BEFORE THE UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION ) ) ) ) ) )

Transcription

1 BEFORE THE UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION In re: Xarelto (Rivaroxaban Products Liability Litigation Kieonna Littlejohn and Audrey Oakley v. Janssen Research & Development, et al., No. 4:15-cv (E.D. Mo. MDL No DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION TO VACATE CONDITIONAL TRANSFER ORDER 12 Defendants Bayer HealthCare Pharmaceuticals Inc., Bayer HealthCare LLC, Bayer Corporation, 1 Janssen Pharmaceuticals, Inc., Janssen Research & Development, LLC, and Janssen Ortho LLC (collectively Defendants hereby oppose the Motion to Vacate CTO-12 filed by Plaintiffs Kieonna Littlejohn and Audrey Oakley (Doc The motion to vacate should be denied because Plaintiffs do not dispute that this action pending in the Eastern District of Missouri and asserting product-liability claims against Defendants relating to the prescription pharmaceutical product Xarelto shares common issues of fact with actions the Panel previously transferred to the Eastern District of Louisiana. Nevertheless, Plaintiffs resist transfer on the sole ground that the action was allegedly improperly removed to federal court. Under well-established Panel precedent, neither the pendency of a motion to remand nor the presence of jurisdictional questions is a reason to vacate a conditional transfer order. See, e.g., In re Gen. Motors LLC Ignition Switch Litig., No. 2543, 2014 WL , at *1 (J.P.M.L. Oct. 22, 2014 ( The Panel often has held that jurisdictional issues do 1 Defendant Bayer Corporation has not been served with process in this action, and joins in this opposition out of an abundance of caution and without entering a general appearance or waiving service or any other rights or defenses. 1

2 not present an impediment to transfer, as plaintiffs can present such arguments to the transferee judge.. Plaintiffs assertion that this case should not be transferred to the MDL because a magistrate judge has issued a recommendation of remand to state court (see Doc. 262 should not affect the Panel s decision. Defendants have objected to that report and recommendation under the Federal Rules of Civil Procedure, and those objections along with Plaintiffs motion to remand have not been ruled upon and remain pending before Hon. Catherine D. Perry, who, under 28 U.S.C. 636(b(1, is charged with reviewing the motion and the magistrate judge s recommendation de novo. In their Objections, Defendants have requested that Judge Perry defer ruling until this Panel decides whether transfer is appropriate. A magistrate judge s non-binding report and recommendation, subject to de novo review, should not change the Panel s practice of transferring actions to MDL courts to promote the purposes of 28 U.S.C If transfer is ordered, the transferee judge (Hon. Eldon Fallon can (and should decide Plaintiffs motion to remand, which presents issues that are likely to arise in other Xarelto actions and will ensure the just and efficient conduct of this nationwide litigation. I. BACKGROUND 1. On December 12, 2014, the Panel issued its initial Transfer Order establishing an MDL proceeding in the Eastern District of Louisiana to coordinate actions arising from allegations that plaintiffs suffered severe bleeding or other injuries as a result of taking Xarelto (rivaroxaban and that defendants did not adequately warn prescribing physicians or consumers of the risks associated with Xarelto. In re Xarelto (Rivaroxaban Prods. Liab. Litig., MDL No. 2592, 2014 WL , at *2 (J.P.M.L. Dec. 12, The Panel assigned the MDL proceeding to Judge Eldon Fallon. See id. at *3. 2

3 2. On December 12, 2014, Plaintiffs filed this action against Defendants in Missouri state court. (EDMO Doc Plaintiffs allege that they are seeking damages for personal injuries and economic damages suffered as a result of a defective and dangerous pharmaceutical product, Xarelto (rivaroxaban, which was designed, researched, developed, manufactured, tested, labeled, advertised, marketed, promoted, distributed and sold by Defendants and Defendants representatives. (Id. 1. Plaintiffs assert causes of action against Defendants for strict product liability, intentional infliction of emotional distress, negligent infliction of emotional distress, common law fraud, negligence, negligent misrepresentation, fraudulent misrepresentation, and breach of express and implied warranties. (Id Plaintiffs petition alleges the same or similar facts, and the same or similar causes of action, that are alleged in other Xarelto actions. 3. On January 28, 2015, Defendants timely removed this action from state court to the U.S. District Court for the Eastern District of Missouri. (EDMO Doc. 1. Defendants showed that no party is a resident of Missouri and that the district court had diversity jurisdiction under 28 U.S.C. 1332, not considering claims of the non-resident Plaintiff Audrey Oakley, who was improperly joined along with another non-resident plaintiff, and for which no Missouri court has personal jurisdiction over the non-resident Defendants. 4. Plaintiffs subsequently moved to remand to state court. (EDMO Doc. 18. Plaintiffs argued that the parties lack diverse citizenship because Plaintiff Oakley is a citizen of Indiana, like two of the Defendants. (Id. Defendants responded that Plaintiff Oakley s citizenship should be ignored for purposes of determining subject-matter jurisdiction (a because Missouri courts lack personal jurisdiction over Defendants with regard to her claims, (b because 2 EDMO Doc. refers to an entry on the docket in Littlejohn et al v. Janssen Research & Dev., LLC et al, No. 4:15-cv (E.D. Mo.. 3

