Someone at Pepper Hamilton wanted to send a copy of a recent Zyprexa decision to a reporter at The New York Times. But somehow the e-mail was misdirected to us instead.
(We thought that was funny. You guys at Pepper Hamilton have no sense of humor at all.)
One way or another, we just came across Judge Weinstein’s decision from last week in the Zyprexa MDL. This decision holds that the federal court has jurisdiction over claims brought by the Montana Attorney General alleging that Montana overpaid for Zyprexa under its state Medicaid program. In re Zyprexa Prods. Liab. Litig., No. 04-MD-1596, 07-CV-1933 (JBW), 2008 U.S. Dist. LEXIS 10355 (E.D.N.Y. 2008).
Although the AG’s complaint did not, on its face, seek to recover under federal law, Judge Weinstein held that “the question of the state’s obligation to reimburse its insured for prescription drugs, using funds largely provided by the federal government, is essential to the state’s theory of damages and presents an unavoidable central and disputed federal issue.“ Id. at *8. Quoting his earlier decision in the West Virginia AG’s case, Judge Weinstein held: “At issue here is not simply a federal standard, but also the added factor of an intricate federal regulatory scheme including detailed federal funding provisions, requiring some degree of national uniformity in interpretation.” Id. at *9. The court thus denied plaintiff’s motion to remand.
Judge Weinstein rejected Eli Lilly’s alternative ground for exercising federal jurisdiction — that federal law and FDA regulations preempted the state law claims. Id. at *15.
This result was predictable, because Judge Weinstein had previously found federal jurisdiction over similar cases brought by the Louisiana, West Virginia, and Mississippi AGs.
There are nonetheless a few things here worth noting.
First, Judge Weinstein notes (as he had in the past) that “there is no state-law equivalent of ‘off-label.’ The concept is entirely federal.” Id. at *14. That language is a starting point for defendants seeking to remove to federal court state-law personal injury suits that allege off-label promotion. In Judge Weinstein’s words: “The off-label marketing claims will therefore necessarily raise substantial federal questions by requiring the court to interpret the meaning of the FDCA and its implementing regulations.” Id. at *15.
Second, Judge Weinstein writes that, “In any rational system involving, as this case does, federal control of labeling and advertising by federal agencies, and the provisions and reimbursements under the federal Medicare program[,] one court should supervise pretrial.” Id. at *17. That echoes the earlier holding in the Average Wholesale Price Litigation: “[A]s the judge assigned the massive multidistrict litigation, involving class actions and numerous attorney general suits, I conclude that the issue of the meaning of [average wholesale price] under the federal Medicare statute has national significance. A federal forum provides experience, solicitude and uniformity on this federal issue.” In re Pharmaceutical Indus. Average Wholesale Price Litig., 475 F. Supp. 2d 77, 82 (D. Mass. 2006).
We’re reading between the lines here, but we get the sense that MDL judges think they have a little extra jurisdictional power because they’re handling complex national disputes. We surely empathize with that feeling, because MDL treatment is meant to achieve efficiencies by aggregating all federal litigation in a single forum. But judges shouldn’t let the perceived need for efficiency run roughshod over the law of federal jurisdiction. Massaging the law for the sake of expediency invites more widespread lawlessness, and “when the last law was down, and the Devil turned round on you — where would you hide, . . . the laws all being flat?”
Finally, Judge Weinstein notes that the federal trial courts have divided over the question whether Lilly can properly remove attorney general cases filed against it. On the one hand, Judge Weinstein exercised jurisdiction over the West Virginia, Louisiana, Mississippi, and Montana cases. On the other hand, federal judges remanded the Pennsylvania, South Carolina, and Utah cases. That situation cries out for appellate guidance.
When federal courts split over whether cases are removable, it’s a little tricky to obtain the appellate review needed to clarify the law. Orders remanding cases are not reviewable, “on appeal or otherwise.” 28 U.S.C. Sec. 1447(d). Orders denying motions to remand are interlocutory, and so typically appealable only after a final judgment has been entered — which may be years later.
We’re tempted to urge federal trial courts facing this situation to deny the motion to remand and certify an interlocutory appeal. That process would permit an appellate court to address the issue and thus help to clarify the law.
But perhaps stretching the law in the name of expediency would be a bad idea.
When the last law was down, where would we hide?