Gibbons v. Bristol-Myers Squibb Co.

• Decision Date: 26 March 2019
• Docket Number: 17-2648,August Term 2018,17-2677,17-2642,17-2687,17-2661,17-3765,17-3867,17-2643,Nos. 17-2638,17-2667,s. 17-2638
• Parties: Catherine GIBBONS, et al., Plaintiffs-Appellants, v. BRISTOL-MYERS SQUIBB COMPANY and Pfizer Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

919 F.3d 699

Catherine GIBBONS, et al., Plaintiffs-Appellants,

v.BRISTOL-MYERS SQUIBB COMPANY and Pfizer Inc., Defendants-Appellees.

Nos. 17-2638

17-2642

17-2643

17-2648

17-2661

17-2667

17-2677

17-2687

17-3765

17-3867

August Term 2018

United States Court of Appeals, Second Circuit.

Argued: November 27, 2018

Decided: March 26, 2019

Lawrence R. Lassiter, Miller Weisbrod, LLP, Dallas, TX and Lisa Causey-Streete, Salim-Beasley, LLC, Natchitoches, LA, for Plaintiffs-Appellants.

Neal Kumar Katyal (with Eugene A. Sokoloff and Mitchell P. Reich on the brief), Hogan Lovells US LLP, Washington, DC and Loren H. Brown (with Cara D. Edwards and Lucas P. Przymusinski ), DLA PIPER LLP (US), New York, NY, for Defendants-Appellees.

Before: Livingston, Carney, Sullivan, Circuit Judges.

Richard J. Sullivan, Circuit Judge:

Plaintiffs in this multi-district litigation appeal from judgments entered by the United States District Court for the Southern District of New York (Denise L. Cote, J. ) dismissing their products liability claims for injuries allegedly caused by the drug Eliquis (apixaban). Specifically, Plaintiffs assert that the district court (1) incorrectly denied motions to remand forty-four of the sixty-four cases before it, and (2) wrongly concluded that Plaintiffs’ state law claims were preempted by the Food, Drug, and Cosmetics Act ("FDCA"). Because, as explained below, we agree that removal was proper and that Plaintiffs’ state law claims are preempted, we AFFIRM.

I. BACKGROUND

Defendants Bristol-Myers Squibb Co. ("BMS") and Pfizer Inc. ("Pfizer") are pharmaceutical companies that are incorporated in Delaware and maintain their principal places of business in New York. Together, Defendants manufacture and distribute Eliquis, a blood-thinning medication used to reduce the risk of stroke in patients with atrial fibrillation. As might be expected, Eliquis increases patients’ risk of bleeding. To that end, the drug, which was approved by the Food and Drug Administration in 2012, carries warnings about the risk of serious, and possibly fatal, bleeding events.

In 2015, plaintiffs nationwide began to bring products liability actions against Defendants, asserting that they or their decedents had suffered excessive bleeding after taking Eliquis that resulted in substantial injury (both physical and financial) or even death. Although the suits arose under the laws of several states, plaintiffs generally alleged that the injuries they or their decedents suffered were attributable to the improper design of Eliquis and the insufficient warning labels that accompanied the drug. Seventeen such suits made their way to the United States District Court for the Southern District of New York, where they were assigned to Judge Cote. The district court ordered the parties to identify a single bellwether case, and the parties selected Utts v. Bristol-Myers Squibb Co. , No. 16-cv-5688, for that purpose. Defendants moved to dismiss the complaint in that exemplar action, and on December 23, 2016, the district court granted Defendants’ motion in part. See Utts v. Bristol-Myers Squibb Co. , 226 F.Supp.3d 166, 189 (S.D.N.Y. 2016) (" Utts I "). The district court concluded that most of the claims in the Utts complaint, including the failure-to-warn claims, were preempted by the FDCA, and that the others simply did not meet the Rule 8 pleading threshold. Id. The district court dismissed the design defect allegations with prejudice, but granted leave to amend the remaining claims. Id. The Utts plaintiffs filed their first amended complaint on January 20, 2017.

Following the district court’s dismissal of the original complaint in Utts , the Judicial Panel on Multidistrict Litigation transferred all Eliquis products liability actions pending in federal court to the Southern District of New York and assigned them to Judge Cote. See S.D.N.Y. Case. No. 17-md-2754 (DLC), Doc. No. 1. Judge Cote thereafter determined that the best procedure for the MDL would be to (1) allow the plaintiffs in Utts to amend their complaint again, (2) have the parties brief a motion to dismiss that complaint, and then, (3) following its ruling on the motion to dismiss the amended complaint in Utts , permit the parties either to (a) proceed to discovery in all cases (if the motion were denied) or (b) have the non-Utts plaintiffs show cause why their similar complaints should not also be dismissed on the grounds set out in the Utts opinion. The parties agreed.

