Photo of Stephen McConnell

Nerds such as your friendly neighborhood DDL bloggers read legal decisions with excitement. We hardly seem alone in that regard, at least lately. Over the past several weeks, SCOTUS issued a series of major opinions on wedge issues, engendering widespread feelings of triumph or despair or exultation or fury. The “least dangerous branch” looks plenty dangerous to a big chunk of the populace.

But a case can jiggle our neurons even if it has nothing to do with abortion or guns or the scope of federal agency powers. We admire clarity. We love logic. We are infatuated with courts that swat away plaintiff efforts to forum shop. And we really, really adore preemption.

We recently caught up with a very well written opinion that involved both preemption and fraudulent joinder. The opinion was written by Ninth Circuit Judge Miller in Ulleseit v. Bayer Healthcare Pharms. Inc., 2021 WL 6139816 (9th Cir. Dec. 29, 2021). Five plaintiffs claimed injuries from a drug and sued both the manufacturer and distributor for failure to warn. They filed their lawsuits in California state court. The manufacturer defendant removed the case to federal court, arguing that there was federal officer and diversity jurisdiction.

The Ninth Circuit initially remanded the case to state court after deciding there was no federal officer jurisdiction. Under then-existing precedent that we think is batty even for the Ninth Circuit, the court did not need to reach the diversity issue. SCOTUS must have thought that precedent batty, too, because it overturned that rule and now the Ninth Circuit needed to confront the diversity issue in Ulleseit.

The manufacturer was diverse from the five plaintiffs, but the distributor was not. The manufacturer argued that the distributor had been fraudulently joined, because the distributor lacked any power to enhance the warnings. Under the impossibility principle emanating from the Mensing and Bartlett SCOTUS cases, a failure to warn claim against the distributor had no chance. Accordingly, the distributor was fraudulently joined, the distributor should be dismissed from the case, and the failure to warn claim against the manufacturer should proceed in federal court.

That is how Judge Miller saw it. Judge Miller wrote that any additional warning would necessarily be part of the drug’s “labeling,” and “FDA regulations make clear that only the drug manufacturer — the ‘applicant’ for FDA approval – may change the labeling.” Because federal law prohibits a drug distributor from changing the labeling, a state tort law that imposes a duty on the distributor to modify the labeling is preempted.

The plaintiffs in Ulleseit could not even articulate a potential basis for the distributor to alter the drug label. “[C]onfronted with an argument that their claims against [the distributor] are preempted, plaintiffs have responded with … nothing.” The plaintiffs never identified a source for the distributor’s power to add warnings, and at oral argument all they could suggest was that the distributor should simply have declined to distribute the drug. As Judge Miller pointed out, that theory “is squarely foreclosed by Supreme Court precedent” — Bartlett.

Pretty good stuff, right?

Oh, did we mention that Judge Miller authored the dissent?

The majority opinion in Ulleseit is extraordinarily disappointing. First, it emphasizes the “heavy burden” that must be carried by a defendant arguing that another defendant was fraudulently joined. Then the majority distinguished Mensing on the most fatuous, literal grounds. You see, Mensing ruled that failure to warn claims against generic manufacturers were doomed because generic manufacturers lacked any power to change the warning label. Generic manufacturers are not the same thing as drug distributors. Therefore, Mensing does not apply. QED. Go back to state court.

The majority misses the point that Judge Miller set forth so well. The fact is that distributors are similar to generic manufacturers in the sense that is most relevant under Mensing and Bartlett: both lack any independent power to add drug warnings. The analytical gap in the Ulleseit majority opinion is yawning. That “yawning” word is used advisedly. The majority opinion does not just seem wrong-headed, dense, and dull, it also seems tired or – dare we say it? – lazy. The majority writes: “Although there are strong arguments for extending the reasoning of Mensing to claims against drug distributors, doing so would require additional analytical work.” Huh? The plaintiffs get to forum shop because the argument against it actually requires some thinking? Later, the majority writes: “The need for that additional layer of analysis exceeds what is permissible in this procedural posture.” Wow. Okay, we get it. The majority is really allergic to analysis. Too bad that analysis is part of the job description for appellate judges.

The end of Judge Miller’s dissent perfectly refuted the majority’s enervation and abdication: “Whatever analytical work may be necessary to conclude that plaintiffs’ claims are preempted, it is not work that anyone should find unduly taxing. Because plaintiffs can offer no explanation of how their claims against [the distributor] might avoid preemption, I would reverse the district court’s order and allow this case to proceed in federal court.”

Judge Miller was correct. (Judge Miller is a graduate of the University of Chicago Law School. Naturally.) The majority was incorrect. But the majority was worse than incorrect; the majority essentially refused to do its job.