Products Liability Law Daily Two dozen suits pared from Eliquis® product liability litigation
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Monday, October 16, 2017

Two dozen suits pared from Eliquis® product liability litigation

By Georgia D. Koutouzos, J.D.

In two decisions issued in as many days, the New York federal court overseeing the multidistrict litigation concerning the prescription blood thinner Eliquis® dismissed a total of 24 suits on largely procedural grounds. The plaintiffs in the at-issue lawsuits had sought remand to Delaware state court of the actions following the drug makers’ removal motions but their remand arguments were unsupported, the court held, ultimately dismissing the claims under its rationale in two earlier MDL rulings that the state-law design defect and failure to warn claims were preempted by federal law/regulations (Cheung v. Bristol Meyers Squibb Co. and (In re Eliquis (Apixaban) Products Liability Litigation, October 12 and 13, 2017, Cote, D.).

Dozens of individuals who allegedly had suffered internal bleeding and other ill effects after ingesting the prescription anti-coagulant Eliquis filed separate lawsuits against the medication’s manufacturers, Bristol Meyers Squibb Co. and Pfizer Inc., in Delaware state court. Among the suits filed on behalf of four plaintiffs by a Louisiana law firm and another 20 filed by various other plaintiffs. The drug makers removed the suits to federal court, after which they were tagged for transfer to a multidistrict suit pending in the U.S. District Court for the Southern District of New York. At that point, the plaintiffs in all 24 actions filed motions to remand of their suits to state court.

Utts and Fortner cases. After the above-mentioned suits at issue had been slated for transfer to the MDL but before the actual transfer had occurred, the New York court presiding over the MDL addressed the drug manufacturers’ motion to dismiss pending MDL claims in a May 8, 2017 decision (Utts v. Bristol Meyers Squibb Co.) holding that the design defect and failure to warn claims in previously transferred actions were preempted by federal law and regulations. The court again addressed the preemption issue in a July 26, 2017 decision (Fortner v. Bristol Meyers Squibb Co.) ruling that Eliquis’ label was adequate as a matter of law.

Before rendering its decision, however, the court had issued a scheduling order which provided that any action presently pending before the MDL court could file an amended complaint within 14 days after the dismissal motion in the Utts case. In accordance with the scheduling order, a second scheduling order issued after Utts stated that any future action transferred or reassigned to the MDL court would have 14 days to file an amended complaint and show-cause memorandum why the amended complaint should not be dismissed based on the preemption analysis contained in Utts.

The cases at issue arrived on the MDL docket in July through mid-September 2017; therefore, the plaintiffs in those cases had 14 days in which to file amended complaints and show-cause memoranda. Two show-cause memoranda were filed but no amended complaints were submitted.

Removal jurisdiction. With respect to the four cases filed by the Louisiana law firm, the court found that it was undisputed that the drug makers had removed the cases before they were properly served; therefore, a plain reading of the forum defendant rule—which bars removal from state to federal court of otherwise removable cases if the action originally was commenced in the state court of a state in which a defendant is a citizen—permitted that removal.

As for the plaintiffs’ arguments for remand, given the absence of case precedent from the controlling federal appellate circuit and the division among the federal trial courts within the circuit, there was no controlling authority that restricted the court’s authority to follow the removal statute’s terms as written by Congress. Furthermore, although the plaintiffs urged the court to ignore the plain reading of the statutory provision to discourage what they termed as "gamesmanship" by the drug makers, the provision’s plain meaning controlled absent ambiguity and neither ambiguity nor supporting legislative history was argued by the plaintiffs. Although the plaintiffs argued that it runs counter to the policies underpinning diversity jurisdiction to allow a defendant to petition for removal immediately after a case opening and before it is possible to serve the defendant, that argument was insufficient to overcome the abundantly clear language of the statute.

The plain language of the so-called resident exception for removal makes clear that its prohibition on removal applies only where a defendant who has been "properly joined and served" is a resident of the forum state. Ignoring the plain terms of the statute to determine in an individual case when a plaintiff had a meaningful opportunity to serve each defendant and to investigate the parties’ motives—such as the plaintiffs’ motives in filing in a particular venue and the defendant’s reasons for removing the action to federal court—would add expense, delay, and uncertainty to the litigation. In cases like the four at issue here, the investigation is complicated and points in several directions.

While the drug makers no doubt removed the actions swiftly to combine the four cases with the Eliquis MDL litigation and sweep them under the Utts umbrella, a ruling in favor of the plaintiffs on the issue of removal would reward a different kind of gamesmanship altogether, the court explained. And, because removal to federal court was proper, the only remaining issue was whether to dismiss the complaints and the Louisiana law firm did not present any developed argument against dismissal. Accordingly, for the preemption reasons stated in the Utts and Fortner decisions, the four complaints had to be dismissed.

Similarly, given the above determination, the court found that the 20 remaining cases were properly removed to federal court because federal subject-matter jurisdiction existed in each of those cases as well. Ergo, the motions to remand in those cases were denied and the cases were dismissed with prejudice.

The cases are Nos. 17cv6223(DLC), 17cv6239(DLC), 17cv6243(DLC), and 17cv6245(DLC); and No. 17md2754 (DLC).

Attorneys: Barrett L. Beasley (Salim Beasley LLC) for Fatimah Harris. Gregory Brian Williams (Fox Rothschild LLP) for Bristol-Myers Squibb Co. and Pfizer Inc.

Companies: Bristol-Myers Squibb Co.; Pfizer Inc.

MainStory: TopStory JurisdictionNews DrugsNews WarningsNews NewYorkNews

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