The plaintiffs in Utts amended their complaint on February 24, 2017, setting out ten claims for: (1) manufacturing defect; (2) failure to warn; (3) strict liability; (4) negligence; (5) breach of express warranty; (6) breach of implied warranty; (7) fraudulent concealment; (8) negligent misrepresentation; (9) violation of the California consumer protection laws; and (10) loss of consortium. Defendants again moved to dismiss, and the district court again granted the motion, rejecting all of the Utts plaintiffs’ claims under Federal Rule of Civil Procedure 12(b)(6). See Utts v. Bristol-Myers Squibb Co. , 251 F.Supp.3d 644, 684 (S.D.N.Y. 2017) (" Utts II "). Following the entry of Utts II , the district court gave the plaintiffs in the other pending MDL suits two weeks to (1) amend their complaints and (2) show cause why those complaints should not be dismissed in light of Utts II . Out of sixty-eight then-pending actions, just nineteen plaintiffs attempted to show cause why dismissal was not warranted. None was successful.

As it had earlier in the case, the district court set out its reasoning in an exemplar opinion – this time, Fortner v. Bristol-Myers Squibb Co. , No. 17-cv-1562 (DLC), 2017 WL 3193928 (S.D.N.Y. July 26, 2017). In that decision, the district court concluded that (1) Plaintiffs’ negligence and strict liability claims were preempted by the FDCA to the extent they were based on a design defect theory, and to the extent they were based on a "failure to warn" theory, they were preempted by the FDCA and failed due to the label’s adequacy as a matter of law; (2) the breach of warranty claims failed to state a claim; (3) the fraudulent concealment and negligent misrepresentation claims failed under Rule 9(b); and (4) the state law consumer protection claims were preempted and, in any event, failed to state a claim. Id. at *2–5. The district court then applied that reasoning to dismiss the other eighteen suits before it. Plaintiffs timely appealed those dismissals, which were consolidated in this Court on September 15, 2017.

However, at the time the district court dismissed the nineteen actions before it, not all Eliquis cases pending nationwide had become part of the MDL. Thus, at least thirty-three cases – all brought by the same counsel, Salim-Beasley, LLC – were pending in federal court in California awaiting transfer to the MDL at the time of Utts II . Following the district court’s dismissal order in Utts II , the plaintiffs in these thirty-three California actions voluntarily dismissed their suits without prejudice and refiled them in Delaware state court. Two days later, Defendants – who had not yet been served with the Delaware complaints – removed the actions to the United States District Court for the District of Delaware and requested that they be transferred and consolidated into the MDL before Judge Cote. For their part, the plaintiffs in the thirty-three Delaware actions asked the District of Delaware to remand their cases to state court, arguing that because the only basis for federal court jurisdiction was diversity of citizenship, Defendants’ status as citizens of Delaware meant that removal was prohibited under 28 U.S.C. § 1441(b)(2). The District of Delaware denied the plaintiffs’ motions, see Young v. Bristol-Myers Squibb Co. , No. 17-609-LPS, 2017 WL 2774735, at *3 (D. Del. June 27, 2017), and transferred the actions to Judge Cote, who eventually dismissed them with prejudice for the reasons articulated in Utts II . Plaintiffs have not appealed the dismissal of those actions.

Nevertheless, additional Eliquis plaintiffs – also represented by Salim-Beasley, LLC – adopted a new strategy whereby they filed a series of new suits in Delaware state court. When Defendants again removed the cases to federal court in Delaware before service, the new plaintiffs consented to the transfer of these removed actions to the MDL, and then asked Judge Cote to remand the suits to Delaware state court. See, e.g. , Cheung v. Bristol-Myers Squibb Co. , 282 F.Supp.3d 638, 641 (S.D.N.Y. 2017) (addressing four such actions). The district court denied Plaintiffs’ remand motions, see id. at 644, and then applied the earlier reasoning of Utts II and Fortner to dismiss all forty-five actions that came to it by this route (the "Transferred Actions"). The plaintiffs in the Transferred Actions timely appealed, and the forty-five Transferred Actions were consolidated on appeal with the nineteen Eliquis actions already pending before this Court, of which fifteen now remain.¹

II. STANDARD OF REVIEW

"We review a district court’s denial of a motion to remand de novo ." O’Donnell v. AXA Equitable Life Ins. Co. , 887 F.3d 124, 128 (2d Cir. 2018). "In reviewing a denial of a motion to remand, ‘the defendant bears the burden of demonstrating the propriety of removal.’ " Id. (quoting Cal. Pub. Emps.’ Ret. Sys. v. WorldCom, Inc. , 368 F.3d 86, 100 (2d Cir. 2004) ). We also "review de novo a district court’s decision to grant a motion under Federal Rule of Civil Procedure 12(b)(6)." Spinelli v. Nat’l Football League , 903 F.3d 185, 196 (2d Cir. 2018) (emphasis added).

III. DISCUSSION

A. Removal

Plaintiffs first challenge the district court’s denial of their motions to remand the Transferred Actions. Specifically, Plaintiffs argue that because the only basis for federal court jurisdiction is diversity of citizenship,² and because BMS and Pfizer were sued in the state courts of their home state (Delaware), removal was barred by the forum defendant rule, 28...