Vanny v. Bristol-Myers Squibb Co. (In re Plavix&reg)

IN RE PLAVIX® PRODUCT LIABILITY AND MARKETING LITIGATION

Relates to Cases:

Ravy Vanny, et al. v. Bristol-Myers Squibb Company, et al.

Michael Arnold, et al. v. Bristol-Myers Squibb Company, et al.

John Belinda, et al. v. Bristol-Myers Squibb Company, et al.

Irving Arenberg, et al. v. Bristol-Myers Squibb Company, et al.

Sandra Kinney, et al. v. Bristol-Myers Squibb Company, et al.

Bennie Burman, et al. v. Bristol-Myers Squibb Company, et al.

Wauneta Raynor, et al. v. Bristol-Myers Squibb Company, et al.

George Robinson, et al. v. Bristol-Myers Squibb Company, et al.

Iris Meeks, et al. v. Bristol-Myers Squibb Company, et al.

Jack Olmstead, et al. v. Bristol-Myers Squibb Company, et al.

George Dillard, et al. v. Bristol-Myers Squibb Company, et al.

Virgil Walden, Jr., et al. v. Bristol-Myers Squibb Company, et al.

Damon Kaluza, Sr., et al. v. Bristol-Myers Squibb Company, et al.

Vertus Corkerin, et al. v. Bristol-Myers Squibb Company, et al.

James Aiken, et al. v. Bristol-Myers Squibb Company, et al.

Ardean Lowery, et al. v. Bristol-Myers Squibb Company, et al.

Michael Farmer, et al. v. Bristol-Myers Squibb Company, et al.

Elizabeth Abney, et al. v. Bristol-Myers Squibb Company, et al.

Franklin Addison, et al. v. McKesson, A California Corporation, et al.

Alfonso Aguilar, et al. v. Bristol-Myers Squibb Company, et al.

Philip Agulay, et al. v. Bristol-Myers Squibb Company, et al.

Neil Alford, et al. v. Bristol-Myers Squibb Company, et al.

Gary Baez, et al. v. Bristol-Myers Squibb Company, et al.

Fred Baird, et al. v. Bristol-Myers Squibb Company, et al.

Vondell Bankert, et al. v. Bristol-Myers Squibb Company, et al.

Banks, et al. v. Bristol-Myers Squibb Company, et al.

James Blair, et al. v. Bristol-Myers Squibb Company, et al.

Peggy Boatright, et al. v. Bristol-Myers Squibb Company, et al.

Brown, et al. v. Bristol-Myers Squibb Company, et al.

Patricia Buck, et al. v. Bristol-Myers Squibb Company, et al.

Edward Bustamante, et al. v. Bristol-Myers Squibb Company, et al.

Davis, et al. v. Bristol-Myers Squibb Company, et al.

Michael Diercks, et al. v. Bristol-Myers Squibb Company, et al.

Bella Docks, et al. v. Bristol-Myers Squibb Company, et al.

Larry Douglas, et al. v. Bristol-Myers Squibb Company, et al.

Lawrence Evans, et al. v. Bristol-Myers Squibb Company, et al.

Dorothy Gibson, et al. v. Bristol-Myers Squibb Company, et al.

Green, et al. v. Bristol-Myers Squibb Company, et al.

Dale Guinn, et al. v. Bristol-Myers Squibb Company, et al.

Pamela Harris, et al. v. Bristol-Myers Squibb Company, et al.

Kenneth Howell, et al. v. Bristol-Myers Squibb Company, et al.

Howard Jones, et al. v. Bristol-Myers Squibb Company, et al.

Zelda Justice, et al. v. Bristol-Myers Squibb Company, et al.

Eddie Kessel, et al. v. Bristol-Myers Squibb Company, et al.

Sher Khan, et al. v. Bristol-Myers Squibb Company, et al.

Philip Lopresti, et al. v. Bristol-Myers Squibb Company, et al.

