In Re Yasmin And Yaz (drospire-none) Marketing

• Citation: 692 F.Supp.2d 1012
• Decision Date: 26 February 2010
• Docket Number: Case No. 3:09-cv-10217-DRH-PMF,No. 3:09-md-02100-DRH-PMF,MDL No. 2100,3:09-md-02100-DRH-PMF
• Parties: In re YASMIN AND YAZ (DROSPIRE-NONE) MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION. This Document Relates To: Cathy M. Walton, Plaintiff, v. Bayer Corporation, Bayer Healthcare LLC, Bayer Pharmaceuticals Corporation, Bayer Healthcare Pharmaceu ticals Inc., Berlex Laboratories, Inc., Berlex, Inc., John Doe Manufacturers A-Z, Nieman Foods, Inc., John Doe Distributors A-Z, Defendants
• Court: U.S. District Court — Southern District of Illinois

692 F.Supp.2d 1012

In re YASMIN AND YAZ (DROSPIRE-NONE) MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION.

This Document Relates To: Cathy M. Walton, Plaintiff,

v.Bayer Corporation, Bayer Healthcare LLC,

Bayer Pharmaceuticals Corporation,

Bayer Healthcare Pharmaceu ticals Inc.,

Berlex Laboratories, Inc.,

Berlex, Inc., John Doe Manufacturers A-Z, Nieman Foods, Inc.,

John Doe Distributors A-Z, Defendants

No. 3:09-md-02100-DRH-PMF

MDL No. 2100

Case No. 3:09-cv-10217-DRH-PMF

United States District Court

S.D. Illinois

Feb. 26, 2010

COPYRIGHT MATERIAL OMITTED

Mark R. Niemeyer, Onder, Shelton et al., Webster Groves, MO, Michael S. Burg, Burg Simpson Eldredge Hersh & Jardine, Englewood, CO, Michael A. London, Douglas & London. P.C., New York, NY, Roger C. Denton, Schlichter, Bogard et al, St. Louis, MO, for In re Yasmin and Yaz.

Adam L. Hoeflich, Bartlit, Beck et al., Chicago, IL, John E. Galvin, Terry Lueck-enhoff, Fox, Galvin LLC, St. Louis, MO, for Defendants.

Berlex Laboratories International, Inc., c/o CSC-Lawyers Incorporating Service Company, Columbus, OH, pro se.

Schering AG, pro se.

ORDER

HERNDON, Chief Judge:

INTRODUCTION

This case was originally filed in the Circuit Court of the Third Judicial Circuit, Madison County, Illinois, and was removed from state court to this Court by Defendants, Bayer Corporation, Bayer Healthcare LLC, and Bayer HealthCare Pharmaceuticals, Inc. (formerly known as Berlex Laboratories, Inc. and Berlex, Inc.), on its own behalf and as successor by merger to Bayer Pharmaceuticals Corporation ¹ (collectively, "the Bayer Defendants") on the basis of diversity jurisdiction. Plaintiff in turn moved for remand to state court (09-cv-10217 Doc. 11). In an order issued contemporaneously herewith, the Court denied Plaintiff's motion for remand, finding that Defendant Niemann Foods, Inc.²("Niemann Foods") had been fraudulently joined.

Plaintiff's claims arise from personal injuries she allegedly suffered as a result of using Yasmin, an oral contraceptive prescription medication. Plaintiff asserts claims for strict products liability, negligence, failure to warn, breach of implied warranty, and statutory fraudulent misrepresentation against all of the Defendants (09-cv-10217 Doc. 2-1 pp. 2-4). Plaintiff alleges that the Bayer Defendants are liable for her alleged injuries because they were "engaged in the business of developing, designing, licensing, manufacturing, distributing, selling, marketing, and/or introducing [Yasmin and Yaz] into interstate commerce." Plaintiff asserts that Niemann Foods, the pharmacy that allegedly filled her Yasmin prescription, is subject to liability for her alleged injuries because it was "in the business of selling, distributing, labeling, marketing, and/or placing... pharmaceutical drugs including Yasmin and Yaz into interstate commerce" (09-cv-10217 Doc. 2-1 p. 4).

Now before the Court is Niemann Foods motion to dismiss the claims directed against it pursuant to Federal Rule of Civil Procedure 12(b)(6). (09-cv-10217 Doc. 9; MDL 2100 Doc. 349). For the reasons stated herein the motion is granted.

ANALYSIS

I. Preliminary Matter: Inclusion of Plaintiff's Case in In re Yasmin and Yaz (Drospirenone) Marketing, Sales Practices and Products Liability Litigation (S.D. Ill., MDL No. 2100)

Plaintiff contends, in her response to Niemann Foods motion to dismiss (09-cv-10217 Doc. 9), that her case is not a part of these consolidated proceedings because 1) there has not been a formal order issued by the JPML specifically transferring this case and/or 2) there has not been a consolidation order from this Court specifically making this case part of these proceedings. For the reasons discussed below, Plaintiff's argument is without merit. Because Plaintiffs contention is also relevant to this motion the Court addresses her argument here.

