This is from the Dechert side of the blog only.

Last week we gave you a lot of Medtronic decisions to mull over and to mostly be happy about.  And, like we mentioned, Medtronic is no stranger to preemption issues.  So, when we found yet another new Medtronic favorable device preemption case, at first we thought we might add it to one of our scorecards or cheat sheets and call it a day.  But, this is a win in a Ninth Circuit court and after Stengel, that can’t go overlooked. But, we’ll keep it short and simple nonetheless.

The case is Suckow v. Medtronic, Inc., No. 2:12-cv-01870-GMN-CWH, slip op. (D. Nev. Sept. 20, 2013) and it involves a pacemaker manufactured by Medtronic that was implanted in plaintiff in 2006.  Plaintiff had to have the device removed on an emergent basis in December 2010 and alleges she suffered injuries as a result of the removal surgery.  In addition to strict liability and breach of express warranty claims against Medtronic, plaintiff also brought negligence and misrepresentation claims against a Medtronic sales representative alleging that a few months before the removal, he evaluated the device and found it was operating normally and was fit and safe for continued use.  Slip op. at 2.Medtronic removed the case to federal court and argued that the sales representative was improperly joined.

Medtronic challenged the plaintiff’s claims against the sales representative on two grounds.  First, the sales rep had no contact with the plaintiff before December 2010.  Second, if the sales rep evaluated the device, it was at the request of the physician and it is the physician who “interprets any data and makes decisions.”  Id.  at 6.  While plaintiff argued that her claims against the sales rep weren’t preempted, she apparently neglected to address any of the arguments on fraudulent joinder.  Id.  So, it really was a no-brainer for the court to uphold removal and move on to decide Medtronic’s preemption motion.

But, we just want to take a minute to remind our readers that there are more substantive decisions out there about the risks of liability from the involvement of sales reps in the care and treatment of patients.  See our post here.  In Suckow, while the court didn’t have to reach it, it looks like defendants had a strong learned intermediary defense because the sales rep’s role was limited to the evaluation of the performance of the device, not in rendering advice, opinions, or direct care to the plaintiff.

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A favorite tactic of plaintiffs’ lawyers is to join together dozens of completely unrelated plaintiffs’ into one complaint. We see it all the time. Counsel lump their clients together in mass complaints that contain general allegations regarding the product, but nary a detail about the individual plaintiffs or their alleged injuries. They also choose fora that more often than not bear no relation to the parties or the controversy and are chosen by counsel for strategic purposes.

We can see why plaintiffs’ attorneys do this, but it does not make it right. By massing plaintiffs together, they give their cases an impression of gravitas, even if few (or none) of the plaintiffs have valid claims. Mass complaints also save them money because they pay one filing fee instead of many, preserving their war chests while simultaneously depriving the courts of funding they need to provide access to justice.

But the most invidious aspect of the mass complaint is the blatant forum manipulation in which plaintiffs’ counsel engage. Where complete diversity exists, it is a non-forum defendant’s statutory right to remove cases to federal court, so long as other requirements for removal jurisdiction are met. But if plaintiffs’ counsel can find just one plaintiff whose citizenship is the same as one defendant, he or she can combine that one plaintiff’s claims with the claims of others into one complaint, purportedly destroying complete diversity and making the complaint appear to be non-removable. Never mind that every other plaintiff’s citizenship is diverse from the defendant’s and that removal jurisdiction can and should exist over all their claims. Also never mind that keeping claims in state court means that they will not be transferred to federal multidistrict litigation. When MDLs exist, they usually have been requested by plaintiffs, and manipulating the forum to avoid MDL transfer is both hypocritical and wasteful of resources that parties and courts invest in those proceedings.

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So far this week, we’ve brought you very positive news.  Unfortunately, that’s about to change.  As much as we don’t like reporting it, we think it is important to get the word out about decisions that trouble us almost as much as it’s important to celebrate the victories.  So, when we came across Lucas v. Abbott Laboratories, 2103 WL 2905488 (N.D. Tex. Jun. 13, 2013) and saw that the court was allowing plaintiff to amend his complaint and that the decision cited Murthy v. Abbott Laboratories, 2012 U.S. Dist. LEXIS 171246 (S.D. Tex. Dec. 3, 2012) – we knew we weren’t going to like the result.

