Mirena Iud Prods. Liab. Litig. v. Bayer, 14-Cv-4876
| Decision Date | 26 August 2015 |
| Docket Number | 13- MC-2434 (CS),13-MD-2434(CS),14- CV-4876(CS) |
| Parties | IN RE: MIRENA IUD PRODUCTS LIABILITY LITIGATION This Document Relates to Brown v. Bayer, 14-CV-4876 |
| Court | U.S. District Court — Southern District of New York |
Appearances:
Christopher Oxx
Parker Waichman, LLP
Port Washington, New York
Counsel for Plaintiff
Christopher J. Cook
Brian P. O'Donoghue
Goldman Ismail Tomaselli Brennan & Baum, LLP
Chicago, Illinois
Before the Court is Defendants' Motion to Dismiss, (Doc. 19),1 the Amended Complaint of Plaintiff Ashley Brown, (Doc. 2 ("AC")). For the reasons stated below, Defendants' motion is DENIED.
For purposes of this Motion, the Court accepts as true the facts, but not the conclusions, as alleged in the AC. The Parties' knowledge of the factual and procedural history of this case and this multi-district litigation ("MDL") - including the discussion of fact and law in Truitt v. Bayer, 29 F. Supp. 3d 345 (S.D.N.Y. 2014), and In re Mirena IUD Prods. Liab. Litig., No. 13-MD-2434, 2015 WL 144214 (S.D.N.Y. Jan. 9, 2014), which are hereby incorporated - ispresumed. I recite only those case-specific facts relevant to this opinion. The crux of this dispute is rooted in Plaintiff's curious decision to file two largely identical lawsuits - the one at bar, and another, filed in California and previously dismissed by this Court on timeliness grounds, (No. 13-MD-2434, Doc. 2150).
Plaintiff Brown is a North Carolina resident, and received all relevant medical treatment in North Carolina. (AC ¶ 15; Doc. 22, at 4 n.1.) Defendant Bayer Healthcare Pharmaceuticals Inc. is a Delaware corporation with a principal place of business in New Jersey. (AC ¶ 16.)
Plaintiff alleges that she had the Mirena intrauterine system ("IUS") inserted on October 12, 2010, and that an x-ray on February 27, 2012, revealed the "IUS overlying the pelvis." (Id. at ¶ 42.) On March 5, 2012 "a laparoscopy was performed and the IUS was visualized entangled in the omentum," and then removed. (Id.) As a result, Plaintiff filed two largely identical lawsuits alleging various claims including products liability and fraud, first in Missouri state court, and later in California federal court.
On August 26, 2013, Plaintiff Brown and 92 other plaintiffs together filed a multi-plaintiff case in the Circuit Court of the City of St. Louis, captioned as Witherspoon, et al. v. Bayer HealthCare Pharms. Inc, No. 1322-CC09214. Plaintiff joined this suit despite having no apparent connection to Missouri. On September 26, 2013, the Witherspoon action was removed to the U.S. District Court for the Eastern District of Missouri, and onNovember 26, 2013, it was transferred to this MDL. On June 16, 2014, Plaintiff filed a severed and amended complaint pursuant to Case Management Order ("CMO") 20, and on June 30, 2014, a new docket number was assigned to Plaintiff's severed action, 14-CV-4876 (the "Missouri Action").
On April 18, 2014, after filing suit in Missouri, Plaintiff, along with 26 other plaintiffs, filed a nearly identical case, based on the same facts, in the U.S. District Court for the Central District of California. Plaintiff had no apparent connection to California. Plaintiff attributes her participation in the California case, captioned Battiest et al. v. Bayer HealthCare Pharms. Inc., 14-CV-3022, (Ds' Mem. Ex. C), to "an inadvertent dual filing," (14-CV-6190, Doc. 14). On June 2, 2014, Plaintiff's California case was transferred to this MDL, after which Plaintiff filed a severed and amended complaint pursuant to CMO 20, and her case was assigned a new docket number, 14-CV-6190 (the "California Action").
On October 21, 2014, pursuant to CMO 22A, Defendants moved to dismiss the California Action with prejudice as time-barred, consistent with this Court's opinion in Truitt. (14-CV-6190, Doc. 6.) Under CMO 22A, Plaintiff was then required to either voluntarily dismiss her case with prejudice or set forth the specific facts and/or law to distinguish her case from the Truitt Order's holding. Plaintiff did neither. Instead, she filed a notice of voluntary dismissal, without prejudice, based on the "unique circumstances of Plaintiff's situation" stemming from Plaintiff engaging two different law firms to file complaints on her behalf in California and Missouri. (Doc. 8.) Plaintiff's failure to comply with CMO 22A resulted in this Court's issuance of an Order to Show Cause ("OSC") on January 20, 2015, requiring her to explain whyher case should not be dismissed with prejudice, and specifically ordering her to comply with CMO 22A. (Doc. 10.)
