Miscellaneous day today, just before Memorial Day (remember to raise a glass to the common foot soldier this holiday) and the official start of summer − courtesy of our readers.
A tip of the cyber-cap to Mike Imbroscio at Covington and Bart Sullivan at Fox Galvin for sending us Aranda v. Walgreen Co., No. 12-cv-337-DRH, slip op. (S.D. Ill. May 23, 2012). Aranda demonstrates that, after the Seventh Circuit’s Walton decision finding fraudulent joinder of pharmacies under Illinois law, plaintiffs in the southern Illinois hellholes (St. Clair, this time) still haven’t given up. After getting caught falsely alleging the diversity of another party (slip op. at 3-4), the plaintiffs (71 of them) argued in Aranda that despite Walton, a pharmacy could be liable.
The plaintiffs in Aranda correctly observed that there is an exception to pharmacy non-liability in Illinois where the pharmacist has actual, subjective knowledge of a reason why a particular drug is contraindicated in a particular patient. Happel v. Wal-Mart Stores, Inc., 766 N.E.2d 1118 (Ill. 2002) (actual knowledge of synergistic adverse effect of two drugs). See slip op. at 8-10 (discussing Happel).
But so what?
None of the 71 blatantly misjoined plaintiffs in Aranda alleged any facts suggesting that the actual knowledge exception in Happel had anything whatsoever to do with their purported claims. To the contrary, the only allegations were the usual “knew or should have known” failure-to-warn boilerplate. Slip op. at 11-12. Thus, the Aranda plaintiffs had nothing to take their cases outside of the Seventh Circuit’s controlling Walton opinion:
Despite plaintiffs’ arguments to the contrary, the Court finds that this is the Walton case all over again. Plaintiffs allege that the manufacturing defendants and [the pharmacist] did not provide adequate warnings; they do not allege that [the pharmacist] had specific knowledge of each individual plaintiffs’ susceptibility to the adverse side effects of [the drug]. Clearly it is possible to allege for each plaintiff individually his or her medical susceptibility and how [the pharmacist] knew of that condition. While this may seem like a daunting task with so many plaintiffs in one complaint, it is perhaps not as daunting as preparing a different complaint for each plaintiff or paying a filing fee for each plaintiff. Nonetheless, this is what Walton requires, and the allegations in this case come nowhere near the situation in Happel where the Illinois Supreme Court found a narrow duty existed. Accordingly, the motion to remand is denied.
Aranda, slip op. at 12 (emphasis added). Boilerplate pleaded on behalf of a large number of improperly joined plaintiffs − hence the dig about failing to pay filing fees − doesn’t cut it. And so these 71 plaintiffs will stay in federal court, where they will almost certainly be severed and required to pay the proper filing fee.
There’s also this hearing transcript in Lukas-Werner v. Novo Nordisk, A/S, No. 1009-13177 (Or. Cir. Multnomah Co. May 11, 2012), rejecting Conte and the entire concept of brand-name liability in generic drug consumer cases. Here’s the decisive part of the hearing:
THE COURT: Well, this is really interesting. I think plaintiff’s argument has a lot of appeal, but that’s not my job here today. I am required to attempt to predict — and I need a much bigger crystal ball than I am using — what the Oregon Supreme Court would do with this theory. And my best prediction is that the Oregon Supreme Court would not recognize the innovator liability theory in these circumstances.
Frankly, I was thinking I don’t really care about defendant’s arguments about what causes of action the plaintiffs might have still brought against [other parties]. That’s not the question before me. The question is does this particular pleading state a cause of action under the Oregon common law, regardless of what other things might have been there and weren’t there.
The only reason I think there is any place for that argument in this motion, actually, is thinking that the Oregon Supreme Court, when it takes this issue up, will look at Article I, Section 10 of the Oregon Constitution and look at the Mensing case and say where that provision in our constitution says every man (sic) shall have a remedy by due course of law for injury done him (sic), and his person, property or reputation, would they say that in light of the U.S. Supreme Court’s ruling in Mensing there has to be innovator liability for that remedies clause to be given effect and meaning? And they would look and say, “Well, even if it’s not that particular remedy, are there others and so on.” So, you know, I’m not ignoring that argument completely, but I think it’s really tangential to the core issue here.
And I do not think the Oregon Supreme Court would conclude that the innovator, the original manufacturer of a drug responsible for its labeling, has a duty arising out of the FDA regulations to the consumers or prescribers of all generic versions of its drug.
And the plaintiffs acknowledge that foreseeability alone won’t get them there. That really is kind of what it amounts to, because the regs don’t permit the manufacturer of a generic that doesn’t want to go through the labeling process to do anything other than use the innovator’s labeling. That makes the harm foreseeable to the innovator.
I don’t think we can get there from here. So I’m granting the defendant’s motion. I do it reluctantly, but I’m granting it.
Transcript at 25:2-26:21.
Reading the rest of the transcript, we’re pleased (but not at all surprised) to see that defendants have picked up on the fact (which we discussed here) that Conte itself is an endangered species in California since the California Supreme Court’s rejection of pure foreseeability as a basis for product liability in O’Neil v. Crane Co., 266 P.3d 987 (Cal. 2012). See Transcript at 4:15-21 (“the O’Neil decision . . . swallows Conte up and spits it out”). Nice metaphor. There follows (pp. 4-5) admitted “speculation” about why the California Supreme Court didn’t accept an appeal in Conte itself. Since Bexis briefed the Conte petition for PLAC, he has his own speculation on that front to pass along. At the time, Bexis heard from long-time members of the California bar that the justices largely didn’t come from civil litigation backgrounds, and weren’t all that interested in the area. Only really “big” products cases − such as the asbestos-related issue in O’Neal can get their attention − despite Bexis letter brief in Conte laying out the parade of horribles. Anyway, it’s all speculation.
On the merits, this particular Conte win is particularly gratifying because: (1) it rejects a new plaintiff’s argument that we can expect to see elsewhere; (2) it’s in state, rather than federal court; (3) Oregon is not a particularly conservative jurisdiction, and (4) Oregon borders California, indicating that Conte isn’t having the kind of reach that earlier California product liability craziness (can you say “market share liability”?) did.