A U.S. Supreme Court decision widely greeted by defense attorneys as a game-changer hasn't exactly dealt them a slam dunk in the courts.
Since the Supreme Court's decision in Bristol-Myers Squibb v. Superior Court of California, defendants have cited the June 19 ruling in attempting to remove cases across the country to federal court with the goal of dismissing them. But federal judges haven't come down in their favor in all cases. In fact, of the nearly 30 rulings that have come out so far, many have turned for the plaintiffs, though often on narrow procedural grounds.
That hasn't stopped lawyers on both sides from citing the new rulings to support their case.
In light of the recent Bristol-Myers Squibb Co. decision, more and more courts across the country are dismissing plaintiffs' claims when there is no jurisdiction over the defendant, wrote Douglas Moore of New Orleans-based Irwin Fritchie Urquhart & Moore, in a supplemental notice filed on Wednesday for Sanofi-Aventis U.S. LLC, which is opposing a remand of lawsuits brought by 70 women over its chemotherapy drug Taxotere.
Bristol-Myers limited the venues where defendants could be sued. The U.S. Supreme Court held that most of the 600 plaintiffs in a case against Bristol-Myers over its blood thinner Plavix had failed to establish specific jurisdiction because there wasn't enough of a link between their claims and California, where they brought their lawsuit.
Subsequent removals have come largely in Missouri and California. They involve talcum powder, the anti-psychotic drug Risperdal, blood thinners Pradaxa and Xarelto, diabetes drug Saxagliptin, chemotherapy medication Taxotere, and Mirena and Essure birth control devices.
Pro-Plaintiff Rulings
This week, plaintiffs won a round of victories when U.S. District Judge Stephen Limbaugh of the Eastern District of Missouri on Tuesday granted emergency motions to remand four cases involving 286 women and their families who sued Johnson & Johnson claiming its talcum powder products caused them to get ovarian cancer.
Limbaugh found that Johnson & Johnson had removed the cases far too late. Under federal statute, a case may not be removed more than one year after it was filed unless the plaintiff has acted in bad faith.
Here, plaintiffs surely secured advantageous forums by manipulating the groups of plaintiffs in an attempt to prevent federal jurisdiction, he wrote. However, this manipulation was legal within the confines of federal statutes and case law at the time and was not done in bad faith.
On Thursday, U.S. District Judge John Ross, also in the Eastern District of Missouri, followed up with strikingly similar rulings in three talcum powder cases involving 239 women.
Plaintiffs previously had cited a June 27 ruling in which U.S. District Judge Jon Tigar in San Francisco ruled that a South Carolina woman had jurisdiction to bring a case in California claiming Saxagliptin increased her risk of heart failure. He found the case was distinguishable from Bristol-Myers because the Saxagliptin clinical trials conducted here were part of the unbroken chain of events leading to plaintiff's alleged injury.
He refused to dismiss the case but transferred it to South Carolina, at the request of defendants Bristol-Myers and AstraZeneca, where most of the documents and witnesses were located.
Defense Successes
Defendants have posted wins in two rulings by federal judges in Missouri. On June 27, U.S. District Judge Catherine Perry ruled in favor of defendant Boehringer Ingelheim in dismissing 86 of the 94 plaintiffs in a case over blood thinner Pradaxa.
Just as in Bristol-Myers Squibb, defendants here market and sell their pharmaceutical drug in the forum state, but the nonresident plaintiffs did not ingest the drug in the forum, nor do they claim to have suffered resulting injuries in the forum, she wrote. The personal injuries of the non-Missouri plaintiffs have no connection with Missouri.
In the other decision, U.S. District Judge Carol Jackson granted dismissal of 86 plaintiffs who sued Bayer over birth control device Essure.
With one exception in this case, the non-Missouri plaintiffs do not allege that they acquired the Essure device from a Missouri source or that they were injured or treated in Missouri, she wrote. Moreover, defendants did not develop, manufacture, label, package, or create a marketing strategy for Essure in Missouri.
Sanofi's lawyers cited Jackson's ruling in Taxotere, in which more than 1,000 lawsuits have alleged breast cancer survivors have lost their hair permanently. They also wrote about three other decisions that referenced Bristol-Myers. U.S. District Judge Roy Dalton in the Middle District of Florida on June 22 dismissed two of the three defendants from a case brought over allegedly defective hair removal devices. And the New Jersey Superior Court, Appellate Division, found on July 5 that a former Florida client of defunct Pennsylvania law firm Wolf Block couldn't bring a malpractice suit in New Jersey.
Sanofi also cited a June 26 ruling in which U.S. District Judge Kurt Engelhardt of the Eastern District of Louisiana granted a defense motion to dismiss a contract dispute over barge cleanup services. In that case, the ruling could be less about Bristol-Myers and more about the experience of Engelhardt, who is also the judge overseeing all the Taxotere cases.
Contact Amanda Bronstad at abronstad@alm.com. On Twitter: @abronstadlaw.
