Johnston v. Bristol-Myers Squibb Company et al
Filing
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MEMORANDUM OPINION AND OPINION.....For the forgoing reasons, it is herebyORDERED that any claims against St. Marys Medical Center and Dignity Health Medical Center are severed from this action. The remaining defendants in this action are Bristol-Mey ers Squibb Co. and Pfizer, Inc. IT IS FURTHER ORDERED that the plaintiffs May 17 motion to remand this action is granted in part. The claims against St. Marys Medical Center and Dignity Health Medical Center are remanded to the Superior Court of Ca lifornia for the County of San Francisco. IT IS FURTHER ORDERED that claims asserted against defendants Bristol-Meyers Squibb Co. and Pfizer, Inc. are dismissed with prejudice. IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment for defendants Bristol-Meyers Squibb Company and Pfizer, Inc. and close the above-captioned case. (Signed by Judge Denise L. Cote on 6/14/2018) Filed In Associated Cases: 1:17-md-02754-DLC, 1:18-cv-04057-DLC(gr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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IN RE ELIQUIS (APIXABAN) PRODUCTS
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LIABILITY LITIGATION
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This document relates to the following :
action: 18cv4057.
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17md2754 (DLC)
MEMORANDUM OPINION
AND ORDER
DENISE COTE, District Judge:
The product liability lawsuits associated with the brand
name drug Eliquis pending in federal court have been assigned to
this Court pursuant to an MDL.
Each of these lawsuits has been
dismissed on preemption grounds or for failure to state a claim.
This action, filed in California state court, is no exception.
Two previous Opinions addressed Eliquis product liability
claims -- Utts v. Bristol-Myers Squibb Co. & Pfizer Inc., 226 F.
Supp. 3d 166 (2016) (“Utts I”), and Utts v. Bristol-Myers Squibb
Co. & Pfizer Inc., 251 F. Supp. 3d 644 (S.D.N.Y. 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
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.
Some of the plaintiffs in the actions transferred to the
Court, including the plaintiff in the instant action, seek to
remand their lawsuits to state court.
The previously filed
remand motions were denied and the cases were dismissed with
prejudice.
See, e.g., Cheung v. Bristol-Myers Squibb Co. et
al., 282 F. Supp. 3d 638 (S.D.N.Y. 2017) (“Cheung”).
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The Cheung
Opinion found that remand was not warranted because subject
matter jurisdiction existed, based on the diversity of the
parties.
The Court dismissed all four relevant complaints with
prejudice, based on the reasoning in the Utts II Opinion, and in
Fortner.
The above-captioned case was filed in California state
court on April 13, 2018, removed to federal court, and arrived
on this Court’s docket on May 7.
The plaintiff failed to timely
file an amended complaint or show cause why her complaint should
not be dismissed based on the analysis in Utts II.
Instead, on
May 17, the plaintiff filed a motion to remand based on a lack
of diversity jurisdiction.
Defendants Bristol-Myers Squibb Co.
(“BMS”) and Pfizer, Inc. (“Pfizer”) opposed the motion on May
31.
Plaintiff replied on June 6.
The plaintiff’s motion is
denied as to her claims against BMS and Pfizer and her claims
against those two defendants are dismissed with prejudice.
The
claims against St. Mary’s Medical Health Center and Dignity
Medical Health Centered are severed from this action and the
motion to remand is granted as to those claims.
DISCUSSSION
As an initial matter, unless the remand motion is granted,
this case must be dismissed due to the plaintiff’s failure to
comply with the Court’s May 9 scheduling Order.
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A plaintiff
cannot bypass the requirements this Court has imposed on parties
in this MDL.
The plaintiff’s motion to remand the action is premised on
the California residence of two defendants, St. Mary’s Medical
Health Center and Dignity Health Medical Center (the “California
Defendants”).
The complaint engages in group pleading and
alleges that all defendants “designed, researched, manufactured,
tested, advertised, promoted, marketed, prescribed, provided
free samples, recommended, sold and distributed Eliquis, as well
as dealt with governmental regulatory bodies.”
The complaint
provides no factual support for most of these assertions against
the California Defendants.
The complaint identifies the
California Defendants as “commercial distributors and
disseminators of the drug Eliquis.”
Moreover, there is no
allegation that the California Defendants specifically
prescribed Eliquis to the plaintiff, or to any other patient.
The plaintiff does not allege that her physicians, who
prescribed her the drug, are associated with the California
Defendants.
BMS and Pfizer request that the Court sever the
claims against the California Defendants and deny the motion to
remand the claims against BMS and Pfizer.
Rule 21 permits a court to “sever any claim against a
party.”
