); Baranski

v. Bristol-Myers Squibb Co. & Pfizer, Inc.,

17cv1298 (DLC) (Pennsylvania); Segovia v. Bristol-Myers Squibb
Co. & Pfizer, Inc., 17cv1560 (DLC) (Hawaii); Gipson v. BristolMyers Squibb Co. & Pfizer, Inc., 17cv2063 (DLC) (Oklahoma).
Only in the case of Louisiana law did the Court decline to
resolve on a motion to dismiss whether the label’s warning was
adequate as a matter of law.

See Williams

v. Bristol-Myers

Squibb Co. & Pfizer, Inc., 17cv1286 (DLC) (holding that, even
without resolving the Louisiana law question, the Louisiana
plaintiffs’ claims were nevertheless preempted and therefore
dismissed with prejudice).
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The above-captioned cases arrived on this Court’s docket
between October 26 and November 9.
filed in Delaware Superior Court.
the District of Delaware.
this Court.

The cases were initially
They were promptly removed to

The cases were then transferred to

The plaintiffs filed timely show cause memoranda

arguing two principal points.
First, plaintiffs argue that the Utts analyses are
inapplicable because Utts II analyzed material not included by
reference in the pleadings currently before the Court.

Second,

plaintiffs assert that the applicable law in each case differs
substantially from California law, and thus the Utts analysis
with respect to the adequacy of the warnings in Eliquis’ labels
does not apply.1

The plaintiffs, without explanation, urge that

their cases not be dismissed but should instead be remanded to
the District of Delaware.

The plaintiffs’ arguments are

unavailing.
The claims in the above-captioned actions must be dismissed
as preempted.

The plaintiffs “cannot escape Utts II’s

preemption analysis by masking the basis” for their claims.
Fortner, 2017 WL 3193928, at *3.

Even without reference to the

The plaintiffs argue that fourteen different state laws are
implicated by the respective claims: Alabama, Arizona,
California, Idaho, Illinois, Kentucky, Louisiana, Missouri, New
Jersey, North Carolina, Ohio, Tennessee, Virginia, and West
Virginia.
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documents on which the amended complaint in Utts relied, the
complaints “simply do[] not provide sufficient factual content
to support a plausible inference that there exists newly
acquired information such that the defendants could unilaterally
have changed the Eliquis label to include additional warnings.”
Id.
Nor do plaintiffs provide any analysis with respect to the
independent ground for dismissal of their actions: the adequacy
of the labels under the relevant state law.

Previous opinions

already addressed four of the states’ laws implicated by the
complaints at issue here, and the plaintiffs do not explain why
those opinions were in error or how any of the other states’
laws would alter the outcome of an adequacy analysis.

Although

the plaintiffs assert that the applicable law in each case
differs from California law, the plaintiffs also assert in a
chart attached in their memorandum that California law applies
to one case.

See 17md2754 (DLC), Dkt. No. 152-1, Appx. of Cases

(17cv6582 (DLC)).

Indeed, the plaintiffs do not even cite the

statutes or case law that pertain to the adequacy of a label’s
warnings for any jurisdiction.

In the absence of citation to

any authority, it is unnecessary to address their argument
further.

Therefore, with the exception of the five cases filed

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by plaintiffs who are Louisiana residents2, each of these actions
is also dismissed on the ground that the Eliquis label’s
warnings regarding the risks at issue here were adequate as a
matter of law.
Finally, the plaintiffs do not explain a basis for a remand
to the District of Delaware.

Accordingly, it is hereby

ORDERED that the motions to remand in the above-captioned
cases are denied.
IT IS FURTHER ORDERED that the above-captioned cases are
dismissed with prejudice.
IT IS FURTHER ORDERED that the Clerk of Court shall close
the above-captioned cases.

Dated:

New York, New York
November 29, 2017
____________________________
DENISE COTE
United States District Judge

17cv8270 (DLC); 17cv8273 (DLC); 17cv8289 (DLC); 17cv8626 (DLC);
17cv8696 (DLC).
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