A New Jersey federal judge has remanded 57 cases claiming injuries over the blood thinner Plavix to state courts. Bristol-Meyers Squibb Co. and Sanofi-Aventis U.S. LLC had argued that the suits fraudulently included drug distributor McKesson Corp. and unrelated Plaintiffs to avoid federal jurisdiction. Partially granting the Plaintiffs’ motion in the multidistrict litigation (MDL), U.S. District Judge Freda L. Wolfson remanded 12 cases to California state court after finding that the one-time Plavix users presented a colorable claim against California-headquartered McKesson. Judge Wolfson also remanded another 45 cases in declining to adopt a “fraudulent misjoinder” doctrine.
In asserting that doctrine, BMS and Sanofi wanted to carve out the Plaintiffs in the 45 suits that they said had little connection to other Plaintiffs in each case but who reside in the companies’ home states, which prevented the kind of complete diversity among the parties that could keep the suits in federal court. Judge Wolfson said the state court should resolve the issue of misjoinder, citing “considerable reasons against adopting the fraudulent misjoinder doctrine.” The judge said:
Conducting fraudulent misjoinder analysis in this case necessarily requires the court to wade into a thorny thicket of unsettled law; indeed, disagreements exist as to numerous questions about the doctrine, and ‘the last thing the federal courts need is more procedural complexity.
Judge Wolfson did express concerns, however, about complaints made by the Plaintiffs that seemingly have “little in common” except for their use of Plavix. She stated in that regard:
While I am aware that California’s joinder rules are particularly liberal, these factual matters will nevertheless necessarily have an impact on the outcome of the dispute over joinder of claims by plaintiffs. In my view, in pharmaceutical cases like the ones here, courts should be steadfast in guarding against plaintiffs’ attempts at forum shopping by employing questionable procedural mechanisms, including misjoinder of claims.
The Plaintiffs contended that Plavix was marketed as a better alternative to an aspirin regimen when, in reality, the drug isn’t more effective in preventing heart attacks and strokes with its risks outweighing any benefits. The 60 suits at issue — three of which will remain in federal court — involve Plaintiffs from 45 states, Canada and Puerto Rico, and were filed between 2012 and 2014 in California state court in San Francisco. BMS and Sanofi removed the cases to California federal court, and they were later transferred to the MDL. There are no federal claims in the suits.
In arguments over remand, BMS and Sanofi contended that McKesson was only named as a defendant in the suits, which include several California residents, to prevent diversity among the parties. They said that the court should ignore that company’s location in determining jurisdiction. According to BMS and Sanofi, the Food Drug and Cosmetic Act should preempt the claims against McKesson, but Judge Wolfson said courts are restricted from making a “merits determination” in weighing the allegedly fraudulent inclusion of a defendant.
Judge Wolfson also said that California law doesn’t bar failure-to-warn claims against drug distributors and that Plaintiffs had demonstrated a “colorable claim” against McKesson over the allegedly marketing and distribution of Plavix without proper warnings. The three cases remaining in federal court involve parties with complete diversity. The order stated that the Plaintiffs couldn’t get them remanded based on the “forum defendant rule,” which blocks the removal of a suit when a properly joined and served defendant is a citizen of the state where the litigation is filed. McKesson wasn’t served at the time BMS and Sanofi removed the cases.
In his order, Judge Wolfson agreed with a majority of courts in deciding that a “nonforum defendant may remove before a properly joined forum defendant has been served.” The decision was said to be consistent with California and Ninth Circuit case law. The companies were accused of “unnecessary procedural delays, including improper removal to federal court.” The case is in the U.S. District Court for the District of New Jersey.
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