There have been multiple Murthy decisions that haven’t made us happy and our discussion of last year’s decision can be found here.  Unfortunately, on off-label promotion, the Lucas decision appears to go even a step further than Murthy.

In Lucas, plaintiff alleged injury from the drug Humira that was prescribed off-label – which we all know doctors are allowed to do.  In response to defendant’s motion to dismiss, plaintiff Lucas sought leave to file an amended complaint which he claimed sufficiently pled an exception to Texas’s pharmaceutical products liability immunity statute.  Lucas, at *1-2 (plaintiff’s original complaint was filed by now disbarred counsel and new counsel admitted it did not contain sufficient allegations regarding the immunity exceptions).  The statute provides that in a pharmaceutical products liability action “there is a rebuttable presumption that the defendant . . . [is] not liable with respect to the allegations involving failure to provide adequate warnings . . . if  the warnings or information that accompanied the product . . . were those approved by the [FDA].”  § 82.007 of the Texas Civil Practices and Remedies Code.  One of the exceptions to this bar on liability is where:

the defendant recommended, promoted, or advertised the pharmaceutical product for an indication not approved by the United States Food and Drug Administration; the product was used as recommended, promoted, or advertised; and the claimant’s injury was causally related to the recommended, promoted, or advertised use of the product.

§ 82.007(b)(3).

As to the second element, defendant conceded that plaintiff was prescribed the drug for an off-label use.  Id. at *4.  It was the first and third elements that Defendants challenged.  So, what was the alleged off-label promotion?  Defendant conducted clinical trials.  If you are waiting for more, keep waiting.  That’s it.  That’s all.  Plaintiff alleged that by conducting FDA-approved clinical trials to study off-label indications, defendant was promoting the drug for those off-label indications.

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A few weeks ago we blogged about courts that adhere to the Twiqbal pleading standard in deciding whether a defendant has been fraudulently joined and therefore whether a case should remain in federal court or be remanded.  The focus of our post was on whether courts were applying Twiqbal or some lesser federal standard for

Sometimes we feel just like Phil Connors when he said:  “I told you. I wake up every day, right here, right in Punxsutawney, and it’s always February 2nd, and there’s nothing I can do about it.”   That about sums up our feelings about the Yasmin/Yaz MDLWe wake up, right here in Southern District of Illinois, and it’s always pharmacist liability and fraudulent joinder, and there’s nothing we can do about it.  We thought the Seventh Circuit had put this issue to bed in Walton v. Bayer Corp., 643 F.3d 994 (7th Cir. 2011).  But, here we are one year later – and plaintiffs continue to file claims against pharmacies/pharmacists in the Yasmin/Yaz MDL in the hopes of beating diversity and having their cases remain in the South Illinois judicial hellholes (St. Clair County in this case).  Like Phil Connors, plaintiffs seem determined to re-live the same issue over and over again.  Like Phil Connors, plaintiffs make small changes to their argument each time in hope that the result will turn out differently.  But, unlike Phil Connors, we don’t see plaintiffs breaking out of this loop – the issue has been decided and it’s time to move on.

The most recent case on pharmacy/pharmacist liability and fraudulent joinder is Martin v. Moody’s Pharmacy, 2012 U.S. Dist. LEXIS 80863 (S.D. Ill. Jun. 12, 2012).  And, since this is a repeat performance by plaintiffs, it is somewhat of a repeat performance for us as well.  You can see our prior posts on Walton and pharmacy liability in the Yasmin/Yaz MDL here and here.  In fact, it’s only been a few weeks since the last Yasmin/Yaz pharmacy liability/fraudulent joinder decision.  So we’ll dispose of the basic issues quickly.