4 she was fraudulently joined to this action, and (c because she was fraudulently and procedurally misjoined. (EDMO Doc. 21. Defendants also moved for a stay of all proceedings pending a decision from the Panel on whether this action should be transferred to the MDL proceedings. (EDMO Doc On February 4, 2015, the Panel issued CTO-12, a conditional transfer order for this action. (Doc The Panel noted that this action involve[s] questions of fact that are common to the actions previously transferred to the Eastern District of Louisiana and assigned to Judge Fallon. (Id. Plaintiffs filed a notice of opposition to CTO-12. (Doc On February 17, 2015, Magistrate Judge Nannette A. Baker, issued a report and recommendation that the case should be remanded. (EDMO Doc. 23. Later that day, this action was re-assigned to Judge Perry. As permitted under the Federal Rules of Civil Procedure, Defendants timely objected to Magistrate Judge Baker s Report and Recommendation on numerous grounds (EDMO Doc. 26, and those objections, as well as Plaintiffs motion to remand and Defendants motion to stay, have not been ruled upon and remain pending in the district court before Judge Perry. Defendants objections to the Report and Recommendation request that Judge Perry defer ruling on pending objections and motions until this Panel decides whether transfer is appropriate. 7. On February 25, 2015, Plaintiffs filed this motion to vacate CTO-12 and a supporting brief, re-arguing their motion to remand. (Docs. 262, Among other things, Plaintiffs argue that the CTO should be vacated because Magistrate Judge Baker recommended remand to state court. (Id. 4

5 II. ARGUMENT Plaintiffs motion to vacate CTO-12 should be denied. At the outset, Plaintiffs do not dispute that this action is related to the actions the Panel previously transferred to the MDL proceeding in the Eastern District of Louisiana. And there is no good reason to leave this action in the Eastern District of Missouri. The Panel has consistently held (1 that it has the authority to transfer a case in which a jurisdictional objection, including a motion to remand, is pending, and (2 that the existence of a jurisdictional objection is not an impediment to transfer. Nor should Magistrate Judge Baker s non-binding recommendation affect the Panel s decision. That recommendation must be reviewed de novo by a district court judge, and Judge Fallon is in the best position to rule upon the pending motions and objections to ensure consistency and promote efficiencies in this nationwide litigation. A. This Case Shares Common Questions Of Fact With Actions Previously Transferred To The MDL Proceeding. Plaintiffs do not dispute that this action shares common questions of fact with actions now pending in the MDL. Indeed, as the Panel recognized in CTO-12, this action involve[s] questions of fact that are common to the actions previously transferred to the Eastern District of Louisiana and assigned to Judge Fallon. (Doc All of these Xarelto actions share common factual questions arising out of allegations that plaintiffs suffered severe bleeding or other injuries as a result of taking Xarelto. In re Xarelto, 2014 WL , at *2. Plaintiffs allege that they both suffered damages as a direct result of ingestion of Xarelto. (EDMO Doc. 1-1, 2 3. Like all of the other transferred actions, this action involves allegations that Defendants designed, manufactured, and sold a defective product; that Defendants failed to provide adequate warnings about the risks associated with that product; and that the ingestion of that product caused serious injuries. The Panel established the MDL 5

6 proceeding in the Eastern District of Louisiana because of the common factual questions arising from such allegations. In re Xarelto, 2014 WL , at *2. Given Plaintiffs allegations, there can be no doubt and Plaintiffs do not dispute that this action and the previously transferred actions involve one or more common questions of fact, 28 U.S.C. 1407(a, such that this action should be transferred to the MDL in the Eastern District of Louisiana. B. Neither Plaintiffs Motion To Remand, Nor The Magistrate Judge s Report And Recommendation, Should Inhibit Transfer. Plaintiffs motion to vacate CTO-12 does not address the criteria for transfer under 28 U.S.C and rests almost entirely on the fact that a magistrate judge has recommended that the district court should remand this action to state court. (See Doc at As to substance, Plaintiffs contend that the federal courts lack jurisdiction over this action and re-argue before this Panel the jurisdictional issues, particularly Defendants assertion of fraudulent misjoinder. (See EDMO Doc. 18. Those jurisdictional questions, however, are not the issue for this Panel to decide. The question before the Panel is whether the MDL Court should decide the pending motions and objections to ensure that the purposes of Section 1407 are served. In promoting the just and efficient conduct of nationwide litigation, this Panel has repeatedly held that a pending motion to remand can and should be heard by the transferee judge and is an insufficient basis on which to vacate a conditional transfer order. See, e.g., In re Prudential Ins. Co. of Am. Sales Practices Litig., 170 F. Supp. 2d 1346, 1347 (J.P.M.L Plaintiffs, like the magistrate judge, wholly ignore Defendants arguments that Plaintiff Oakley who is not a Missouri resident and does not allege that she was prescribed Xarelto in Missouri or that she was harmed in that state was fraudulently joined in this action because her claims necessarily fail as a matter of law on the basis that no Missouri court can constitutionally exercise personal jurisdiction over Defendants with regard to her claims. 6

