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Ker v. Pfizer, Inc.

United States District Court, Ninth Circuit

October 22, 2013

K.E.R., a child under the age of 18 years, by INGRID M. RILEY, her mother and Guardian ad Litem, and MICHAEL R. RILEY and INGRID M. RILEY, individually, Plaintiffs,
v.
PFIZER, INC., a Delaware Corporation; PFIZER INTERNATIONAL, LLC, a New York Limited Liability Corporation; McKESSON CORPORATION, individually and d/b/a NORTHSTAR RX LLC, a Delaware Corporation; WYETH PHARMACEUTICALS, INC., and DOES 1 through 100, inclusive, Defendants.

ORDER

LAWRENCE K. KARLTON, District Judge.

Plaintiffs K.E.R. (a child under the age of 18, by her mother and guardian ad litem Ingrid M. Riley), Michael R. Reilly, and Ingrid M. Riley sue defendants Pfizer, Inc., Pfizer International LLC, Wyeth Pharmaceuticals, Inc., and McKesson Corporation d/b/a Northstar RX LLC, alleging that K.E.R. was born with congenital abnormalities as a result of Ingrid's ingestion of prescription medication Effexor during pregnancy.

Plaintiffs commenced this action in Sacramento County Superior Court, case no. 34-2013-00145082, on May 17, 2013. On July 15, 2013, defendants removed the matter to this court. (ECF No. 2.) Presently before the court are plaintiffs' motion to remand (ECF No. 11) and defendants' motion to stay this action pending a potential transfer to federal multidistrict litigation[1] (ECF No. 15). The motions are currently set for hearing on November 4, 2013 at 10:00 a.m. Having reviewed the parties' filings in support of, and in opposition to, these motions, the court will grant plaintiffs' motion to remand and deny defendants' motion to stay.

At least five other district courts in California have considered cases presenting exactly this procedural posture: A.S. v. Pfizer, Inc., No. 1:13-CV-00524-LJO-JLT, 2013 WL 2384320, 2013 U.S. Dist. LEXIS 76307 (E.D. Cal. May 29, 2013) (Thurston, M.J.); I.L. v. Pfizer, Inc., 2:13-cv-02578-RGK-PJW, slip op. (C.D. Cal. Jun. 6, 2013) (Klausner, J.); Taha v. Pfizer, Inc., No. 2:13-cv-02577-MWF-FFM, slip op. (C.D. Cal. July 1, 2013) (Fitzgerald, J.); Hatherley v. Pfizer, Inc., No. CIV. 2:13-00719-WBS-CKD, 2013 WL 3354458, 2013 U.S. Dist. LEXIS 93943 (E.D. Cal. Jul. 3, 2013) (Shubb, J.); D.R. v. Pfizer, Inc., No. 8:13-cv-00591-AG-JPR (C.D. Cal. Jul. 23, 2013) (Guilford, J.).[2] To wit, the plaintiffs in each of these actions brought suit in California state court against Pfizer, Inc., Pfizer International LLC, Wyeth Pharmaceuticals, Inc., and McKesson Corporation, alleging a minor's injury or wrongful death due to the mother's prenatal ingestion of Effexor; the defendants removed each action to federal court, contending that plaintiffs fraudulently joined defendant McKesson Corporation in order to defeat diversity jurisdiction; plaintiffs moved to remand on the basis that the joinder was not fraudulent, and therefore, federal jurisdiction on the basis of complete diversity did not exist; and defendants moved to stay pending transfer to the MDL. And in each of these cases, the district court remanded the action.[3]

Having carefully reviewed the parties' filings herein, the court sees no reason to order otherwise. In reaching this conclusion, the court follows Hatherley, supra, in which Judge Shubb, after a thorough analysis, concluded that the plaintiffs had sufficiently alleged a cause of action against McKesson Corporation for strict liability under a "failure to warn" theory, thereby destroying complete diversity and divesting the federal courts of diversity jurisdiction. Defendants herein have failed to adduce any arguments not addressed in Judge Shubb's order, and the court therefore finds no reason to reach a different conclusion.

Accordingly, the court hereby orders as follows:

[1] Plaintiffs' motion to remand is GRANTED. This matter is hereby REMANDED to the Superior Court of California for the County of Sacramento.
[2] Defendants' motion to stay the proceedings is DENIED.
[3] The clerk of the court is DIRECTED to close this case.

IT IS SO ORDERED.


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