Chipego v. Allergan Inc.

• Decision Date: 14 January 2022
• Docket Number: 2:21-cv-16010 (BRM) (ESK)
• Court: U.S. District Court — District of New Jersey
• Parties: NAIDA CHIPEGO, Plaintiff, v. ALLERGAN, INC., et al., Defendants.

NAIDA CHIPEGO, Plaintiff,
v.
ALLERGAN, INC., et al., Defendants.

No. 2:21-cv-16010 (BRM) (ESK)

United States District Court, D. New Jersey

January 14, 2022

NOT FOR PUBLICATION

OPINION

HON. BRIAN R. MARTINOTTI, UNITED STATES DISTRICT JUDGE

Before the Court are Defendants Allergan, Inc. and Allergan USA, Inc.'s (collectively “Allergan”) Motion for Leave to File an Amended Notice of Removal (ECF No. 11), and Plaintiff Naida Chipego's, individually and on behalf of all others similarly situated, (“Plaintiffs”) Motion to Remand (ECF No. 6). Allergan opposed Plaintiffs' motion to remand (ECF No. 9), and Plaintiffs filed a reply (ECF No. 12).^[1] Having reviewed the parties' submissions filed in connection with the motions and having declined to hold oral argument pursuant to Federal Rule of Civil Procedure 78(b), for the reasons set forth below and for good cause having been shown, Allergan's Motion for Leave to File an Amended Notice of Removal is GRANTED, and Plaintiffs' Motion to Remand is DENIED.

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I. Background^[2]

Plaintiff Naida Chipego and class members are patients who had Allergan's BIOCELL textured breast implants and tissue expanders (collectively, “the BIOCELL implants”) surgically implanted. (Compl. (ECF No. 10-2) ¶¶ 29; 207.) Many of the Plaintiffs are breast cancer survivors or women having undergone prophylactic mastectomies, who were implanted with the BIOCELL implants in reconstructive surgery. (Id. ¶ 10.) Plaintiffs allege the BIOCELL implants cause Breast-Implant Associated Anaplastic Large Cell Lymphoma (“BIA-ALCL”), a cancer of the immune system that develops in the area around an implant, often between the implant and the surrounding scar tissue. (Id. ¶ 1.)

BIA-ALCL frequently presents as a late-onset seroma in the breast, which is an accumulation of fluid between the capsule and the implant, resulting in swelling of the breast. (Id. ¶ 76.) Left untreated, BIA-ALCL can spread through the body and be fatal. (Id.) Symptoms of BIA-ALCL can arise even after the implant is removed. (Id. ¶ 77.) Diagnostic procedures for detecting BIA-ALCL include computed tomography scans, magnetic resonance imaging, and fluid sampling. (Id. ¶ 78.) BIA-ALCL is treated with surgery to remove the implant and the surrounding

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capsule and tissue, and may require other treatments such as reconstructive surgery, chemotherapy, and radiation. (Id.)

This case involves dozens of recalled models of the BIOCELL implants. (Id. ¶ 2.) For over twenty years, Allergan and its predecessor companies marketed and sold the BIOCELL implants. (Id. ¶¶ 32-35.) As early as 1997, some women were reported to have developed BIA-ALCL after receiving the BIOCELL implants. (Id. ¶ 79.) Over the course of the next two decades, the number of reported cases of BIA-ALCL associated with the BIOCELL implants continued to mount. (Id. ¶¶ 79-83, 92-93.) Through this period, Allergan allegedly concealed the risks of BIA-ALCL by failing to appropriately submit adverse event reports to the Food and Drug Administration (“FDA”) or otherwise disclose to the public complete and accurate safety information regarding the BIOCELL implants. (Id. ¶¶ 147-158.)

On July 24, 2019, the FDA issued a Class I Recall notice of the BIOCELL implants. (Id. ¶ 2.) The FDA stated “the risk of BIA-ALCL with Allergan BIOCELL textured implants is approximately six times the risk of BIA-ALCL with textured implants from other manufacturers.” (Id. ¶ 4.) The FDA further stated the continued distribution of the BIOCELL implants “would likely cause serious, adverse health consequences and potentially death from BIA-ALCL.” (Id.)

Allergan recalled the BIOCELL implants after the FDA found the products posed a heightened risk of BIA-ALCL. (Id. ¶¶ 2-5.) According to the FDA, 246, 381 BIOCELL implants have been recalled in the United States. (Id. ¶ 210.) Plaintiffs claim Allergan does not intend to provide medical monitoring for class members to mitigate the increased risk of developing BIA-ALCL caused by the recalled BIOCELL implants. (Id. ¶ 6.) Plaintiffs also claim Allergan will not pay for the cost of explant surgery to remove the implants. (Id. ¶ 8.)