Fed. R. Civ. P. 21.
“The decision whether to grant a
severance motion is committed to the sound discretion of the
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trial court.”
New York v. Hendrickson Bros., Inc., 840 F.2d
1065, 1082 (2d Cir. 1988).
While the Second Circuit has not
articulated a precise test for severance, courts in this
district generally consider five factors:
(1) whether the claims arise out of the same transaction or
occurrence; (2) whether the claims present some common
questions of law or fact; (3) whether settlement of the
claims or judicial economy would be facilitated; (4)
whether prejudice would be avoided if severance were
granted; and (5) whether different witnesses and
documentary proof are required for the separate claims.
Dickerson v. Novartis Corp., 315 F.R.D. 18, 24-25 (S.D.N.Y.
2016) (citing N. Jersey Media Grp. Inc. v. Fox News Network,
LLC, 312 F.R.D. 111, 114 (S.D.N.Y. 2015)).
See also Oram v.
SoulCycle LLC, 979 F. Supp. 2d 498, 502-03 (S.D.N.Y. 2013)
(listing and applying the same factors); Erausquin v. Notz,
Stucki Mgmt. (Bermuda) Ltd., 806 F. Supp. 2d 712, 720 (S.D.N.Y.
2011) (same).
These courts also agree that “[s]everance
requires the presence of only one of these conditions, although
courts view severance as a procedural device to be employed only
in exceptional circumstances.”
Dickerson, 315 F.R.D. at 25.
This court may rule “on a broad range of preliminary legal
and factual questions, including motions . . . to remand to
state court.”
§ 3866 Jurisdiction and Power of the Transferee
Court, 15 Fed. Prac. & Proc. Juris. (4th ed.).
See also In re
McDonald's French Fries Litigation, 545 F. Supp. 2d 1356, 1356
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(U.S.J.P.M.L. 2008) (“Plaintiffs can present any motion for
remand to state court to the transferee judge.”).
The California Defendants are essentially nominal
defendants in this action: the complaint asserts no independent
claim against them and asserts no facts specific to the
California Defendants.
The plaintiff appears to have duplicated
a prior complaint filed against BMS, Pfizer, and McKesson, an
authorized Eliquis distributor, and replaced “McKesson” with the
California Defendants.
complaint remain.
Indeed, remnants of that copied
There are some paragraphs that contain
allegations against McKesson, not named as a defendant in
plaintiff’s complaint, and not the California Defendants.
As is clear from the Utts Opinions, the lawsuits filed
against BMS and Pfizer arise from their alleged failures in the
design of Eliquis and the labeling under which Eliquis is
distributed.
These lawsuits uniformly argued that the label
failed to adequately warn of a risk of excessive bleeding, and
the plaintiff’s complaint is no exception.
There is no
suggestion that either of the California Defendants had any role
in the manufacturing of Eliquis or the design of its label.
This plaintiff has added the California Defendants as defendants
to this action to destroy diversity and prevent her claims
against BMS and Pfizer from proceeding through the MDL and being
dismissed.
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The plaintiff articulates no compelling argument against
severance of the California Defendants.
She argues,
incorrectly, that the California Defendants are “indispensable
parties . . .
because a judgment in federal court would prevent
plaintiff from pursuing her claim against them elsewhere.”
If
the California Defendants are severed from the action before
this Court, plaintiff is free to pursue her claims against them
in California state court.
As recited in Utts II, however, it
does not appear to this Court that California law favors the
plaintiff’s claims.
Utts II, 251 F. Supp. 3d at 673-74 (finding
that, “[n]ot only are the plaintiff’s failure to warn claims
preempted [by federal law],” the claims must be dismissed
because they “fail[] to state a claim under California law”).
CONCLUSION
For the forgoing reasons, it is hereby
ORDERED that any claims against St. Mary’s Medical Center
and Dignity Health Medical Center are severed from this action.
The remaining defendants in this action are Bristol-Meyers
Squibb Co. and Pfizer, Inc.
IT IS FURTHER ORDERED that the plaintiff’s May 17 motion to
remand this action is granted in part.
The claims against St.
Mary’s Medical Center and Dignity Health Medical Center are
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remanded to the Superior Court of California for the County of
San Francisco.
IT IS FURTHER ORDERED that claims asserted against
defendants Bristol-Meyers Squibb Co. and Pfizer, Inc. are
dismissed with prejudice.
IT IS FURTHER ORDERED that the Clerk of Court shall enter
judgment for defendants Bristol-Meyers Squibb Company and
Pfizer, Inc. and close the above-captioned case.
Dated:
New York, New York
June 14, 2018
____________________________
DENISE COTE
United States District Judge
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