SAN FRANCISCO – Bristol-Myers Squibb filed a notice of removal to U.S. District Court for the Northern District of California on May 3, claiming the plaintiffs and their counsel fraudulently added another defendant to the case in which they allege injuries from taking the drug Abilify.
The motion for removal alleges the plaintiffs have fraudulently added pharmaceutical distribution company McKesson to avoid the case being consolidated with the 1,500 othersin a current multi-district litigation against Abilify.3
Bristol-Myers Squibb it court documents claims that the plaintiffs’ lawyer has filed 100 of the cases in the multi-district litigation, stating, “The allegations in the complaint are virtually identical to the over 100 individual complaints … the only material difference between those complaints and this one is that here, the complaint fraudulently joins McKesson in an effort to defeat diversity.”
The request seeks to remove the case to the U.S. District Court for the Northern District of California for diversity and asks the court to drop a plaintiff residing in New Jersey “and/or sever his claims against all defendants to perfect diversity jurisdiction” because that plaintiff cannot claim to have suffered a harm in California.
BMS launched Abilify in 2002 to treat “major depressive disorder, bipolar disorder, schizophrenia, irritability associated with autism disorder, and Tourette’s.” The plaintiffs filed their lawsuit on April 30 and BMS responded with the motion for removal on May 3.
The plaintiffs claim that McKesson distributed Abilify and added it as a defendant without any specific allegation of wrongdoing. Bristol’s motion to remove states that the plaintiffs make “threadbare allegations” to support adding McKesson, and that “Plaintiffs have not alleged any connection between conduct of McKesson and plaintiffs’ alleged injuries from Abilify.”
BMS notes that individuals and entities, under California precedent, are not liable for alleged defects of a product if that entity was not involved in the manufacture or labeling of a medication. “McKesson, which is alleged simply to be a distributor of Abilify, cannot be liable under the state law theories asserted in the complaint… plaintiffs have not stated a viable claim against McKesson.”
BMS claims that “Plaintiffs’ failure to make sufficient material and particular allegations against McKesson is indicative of fraudulent joinder.”
BMS has requested the case to be removed and demands a separate jury trial.
Bristol-Squib is represented by Sharon Mayo with Arnold & Porter Kaye Scholler LLP.
U.S. District Court for the Northern District of California, case number Case 3:18-cv-02614-MEJ