Jose Marrero, et al. v. Bristol-Myers Squibb Company, et al.

Mary Mathis, et al. v. Bristol-Myers Squibb Company, et al.

Frances McGuire, et al. v. Bristol-Myers Squibb Company, et al.

Meyer, et al. v. Bristol-Myers Squibb Company, et al.

Randall Ritchey, et al. v. Bristol-Myers Squibb Company, et al.

Leon Roberson , et al. v. Bristol-Myers Squibb Company, et al.

Dolly Sanders, et al. v. Bristol-Myers Squibb Company, et al.

Search, et al. v. Bristol-Myers Squibb Company, et al.

Terry, et al. v. Bristol-Myers Squibb Company, et al.

David Wilkerson, et al. v. Bristol-Myers Squibb Company, et al.

Helen Yuan, et al. v. Bristol-Myers Squibb Company, et al.

MDL No. 3:13-cv-2418-FLW

3:13-cv-03610-FLW-TJB

3:13-cv-03612-FLW-TJB

3:13-cv-03613-FLW-TJB

3:13-cv-03614-FLW-TJB

3:13-cv-03647-FLW-TJB

3:13-cv-03648-FLW-TJB

3:13-cv-03649-FLW-TJB

3:13-cv-03651-FLW-TJB

3:13-cv-03652-FLW-TJB

3:13-cv-03654-FLW-TJB

3:13-cv-03655-FLW-TJB

3:13-cv-03656-FLW-TJB

3:13-cv-03657-FLW-TJB

3:13-cv-03658-FLW-TJB

3:13-cv-03732-FLW-TJB

3:13-cv-03941-FLW-TJB

3:13-cv-03942-FLW-TJB

4:13-cv-04213-FLW-TJB

3:13-cv-02166

3:14-cv-02817

3:14-cv-01374

3:14-cv-0436

3:14-cv-01735

3:14-cv-00637

3:13-cv-7750

3:13-cv-5313

3:14-cv-04259

3:13-cv-5309

3:14-cv-4257

3:14-cv-03496

3:13-cv-07883

3:13-cv-04784

3:13-cv-01264

3:13-cv-07237

3:13-cv-05912

3:13-cv-4258

3:13-cv-04785

3:13-cv-04786

3:13-cv-04780

3:13-cv-5316

3:13-cv-04783

3:13-cv-05944

3:14-cv-748

3:13-cv-5327

3:13-cv-05314

3:13-cv-07749

3:13-cv-04815

3:13-cv-07882

3:13-cv-05311

3:13-cv-4299

3:13-cv-04894

3:13-cv-5276

3:14-cv-4260

3:14-cv-4261

3:13-cv-3649

3:13-cv-5413

3:13-cv-7664

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

September 12, 2014

*NOT FOR PUBLICATION

OPINION

WOLFSON, United States District Judge:

The captioned cases, which have been transferred to this Court as part of a Multi-District Litigation ("MDL"), arise from alleged wrongful acts, omissions, and fraudulent representations by Bristol-Meyers Squibb Co. ("BMS"); Sanofi-Aventis U.S. LLC., Sanofi-Aventis U.S. Inc., and Sanofi-Synthelabo, Inc. ("Sanofi") (collectively the "Moving Defendants"); and McKesson Corporation ("McKesson")¹ with respect to the manufacturing and marketing of the drug Plavixby BMS and Sanofi, and the marketing and distribution of Plavix by McKesson. Plaintiffs, as set forth in the above caption, are individuals who ingested Plavix and allegedly suffered injuries as a result, as well as the spouses of these individuals. Initially, these Plaintiffs brought suit in the California State Superior Court in San Francisco;² however, upon removal by BMS and Sanofi to the United States District Court for the Northern District of California, these cases³ were transferred to this Court by the Multi-District Litigation Panel as part of the In re Plavix MDL, assigned to me. Before this Court is an omnibus motion to remand these cases to state court. For the reasons that follow, the motion is GRANTED.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Between 2012 and 2014, Plaintiffs filed these instant actions, involving numerous individual plaintiffs from forty-five states, Ontario, and Puerto Rico, in the California State Superior Court located in San Francisco, California. In each of these Complaints multiple plaintiffs are joined, and at least one named plaintiff is from New York, New Jersey, or Delaware. As for the citizenship of Defendants: BMS is headquartered in New York; Sanofi-Aventis U.S. LLC and Sanofi-Aventis U.S., Inc. are French companies with their American headquarters in New Jersey; Sanofi-Synthelabo, Inc. is a Delaware corporation with its headquarters in New York; and McKesson is a Delaware corporation with its headquarters in California. As such, because there is at least one non-diverse plaintiff (the majority of the cases have more than one non-diverseplaintiff) in each of these cases, on the face of these Complaints, complete diversity is lacking.

