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In re Pfizer

United States District Court, C.D. California, Southern Division

May 23, 2017

IN RE PFIZER

          ORDER GRANTING PLAINTIFFS' MOTION TO REMAND

          CORMAC J. CARNEY UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This proceeding involves over 100 cases that were previously filed in California state court by thousands of women alleging that use of the drug Lipitor caused them to suffer from Type II diabetes. The cases were removed to federal court based on “mass action” jurisdiction pursuant to the Class Action Fairness Act (“CAFA”) and then consolidated under a master case number for administrative purposes. (See Attached List.) Before the Court is Plaintiffs' consolidated motion to remand the cases back to state court on the ground that 100 or more plaintiffs have not proposed that their cases be tried jointly as is required for mass action jurisdiction. (Dkt. 8 [Motion, hereinafter “Mot.”].) After considering the evidence and the arguments presented by the parties, the Court GRANTS Plaintiffs' motion to remand. Although many plaintiffs have proposed a joint trial, 100 plaintiffs have not done so.

         II. BACKGROUND

         In their original complaints filed in California state court, Plaintiffs alleged that Lipitor, a prescription drug developed and manufactured by Pfizer, Inc., and marketed and distributed by McKesson Corporation, caused them to suffer from Type II diabetes. (Id. at 3.) On August 16, 2013, three such plaintiffs filed a petition with the California Judicial Council to have their individual cases coordinated in a Joint Council Coordinated Proceeding (“JCCP”) pursuant to California Code of Civil Procedure Section 404. (Dkt. 9 [Declaration of Charles G. Orr, hereinafter “Orr Decl.”] ¶ 2; id. Ex. A.) After additional plaintiffs filed similar state court actions, a group of twenty-one plaintiffs from eight state court cases, including the three from the original petition, filed an amended coordination petition on September 25, 2013. (Id. ¶ 3; id. Ex. B Pt. 1 at 2-10 [hereinafter “Am. Pet.”].) The amended petition stated that it was “based upon the criteria codified in California Code of Civil Procedure § 404.1. That is, in the LIPITOR® cases sought to be coordinated herein:

One judge hearing all of the actions for all purposes in a selected site or sites will promote the ends of justice taking into account whether common questions of fact or law are predominating and significant to the litigation; the convenience of parties, witnesses, and counsel; the relative development of the actions and the work product of counsel; the efficient utilization of judicial facilities and manpower; the calendar of the courts; the disadvantages of duplicative and inconsistent rulings, orders, or judgments; and, the likelihood of settlement of the actions without further litigation should coordination be denied.”

(Am. Pet. at 6-7 (quoting almost verbatim the requirements of Cal. Civ. Proc. Code § 404.1) (emphasis added).) The amended petition specified that coordination would “promote the ends of justice because there are common issues of fact and law, namely the adequacy of the . . . LIPITOR® warning labels, and coordination will avoid duplicative and inconsistent rulings, orders, and judgments.” (Id. at 8.) It also stated that counsel for those twenty-one plaintiffs named in the amended petition “is informed and believes that additional LIPITOR® injury cases will be filed within the next weeks. Petitioners will seek to join these additional cases via Add-On Petitions.” (Id. at 7.)

         The memorandum of points and authorities supporting the amended petition further explained that the cases will “involve duplicative requests for the same defendant witness depositions and the same documents related to the development, manufacturing, testing, marketing and sale of LIPITOR®. Absent coordination of these actions by a single judge, there is a significant likelihood of duplicative discovery, waste of judicial resources and possible inconsistent judicial rulings on legal issues.” (Orr Decl. Ex. B Pt. 1 at 11-19 [hereinafter “MPA”] at 3; see also Id. at 7 (“[T]here will be duplicative discovery obligations upon the common defendants unless coordination is ordered. Coordination before initiation of discovery in any of these cases will eliminate waste of resources and will facilitate economy.”).) It reiterated the concern of preserving judicial resources and avoiding “duplicative and inconsistent rulings, orders, or judgments.” (Id. at 7-8.) It further represented that “issues likely to be raised in this action include issues pertaining to liability, allocation of fault and contribution, as well as the same wrongful conduct of defendants. Such difficult issues may ultimately be addressed by the California Court of Appeal. Coordination is required in order to avoid duplicative efforts and inconsistent rulings.” (Id. at 8.) The amended petition was also accompanied by an attorney declaration which stated that “[w]ithout coordination, two or more separate courts will decide essentially the same issues and may render different rulings on liability and other issues.” (Orr Decl. Ex. B. Pt. 1 at 27-32 [hereinafter “Finson Decl.”] ¶ 11.)