Plaintiff’s failure to warn claim is premised on the allegation that defendants failed to warn about the risks of taking YAZ for someone suffering from arteriovenous malformation (AVM) (a vascular condition which includes a heightened risk of hemorrhage).  Id. at *4.  In addition to suing the manufacturer, plaintiff sued her non-diverse pharmacy and pharmacists.  On that claim, plaintiff Martin, like plaintiffs in the prior cases, tried to rely on a narrow 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) See Martin, 2012 U.S. Dist. LEXIS at *18-20 (discussing Happel).  In deciding plaintiff’s motion to remand and the pharmacy defendants’ motion to dismiss, the court found that plaintiff missed the mark on the “actual knowledge” requirement:

the allegations of this most artfully crafted complaint do not specify that [the pharmacy] or The Pharmacist defendants had actual knowledge of the decedent’s AVM condition. There is no allegation that anyone had specifically advised the non-diverse defendants of the decedent’s condition, or that the pharmacy had previously filled prescriptions related to the decedent’s AVM condition, or that the pharmacy had asked about any complicating factors. All that is alleged is that the non-diverse defendants should have known of the risks inherent in YAZ for a person with AVM.

Id. at *10.  And, that’s not enough.

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Last week we wrote about Johnson v. DePuy Orthopaedics, Inc., 2012 U.S. Dist. LEXIS 74450 (N.D. Ohio May 30, 2012) and that court’s use of the TwIqbal motion to dismiss standard in deciding the issue of fraudulent joinder.  That made perfect sense to us.  On fraudulent joinder, defendant bears the burden of showing that plaintiffs can’t state a viable cause of action against the allegedly fraudulently joined defendant.  On a motion to dismiss, defendant bears the burden of showing that plaintiffs can’t state a viable cause of action against the defendant.  Seems like the same standard should apply.  So, we decided to see if other courts agreed with us and with Johnson.  What we found is that while courts generally agree that fraudulent joinder walks and talks like a motion to dismiss – it isn’t exactly a motion to dismiss.  If it isn’t exactly a motion to dismiss, then what standard applies?  What we learned is that question is answered in a myriad of different ways – some courts lean more toward a summary judgment standard because you are allowed to look beyond the pleadings, some look to whether there is a reasonable possibility that the plaintiff has asserted a valid claim, some look to state law – and yes, some do indeed look to Rule 12(b)(6).

First, we’ll quickly acknowledge that there are cases that say the fraudulent joinder standard is something quite different than TwIqbal.   For instance, in Junk ex rel. Junk v. Terminix Int’l Co., 628 F.3d 439 (8th Cir. 2010), plaintiff alleged that a pesticide used by a pest control company in her home during and shortly after her pregnancy caused severe neurological problems for her son.  Plaintiff sued both the company and the non-diverse employee who treated plaintiff’s house.  In deciding plaintiff’s motion to remand, the court stated the “Rule 12(b)(6) standard is more demanding” and that the proper, more lenient, standard is “whether there is arguably a reasonable basis for predicting that the state law might impose liability based upon the facts involved.”  Id. At 445 (court reversed denial of remand and reinstated and remanded claims against employee).

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For some reason, when we identify three things in a group, in our heads we hear them to the beat of “lions and tigers and bears, oh my!” from the Wizard of Oz.  It works with lots of things – apples, bananas and pears, oh my; iphones, droids and blackberries, oh my; vanilla, chocolate and strawberry, oh my!  And then that got us thinking about other things that come in threes.  Three strikes and you’re out and three goals in a hat trick.  There were Three Stooges (OK, technically there have been more Stooges, but we won’t go there) and Three Musketeers (again, you can argue with us about  D’Artagnan).    There are three Jonas Brothers and there were three Bee Gees.  Now, we feel like we are on an episode of the $10,000 Pyramid:  Blind mice, men in a tub, sheets to the wind – “things that come in threes.”

All that to segue into today’s case which touches on three of our favorite topics – fraudulent joinder, TwIqbal, and MDLs.  The case – Johnson v. DePuy Orthopaedics, Inc., 2012 U.S. Dist. LEXIS 74450 (N.D. Ohio May 30, 2012) is one of eleven essentially identical cases to be decided in the ASR Hip Implant MDL.  And, we are happy to report that the court decided that a claim brought against a local distributor constituted fraudulent joinder.  And, we are even happier to report that in reaching that conclusion, the court applied TwIqbal pleading standards to the motion to remand.

The context is quite familiar in our line of work.  Plaintiff sues diverse manufacturer and non-diverse distributor in state court; manufacturer removes to federal court on grounds of fraudulent joinder; plaintiff moves to remand; case gets transferred to MDL.

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