7 The Panel has jurisdiction to transfer a case in which a jurisdictional objection is pending. In re Ivy, 901 F.2d 7, 9 (2d Cir. 1990; accord Grispino v. New England Mut. Life Ins. Co., 358 F.3d 16, 19 n.3 (1st Cir ( The fact that there were pending jurisdictional objections did not deprive the MDL panel of the ability to transfer the case. And jurisdictional issues, such as a claimed lack of diversity or absence of a federal question, do not present an impediment to transfer, as plaintiffs can present such arguments to the transferee judge. In re Darvocet, Darvon & Propoxyphene Prods. Liab. Litig., 939 F. Supp. 2d 1376, 1377 (J.P.M.L. Apr. 17, 2013; accord In re Am. Med. Sys., Inc. Pelvic Repair Sys. Prods. Liab. Litig., 844 F. Supp. 2d 1359, 1361 (J.P.M.L ( We will not delay transfer of the... action. Plaintiffs can present their motion for remand to state court to the transferee court ; In re Fosamax (Alendronate Sodium Prods. Liab. Litig. (No. II, 787 F. Supp. 2d 1355, (J.P.M.L ( Plaintiffs... can proceed with their motion to remand to state court in the transferee district. Once transferred, the jurisdictional objections can be heard and resolved by a single court and reviewed at the appellate level in due course. Consistency as well as economy is thus served. In re Ivy, 901 F.2d at 9. Indeed, just last year, the Panel encountered a nearly identical situation in connection with In re Fresenius Granuflo/Naturalyte Dialysate Products Liability Litigation, MDL No There, the defendants removed several multi-plaintiff actions from Missouri state court to the Eastern District of Missouri on the basis that the plaintiffs had improperly joined together unrelated claims, and the defendants subsequently tagged those actions for transfer to MDL No The plaintiffs moved to remand and the defendants opposed, with both parties making 4 There is one procedural difference between this case and the Fresenius cases: there, no magistrate judge report and recommendation had issued. But that distinction is immaterial in light of the district court s de novo review of objections to a report and recommendation. See 28 U.S.C. 636(b(1. 7

8 similar arguments to those that the parties have raised in the district court here. The defendants also, like Defendants here, asked the district court to defer ruling pending a decision from the Panel on transfer to the MDL proceedings. After the Panel issued a conditional transfer order, the plaintiffs moved to vacate and, in substance, made many of the same arguments that Plaintiffs make here. 5 The Panel ultimately transferred the cases to MDL 2428 (see MDL No. 2428, Docs. 776, 795, and the transferee court ruled consistently on the various motions to remand. To be clear, Defendants do not dispute Plaintiffs observation (see Doc at 5 6 that a transferor court retains jurisdiction over the action and may dispose of a pending motion to remand at any point until the Panel transfers the action to the transferee court. But that does not mean that the Panel lacks authority to transfer the case assuming the requirements for transfer are satisfied simply because one party has asserted an objection to federal jurisdiction. Rather than address the Panel s well-settled precedent holding that the pendency of a motion to remand is no obstacle to transfer, Plaintiffs simply argue that the magistrate judge s recommendation to remand concludes the matter. See Doc But that is not right. Defendants have objected to that recommendation, and those objections along with Plaintiffs motion to remand and Defendants motion to stay pending a decision from this Panel remain pending in the district court, where Judge Perry is charged with reviewing all of the issues de novo. See 28 U.S.C. 636(b(1 ( A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. ; Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir ( A district court must make a de novo determination of those portions of a magistrate s report and 5 Cf. n.4 supra. 8

9 recommendation to which objections are made.. Although Plaintiffs opposition to this Panel s CTO re-argues the jurisdictional issues, the question of remand is up to a district court upon review of the underlying motion, not the Panel. The question here is simply whether this case should be part of the MDL that was established to promote economy and efficiency in productliability actions against Defendants relating to Xarelto. The answer to that question is yes. Allowing Judge Fallon to rule on threshold jurisdictional questions like those presented in this case and that are likely to arise in other related cases furthers the purposes of Section See In re Darvocet, 939 F. Supp. 2d at III. CONCLUSION The motion to vacate CTO-12 should be denied, and this action should be transferred to MDL No pending in the Eastern District of Louisiana. 9

10 Respectfully Submitted, /s/ F. M. Haston, III F. M. Haston, III BRADLEY ARANT BOULT CUMMINGS LLP One Federal Place 1819 Fifth Avenue North Birmingham, AL Telephone: ( Facsimile: ( Attorney for Defendants Bayer HealthCare Pharmaceuticals Inc., Bayer HealthCare LLC, and Bayer Corporation Susan M. Sharko DRINKER BIDDLE & REATH LLP 600 Campus Drive Florham Park, NJ Telephone: ( Facsimile: ( Attorney for Defendants Janssen Pharmaceuticals, Inc., Janssen Research & Development, LLC, Janssen Ortho LLC and Johnson & Johnson 10