On February 9, 2015, Plaintiff submitted a letter in response to the OSC, arguing that "Plaintiff is not opposed to the dismissal of the [California] Action," but that dismissal of the California Action with prejudice might preclude Plaintiff from moving forward with her nearly identical Missouri Action. (Doc. 14.) Plaintiff also argued that both the Missouri and California Actions are governed by the North Carolina statute of limitations, and therefore both actions were timely filed. Id. Arguing that "[d]ismissal with prejudice is a drastic sanction," Plaintiff proposed that this Court either dismiss the California Action without prejudice, or, in the alternative, dismiss the California Action with prejudice, "but include strong qualifying language indicating that said dismissal has absolutely no effect on the [Missouri Action]." Id.
On February 25, 2015, after hearing oral argument, this Court dismissed Plaintiff's California Action, 14-CV-6190, with prejudice and without including the "qualifying language" requested by Plaintiff. (13-MD-2434, Doc. 2150.) Further, the dismissal explicitly reserved for consideration any res judicata questions that might affect the Missouri Action. (Doc. 24 Ex. C, at 11-12.)
Defendants' sole argument in support of their motion to dismiss is that the dismissal with prejudice of the California Action precludes further litigation, and warrants dismissal, of the Missouri Action by operation of res judicata. Accordingly, this Court must decide what, if any, preclusive effect the dismissal of the California Action has on the Missouri Action.
Under the doctrine of res judicata, or claim preclusion, "[a] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could havebeen raised in that action." Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981). To establish that a claim is precluded under this doctrine, "a party must show that (1) the previous action involved an adjudication on the merits; (2) the previous action involved the plaintiffs or those in privity with them; [and] (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action." Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 285 (2d Cir. 2000) (citation omitted). Generally, the affirmative defense of res judicata is properly raised under Fed. R. Civ. P. 8(c) in a defendant's answer. Day v. Moscow, 955 F.2d 807, 811 (2d Cir. 1992). It may, however, be raised as a defense in a Rule 12(b)(6) motion without requiring an answer "when all relevant facts are shown by the court's own records, of which the court takes notice." Id.
Two related doctrines govern today's analysis. First, an MDL transferee court "applies the substantive state law, including choice-of-law rules, of the jurisdiction in which the action was filed." Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir. 1993) (per curiam). Because this case was filed in the Circuit Court of the City of St. Louis, and later removed to Missouri federal district court, Missouri's substantive state law and choice-of-law rules apply. Likewise, when I dismissed the California Action, I was applying California law. As discussed above, the California Action was filed as a diversity action in California federal court, then subsequently transferred to the Southern District of New York for consolidation in the MDL, and eventually dismissed on timeliness grounds based on California statute-of-limitations law.
Second, when determining the claim-preclusive effect of a dismissal by a federal court sitting in diversity, courts apply federal common law, which is "the law that would be applied bystate courts in the State in which the federal diversity court sits." Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508 (2001).
As the MDL transferee Court sitting in diversity, the rules of Semtek and Menowitz, together, define the unique adjudicative posture from which I decide the present motion.
Defendants argue that the present matter is governed by "a straightforward application of Second Circuit res judicata law." (Ds' Mem. at 4.) Specifically, Defendants argue that under Taylor v. Sturgell, 553 U.S. 880 (2008) - which states (in a footnote citing Semtek) that, "[f]or judgments in diversity cases, federal law incorporates the rules of preclusion applied by the State in which the rendering court sits" - New York law must apply because this Court, which dismissed the California Action, sits in New York. (Ds' Mem. at 4 (quoting Taylor, 553 U.S. at 891 n.4 (internal quotation marks omitted))). Plaintiff apparently agrees. (See Plaintiffs' Response in Opposition to Defendant's Motion to Dismiss ("P's Opp."), (Doc. 22), at 3-6) (basing arguments in opposition to Defendants' motion on Second Circuit and New York law).
But when I rendered my decision dismissing the California Action, I was sitting as a California diversity court, in line with the rule of Menowitz, which requires MDL courts to apply the state law rules, including choice of law rules, of the...
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