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In re Lipitor

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

May 10, 2018

IN RE LIPITOR

          ORDER GRANTING PLAINTIFFS' MOTION TO REMAND

          CORMAC J. CARNEY UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This action involves 156 lawsuits filed in California state court by more than 4, 300 Plaintiffs who allege that use of the drug Lipitor caused them to suffer from Type II diabetes. On March 1, 2018, Defendant Pfizer, Inc. ("Pfizer"), removed the lawsuits to this Court based on "mass action" jurisdiction pursuant to the Class Action Fairness Act ("CAFA"). This was Pfizer's second removal of many of the lawsuits to federal court. Pfizer first removed the cases beginning on March 12, 2014, but on May 23, 2017, the Court found that removal was improper under CAFA and remanded the cases back to state court. Specifically, the Court found that 100 or more Plaintiffs had not proposed that their cases be tried jointly as is required for mass action jurisdiction. (See In re: Pfizer, Case No. SAMC 17-00005-CJC-JPRx at Dkt. 20 [hereinafter, "May 23, 2017 Order"].)

         Pfizer claims that since the Court remanded the lawsuits, new developments have occurred that justify another removal of the cases to federal court based on mass action jurisdiction. (Dkt. 1 [Notice of Removal] at 2.) Plaintiffs disagree and have filed a motion to remand. (Dkt. 56 [hereinafter, "Mot."].) After considering the record and arguments presented by the parties, the Court GRANTS Plaintiffs' motion to remand. Again, there has been no proposal for a joint trial involving 100 or more plaintiffs as required under CAFA.[1]

         II. BACKGROUND

         A. Original Remand

         Plaintiffs are 4, 321 individuals who are party to 156 separate lawsuits filed in California state court. (Dkts. 1 at 1, 1-2 at Ex. A.) Plaintiffs allege that Lipitor, a prescription drug developed and manufactured by Pfizer, and marketed and distributed by McKesson Corporation, caused them to suffer from Type II diabetes. (See Dkt. 1-2 at Ex.B-1.)

         Beginning in March 2014, Pfizer removed the lawsuits to this Court, invoking the mass action provision of CAFA. (Mot. at 2.) The mass action provision extends federal removal jurisdiction to civil cases where the claims of 100 or more plaintiffs "are proposed to be tried jointly." 28U.S.C. § 1332(d)(ll)(B)(i). On May 23, 2017, the Court found that removal under the mass action provision was improper, and granted Plaintiffs' motion to remand. (May 23, 2017 Order.) The Court explained that only 65 Plaintiffs had proposed a joint trial by joining or seeking to join a petition to coordinate their cases in a Joint Council Coordinated Proceeding ("JCCP") pursuant to California Code of Civil Procedure section 404. (Id. at 11.) The Court held that the 65 Plaintiffs who voluntarily sought to join the JCCP had proposed a joint trial, but because 100 Plaintiffs had not done so, the requirements of mass action jurisdiction were not met. (Id. at 10-11.) Pfizer appealed this order, but the Ninth Circuit denied review.

         B. Plaintiffs Attempt to Amend the JCCP Procedure

         On June 27, 2017, back in California state court, Plaintiffs made a request to amend the procedure by which Plaintiffs could join the JCCP. (Mot. at 3.) Plaintiffs wanted to clarify that by joining the JCCP, they sought to coordinate pretrial proceedings but were not proposing a joint trial. (Id.) Pfizer opposed this request and argued that it conflicted with California's coordination statute, California Code of Civil Procedure section 404. (Dkt. 56-5.) On August 4, 2017, the JCCP court, Judge Carolyn Kuhl, issued an order declining to implement Plaintiffs' requests. (See Dkt. 56-11.) In her order, Judge Kuhl explained that she "does not have ... a stake in how the federal courts interpret CAFA." (Id. at 3.) Nevertheless, she noted that it was appropriate to explain the coordination procedures of her court to aid federal courts "seek[ing] to understand California state court coordination procedures in order to apply federal law." (Id. at 3-4.) Judge Kuhl then proceeded to explain the following procedures:

California law contemplates that cases will be coordinated for all purposes, not merely for pretrial proceedings. (Code of Civil Procedure section 404.1.) California procedure for coordinated cases differs in this respect from federal multidistrict litigation procedures. In MDL proceedings, cases must be returned to the federal district where they were originally filed when the case is ready to begin trial. (28 U.S.C. section 1407.) [. . .] Nevertheless, the fact that the [state court] coordination trial judge has the authority to try coordinated cases herself does not mean that the coordination trial judge will conduct the trial in all (or even some) of the coordinated cases, and assuredly does not mean that the coordinated cases will be tried together, either at the same time or before one jury. Coordination is a very flexible structure for case management. The ultimate goal for the coordination trial judge is to manage the coordinated complex cases in accordance with the complex case management rules so as to expedite the case, keep costs reasonable, and promote effective decision making by the court, the parties and counsel. (CRC 3.400(a).) [. . .] The ultimate determination of which cases in a coordinated proceeding will be tried by the coordination trial judge is dictated by promotion of the ends of justice.

Id. at 3-5.) Judge Kuhl then explained that where, as here, the cases involved thousands of plaintiffs alleging injuries against pharmaceutical manufacturers, coordinated proceedings have never led to joint trials:

In the 17 years since the Complex Litigation Program has been in place in California, this court is unaware of any instance in which the claims of more than one party allegedly injured by taking a pharmaceutical product have been tried at the same time or to the same jury, except in wrongful death cases where the claims of the survivors of one injured person have been tried together. Coordinated proceedings involving cases against pharmaceutical manufacturers have included more than 10, 000 plaintiffs in some instances. If bellwether trials (as well as pretrial definition of issues) are unsuccessful in guiding the parties to inventory settlements, it has always been clear to the judges of the Complex Litigation Program that the coordination trial judge will have to remand cases for trial by the ...

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