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On July 23, 2021, Plaintiffs filed a putative class action lawsuit against Allergan in the Superior Court of New Jersey. (ECF No. 1 ¶ 1.) Pursuant to New Jersey Court Rule 4:32, Plaintiffs define the class as follows:

All New Jersey citizens who, for personal use, implanted FDA-recalled Allergan Natrelle Saline-Filled Textured Breast Implants, FDA-recalled Allergan Natrelle Silicone-Filled Textured Breast Implants; FDA-recalled Allergan Natrelle 410 Highly Cohesive Anatomically Shaped Silicone- Filled Textured Breast Implants; FDA-recalled Allergan Natrelle 133 Plus Tissue Expanders; FDA recalled Allergan Natrelle 133 Tissue Expanders with Suture Tabs; and/or McGhan BioDIMENSIONAL Silicone-Filled BIOCELL Textured Breast Implants, Style 153 who were New Jersey citizens at the time of implant, had their implant surgery in New Jersey, and who have not been diagnosed with breast implant associated anaplastic large cell lymphoma.

(ECF No. 10-2 ¶ 207.) Plaintiffs assert their alleged injuries will require specialized testing and medical monitoring to reduce the risk of long-term disease and loss. (Id. ¶ 25.) Therefore, Plaintiffs are seeking “an injunction creating a Court-supervised, [Allergan]-funded medical monitoring program which will facilitate the diagnoses of Plaintiff[s] for BIA-ALCL.” (Id. ¶ 26.) Additionally, Plaintiffs request Allergan establish a medical monitoring program, including:

(a) establishing a fund, in an amount to be determined, to pay for the medical monitoring of everyone who received Recalled Breast Implants for the purpose of diagnosis, as frequently and appropriately as necessary; and (b) notifying all medical monitoring class members in writing that they may require frequent medical monitoring for the purpose of diagnosis.

(Id. ¶ 27.) The Complaint asserts the following causes of action: failure to warn (Count 1); manufacturing defect (Count 2); design defect (Count 3); violation of the New Jersey Consumer Fraud Act, N.J. Stat. Ann. § 56:8-1, et seq., (pled as a second Count 3); breach of express warranty (Count 5); and unjust enrichment (Count 6). (Id. ¶¶ 217-296.)

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On August 25, 2021, Allergan filed a notice of removal. (ECF No. 1.) The notice of removal stated Allergan, Inc. is a citizen of Delaware and Illinois (id. ¶ 6) but was silent as to Allergan, Inc.'s citizenship at the time the Complaint was filed. On September 24, 2021, Plaintiffs filed a motion to remand. (ECF No. 6.) On October 18, 2021, Allergan filed its opposition to Plaintiffs' motion to remand. (ECF No. 9.) Concurrently, Allergan filed a motion for leave to file an amended notice of removal. (ECF No. 10.) The amended notice of removal clarified Allergan, Inc.'s principal place of business was California at the time the Complaint was filed. (ECF No. 10-2 at 6 of 99, ¶ 7.) On November 8, 2021, Plaintiffs filed a reply in further support of the motion to remand. (ECF No. 12.)

II. Legal Standard

“Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute . . . .” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A defendant may remove any civil action over which a federal court would have original jurisdiction. 28 U.S.C. § 1441(a); City of Chi. v. Int'l Coll. of Surgeons, 522 U.S. 156, 163 (1997) (“The propriety of removal . . . depends on whether the case originally could have been filed in federal court.”); Penn v. Wal-Mart Stores, 116 F.Supp.2d 557, 561 (D.N.J. 2000). Original jurisdiction exists where a plaintiff's well-pleaded complaint presents a federal question under 28 U.S.C. § 1331 or there is diversity of citizenship under 28 U.S.C. § 1332. See Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Diversity jurisdiction, in turn, exists where “the matter in controversy [for each plaintiff] exceeds the sum or value of $75, 000” and all plaintiffs are “citizens of different States” than all defendants, i.e., there is complete diversity. 28 U.S.C. § 1332(a); see also Swiger v. Allegheny Energy, Inc., 540 F.3d 179, 181-82 (3d Cir. 2008).

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As a result of these requirements, however, “many” early class actions could not be litigated in federal courts, “even if those actions implicated matters of national importance affecting millions of parties from many different states.” Kaufman v. Allstate N.J. Ins. Co., 561 F.3d 144, 148 (3d Cir. 2009). In 2005, Congress enacted the Class Action Fairness Act (“CAFA”), authorizing “[f]ederal court consideration of interstate cases of national importance” under a less stringent jurisdictional threshold than § 1332(a). Standard Fire Ins. Co. v. Knowles, 568 U.S. 588, 595 (2013); see also Farina v. Nokia Inc., 625 F.3d 97, 110 (3d Cir. 2010). CAFA vests original jurisdiction in federal district courts to hear class action lawsuits where the following requirements are met: (1) the amount in controversy exceeds $5, 000, 000, as aggregated across all individual claims, see 28 U.S.C. §§ 1332(d)(2)-(6); (2) the citizenship of at least one class member differs from that of any defendant, i.e., there is minimal diversity, see 28 U.S.C. § 1332(d)(2)(A); and (3) the class consists of at least 100 members. See 28 U.S.C. § 1332(d)(5)(B).

Because CAFA strongly favors jurisdiction, see Anthony v. Small Tube Manufacturing Corp., 535 F.Supp.2d 506, 512 (E.D. Pa. 2007) (citing Evans v. Walter Industries, Inc., 449 F.3d 1159, 1163 (11th Cir. 2006)), “no antiremoval presumption attends [CAFA] cases.” Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 89 (2014); cf. Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990) (explaining that, in non-CAFA cases, courts must strictly construe the removal provisions and resolve all doubts...