An Oklahoma federal judge has put off ruling on whether to keep in federal court the Cherokee Nation’s mislabeling suit over a Johnson & Johnson subsidiary’s antipsychotic drug Risperdal. U.S. District Judge James H. Payne ordered discovery for jurisdictional issues. He rejected Johnson & Johnson’s contention that the case involves a federal question, but found that the case may belong in federal court on diversity grounds. Apparently, that question will hinge on whether the Cherokee Nation or the tribe’s health and business units incorporated in Oklahoma are the real party in interest. Although the tribe argued that it is not a citizen of any state, Johnson & Johnson told the judge that the proper Plaintiffs to the suit are the tribe’s health and business units. Judge Payne wrote in his order:
If a separate corporate entity, rather than the constitutional entity, is indeed the real party-in-interest, then diversity jurisdiction would likely exist.
The suit was originally filed by the Cherokee Nation in Sequoyah County Court in April, seeking restitution for the misbranded Janssen Pharmaceuticals Inc.’s Risperdal that the tribe allegedly purchased. The tribe claims in the suit that the companies failed to provide safety information they had about the drug, including that Risperdal increases the risk of stroke and diabetes in the elderly.
The tribe alleged in its suit that it had bought Risperdal between March 3, 2002, and Dec. 31, 2003, a period during which the companies admitted to misbranding the drug as part of a plea deal that ended the Department of Justice (DOJ)’s criminal case. In that settlement, the companies pled guilty to one misdemeanor count of improperly encouraging prescribers to treat dementia with Risperdal, despite its being approved only to address schizophrenia, when the conduct took place in 2002 and 2003.
Johnson & Johnson removed the case to federal court in July, and the Cherokee Nation filed a motion to remand the case in August. Judge Payne said he was not persuaded by Johnson & Johnson’s contention that federal law is at issue in the case. He wrote: “Federal law may possibly, but is not necessarily implicated in this case and does not confer jurisdiction on this court.”
The Cherokee Nation is represented by Cherokee Nation Attorney General Todd Hembree and Curtis “Muskrat” Bruehl of the Bruehl Law Firm. It will be most interesting to see how Judge Payne rules on the jurisdictional issue. The case is in the U.S. District Court for the Eastern District of Oklahoma.
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