Nevertheless, BMS and Sanofi removed all of these cases to the District Court for the Northern District of California based on fraudulent misjoinder and fraudulent joinder. Thereafter, in June 2013, the Judicial Panel on Multidistrict Litigation transferred these matters to this Court as part of the In re Plavix MDL. Subsequently, Plaintiffs filed the instant omnibus motion to remand to California State Superior Court.

Because these Complaints are all similar in nature, the Court will recount general facts as pled in Ravy Vanny, et al. v. Bristol-Myers Squibb Company, et al., No. 13-3610 (FLW), and take them as true for the purposes of this motion. The Complaints allege personal injuries arising from the ingestion of Plavix by Plaintiffs and loss of consortium claims by some spouses. According to Plaintiffs, Plavix was heavily marketed directly to consumers through television, magazine and internet advertising. Compl. at ¶ 79. Plaintiffs claim that the drug was represented by Defendants as providing greater cardiovascular benefits, while being safer and easier on a person's stomach, than a more expensive aspirin regimen. Id. In reality, Plaintiffs allege, Plavix is not more effective than aspirin in preventing heart attacks and strokes. Id. at ¶ 80. In fact, according to Plaintiffs, the growing body of scientific knowledge has established that the four-dollar Plavix pill is no better than the four-cent-a-day aspirin pill, and, after taking Plavix, the risk of suffering a heart attack, stroke, internal bleeding, blood disorder, or death outweighs any potential benefit. Id. at ¶¶ 90-94.

Defendants allegedly knew that Plavix was not a better alternative to aspirin, and Defendants allegedly knew or should have known of the injuries associated with taking Plavix, but nonetheless, continued to distribute and market the drug without providing corresponding warnings. Id. at ¶¶ 80-81. Plaintiffs further aver that Defendants, through their drug representatives and promotional efforts, also encouraged physicians to prescribe Plavix to a broadpopulation of people who would receive the same therapeutic benefit from aspirin alone, and to use Plavix for unapproved applications. Id. at ¶ 89.

As a result of these alleged wrongful acts, omissions, and fraudulent representations by Defendants, Plaintiffs assert, inter alia, various product liability and fraud claims against BMS, Sanofi, and McKesson, collectively. Specifically, Plaintiffs bring state law claims of: (1) design defect; (2) manufacturing defect; (3) negligence; (4) breach of implied warranty; (5) breach of express warranty; (6) deceit by concealment under California law; (7) negligent misrepresentation; (8) fraud by concealment; (9) violations of California Business & Professions Code § 17200; (10) violations of California Business & Professions Code § 17500; (11) violations of the California Consumers Legal Remedies Act; and (12) wrongful death. Importantly, Plaintiffs do not assert any federal claims. Therefore, the only basis upon which the Moving Defendants removed these actions is diversity. On this motion, while Plaintiffs argue that removal was improper because complete diversity is lacking, the Moving Defendants submit that removal is appropriate because defendant Mckesson...