         On December 6, 2013, the Judicial Council granted the request for coordination and created a JCCP with the special title of “Lipitor Cases, ” but only included the three cases from the original petition in the JCCP. (Id. ¶ 4; id. Ex. C.) The JCCP was assigned to Judge Kenneth R. Freeman of Los Angeles Superior Court. (Id. ¶ 5; id. Ex. D.) On January 13, 2014, Judge Freeman entered an order granting an add-on petition whereby four plaintiffs in another state court action sought to be added to the JCCP, bringing the total number of plaintiffs in the JCCP to seven. (Orr Decl. ¶ 6; id. Ex. E.)

         The next day, Pfizer exercised an automatic peremptory challenge to Judge Freeman's assignment as coordination judge for the JCCP, (id. ¶ 7; id. Ex. F), so the JCCP was reassigned to Judge Jane Johnson, (id. ¶ 8; id. Ex. G). Judge Johnson entered orders granting add-on petitions filed by two plaintiffs who had been named in the amended coordination petition but not included in the initial order creating the JCCP, bringing the total number of plaintiffs in the JCCP to nine. (Id. ¶¶ 9-10; id. Exs. H, I.) Fifty-three more plaintiffs sought to be added to the JCCP through add-on petitions, including fifteen more plaintiffs who had been named in the amended coordination petition but not included in the initial order creating the JCCP. (Id. ¶¶ 11-13; id. Exs. J, K, L.) These petitions are still pending. Thus, to date only sixty-five plaintiffs have sought to be coordinated in the JCCP-nine were actually coordinated, fifty-three still have pending petitions, and three more were named in the amended coordination petition but have not filed add-on petitions to be coordinated after they were left out of the initial order creating the JCCP.

         On February 24, 2014, the parties had their first and only status conference in state court before Pfizer started removing the cases to federal court. (Orr Decl. Ex. M.) At the conference, counsel for the JCCP plaintiffs (hereinafter “JCCP Counsel”) provided Judge Johnson with a chart demonstrating that at that point in time, there were at least fifty-four cases concerning similar effects of Lipitor filed in California, which encompassed 1, 855 plaintiffs. (Id. at 5:20-6:4; 6:16-17.) JCCP Counsel explained that they have “had total transparency with respect to communications of lawyers both in California and nationally who had any interest in or doing anything [sic] litigation involving Lipitor, ” (id. at 7:2- 5), and presented Judge Johnson with a proposed “leadership structure” comprising of an executive committee and a steering committee to handle the rapidly-expanding litigation, (id. at 7:15-18). JCCP Counsel had also “given every lawyer who's interested at all in participating in the organizational structure and leadership, the opportunity to contact [them] and . . . enter their willingness or interest in being part of the leadership structure, ” and had not turned down a single lawyer who expressed such interest. (Id. at 11:7-17.) They further represented that they “know lawyers that are filing the cases, ” “know who is interested in participating in leadership and who's not, ” and hoped “to get the cases that have been filed obviously added on [to the JCCP] as soon as possible.” (Id. at 11:19-21, 15:22-23.) Counsel for both parties then sought clarification regarding the details of coordination, and the following exchange took place:

MR. KIESEL: And that's for discovery purposes; that they are coordinated together for discovery.
THE COURT: Right.
MR. CHEFFO: Well, would they be sent ...

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