Pursuant to J.P.M.L. Rule 7.5(a), cases filed in the transferee district court that are properly part of the Multidistrict Litigation, are assigned to the transferee judge and made part of the Multidistrict Litigation pursuant to the transferee district court's local practice regarding related cases; No Action on the part of the Multidistrict Litigation Panel is required. See Rule 7.5(a) R.P.J.P.M.L.

Potential "tag-along actions" filed in the transferee district require no action on the part of the Panel and requests for assignment of such actions to Section 1407 transferee judge should be made in accordance with local rules for the assignment of related actions.

See also Ten Steps to Better Case Management: A Guide for Multidistrict Litigation Transferee Court Clerks, The Judicial Panel on Multidistrict Litigation & The Federal Judicial Center, p. 4 (2009) ("Cases filed in the transferee district that properly are part of an MDL (the Panel refers to these actions as xyz cases) should be reassigned to the transferee judge, if necessary, and associated with the master docket. This reassignment is made locally, without action on the part of the Panel") (emphasis added); In re California Wholesale Electricity Antitrust Litigation, 2001 WL 733534, 1 (Jud.Pan. Mult.Lit.) (Jud.Pan.Mult.Lit., 2001) (declining to include case in conditional transfer order because case was already pending in the transferee district court and therefore no action was required); In re Air Crash Disaster Near Chicago, Ill, on May 25, 1979, 476 F.Supp. 445, 452 (Jud. Pan.Mult.Lit, 1979) ("Tag-along actions originally filed in the transferee district are directed to the transferee judge or judges pursuant to local court rules for the assignment of related actions and require no Panel involvement").

Pursuant to local practice in the Southern District of Illinois, related cases are assigned to the same judge. See e.g. Gil-more v. Bayer Corp., 2009 WL 4789406, 1 (S.D.Ill., 2009). The instant case was assigned to the transferee judge for inclusion in these consolidated proceedings pursuant to local practice.³ Accordingly, Plaintiff's case is properly part of the Yasmin and Yaz (Drospirenone) Marketing, Sales Practices and Products Liability Litigation and no further action is required.

II. Motion to Dismiss

A. Standard of Review

A motion to dismiss under Rule 12(b)(6) challenges a complaint for failure to state a claim upon which relief may be granted. See Fed.R.Civ.P. 12(b)(6); Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir.1997). When ruling on a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the Court looks to the complaint to determine whether it satisfies the threshold pleading requirements under Federal Rule of Civil Procedure 8. Rule 8 states that a complaint need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). However, to survive a Rule 12(b)(6) motion, a complaint must allege "enough facts to state a claim to relief that is plausible on its face" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In other words, the plaintiff has an obligation "to provide the 'grounds' of his 'entitle[ment] to relief " by providing "more than labels and conclusions," because "a formulaic recitation of the elements of a cause of action will not do...." Id. at 555-56, 127 S.Ct. 1955 (quoting Pa-pasan v. Attain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.' Ashcroft v. Iqbal, —U.S.—, —, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955).

B. Claims

Plaintiff brings five counts against Niemann Foods: (1) strict products liability; (2) negligence; (3) failure to warn; (4) breach of implied warranty, and (5) fraud ulent misrepresentation under the Illinois Consumer Fraud Act (09-cv-10217 Doc. 2-1). As these are state law claims, Illinois substantive law applies. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The Court addresses each Count below.

1. Counts I—III; Strict Product Liability, Negligence, and Failure to Warn

The viability of Counts I through III depends on whether Illinois imposes an affirmative duty on pharmacists to warn customers about a drug's risks and side effects.⁴ Accordingly, the Court reviews a pharmacist's duty to warn below.

As a preliminary matter, this Court notes that the issue before it is a narrow one. Plaintiff is not alleging that Niemann Foods incorrectly filled her prescription or that Niemann Foods negligently performed a voluntary undertaking. (See 3:09-cv-10217, Doc. 2-1). Nor is Plaintiff alleging that Niemann Foods had patient-specific knowledge about her drug allergies and therefore knew the prescribed drug was contraindicated for her. See Id. In each of these scenarios, Plaintiff would have a valid claim against Niemann Foods under Illinois law. See Jones v. Walgreen Co., 265 Ill. App. 308 (Ill.App.1932) (when doubt exists as to what drug has been prescribed, pharmacist has a duty to take reasonable precautions to ensure prescription is accurately filled); Frye v. Medi-care-Glaser Corp., 153 Ill.2d 26, 178 Ill. Dec. 763, 605 N.E.2d 557 (1992) (where pharmacy voluntarily provides warning about prescription drug to customer, the extent of pharmacy's duty is to perform the voluntary undertaking without negligence); Happel v. Wal-Mart, Stores, Inc., 199 Ill.2d 179, 262 Ill.Dec. 815, 766 N.E.2d 1118, 1129 (2002) (pharmacy has "narrow duty to warn" when it has "patient-specific information about drug allergies, and knows that the drug being prescribed is contraindicated for the individual patient"). Rather, Plaintiff's failure to warn claims assert that the "Defendants" are liable, in both strict liability and negligence, for failing to provide the medical community and the public with adequate warnings regarding the potential risks of taking Yasmin. (3:09-cv-10217 ...