GREEN v. BRISTOL-MYERS SQUIBB COMPANY, 3:18-cv-01494

Background

Over 2,000-case MDL involving the antipsychotic Abilify (aripiprazole); plaintiffs filed 21 separate California Superior Court actions (April–Aug 2018) asserting product-liability and related state-law claims against Bristol-Myers Squibb (BMS), McKesson, Otsuka America Pharmaceutical (OAPI), and Otsuka Pharmaceutical Co. (OPC).
McKesson is a California-citizen defendant; defendants removed all 21 California complaints to federal court asserting diversity jurisdiction and alleging McKesson was fraudulently joined.
Plaintiffs’ California complaints allege, inter alia, strict liability/failure-to-warn based on risks (compulsive behaviors) and that McKesson participated in marketing, distribution, and sale of the pills causing plaintiffs’ injuries.
The MDL court applied the Eleventh Circuit fraudulent-joinder standard, which places a heavy burden on the removing party to show there is no possibility that a state court would find a viable claim against the non-diverse defendant.
The court found plaintiffs’ allegations against McKesson sufficient under California pleading rules to state a potentially viable failure-to-warn strict liability claim and rejected defendants’ arguments that such claims are foreclosed as a matter of California law.
The court held that federal conflict preemption (impossibility) is a merits defense, not a jurisdictional basis for removal, and that plaintiffs’ stated intent to pursue McKesson in state court was bona fide; because McKesson was properly joined, diversity was destroyed and remand was required.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Fraudulent joinder — adequacy of pleading against McKesson	Complaints sufficiently allege McKesson marketed/distributed the specific product and failed to warn, pleading facts (some on belief) adequate under Cal. law	Allegations are generic or insufficient; plaintiffs didn’t specifically tie McKesson to the pills that caused injury	Pleadings sufficiently allege a causal link and meet California standards; joinder not fraudulent
Viability of strict liability against pharmaceutical distributor	California law generally imposes strict liability on all chain participants; no California authority clearly exempts distributors from strict liability for defective drugs	Distributors cannot be strictly liable for FDA-approved prescription drugs (invoking Comment K and related arguments)	State law unsettled; weight of authority permits possibility of distributor liability; doubts resolved in favor of remand
Federal preemption (impossibility) defense	N/A (plaintiffs oppose)	Distributor is effectively powerless to change label; PLIVA/Bartlett logic should preempt state failure-to-warn claims against distributors	Preemption here is conflict (merits) preemption, not complete preemption; court lacks jurisdiction to resolve it on removal; must be addressed in state court
Plaintiffs’ intent to pursue McKesson to judgment	Plaintiffs have good-faith intent and promptly added McKesson after learning of its role; counsel’s unequivocal representation supports intent	Plaintiffs’ litigation conduct shows lack of intent to pursue non-diverse defendant (pointing to limited discovery and MDL strategy)	Court accepts plaintiffs’ good-faith intent; no basis to find joinder fraudulent based on intent

Key Cases Cited

Martin v. Franklin Capital Corp., 546 U.S. 132 (2005) (remand required if federal court lacks jurisdiction)
Leonard v. Enterprise Rent-A-Car, 279 F.3d 967 (11th Cir. 2001) (burden on removing party to establish jurisdiction)
Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405 (11th Cir. 1999) (removal statutes construed strictly; doubts favor remand)
Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365 (1978) (complete diversity requirement)
Triggs v. John Crump Toyota, Inc., 154 F.3d 1284 (11th Cir. 1998) (fraudulent joinder doctrine and its grounds)
Crowe v. Coleman, 113 F.3d 1536 (11th Cir. 1997) (heavy burden to show fraudulent joinder)
Stillwell v. Allstate Ins. Co., 663 F.3d 1329 (11th Cir. 2011) (clear-and-convincing standard; resolve doubts for plaintiff)
Pacheco de Perez v. AT&T Co., 139 F.3d 1368 (11th Cir. 1998) (fraudulent joinder inquiry based on pleadings at removal)
PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011) (impossibility preemption for generic manufacturers)
Mut. Pharm. Co. v. Bartlett, 570 U.S. 472 (2013) (state-law design-defect claims preempted as impossible for generics)
Wyeth v. Levine, 555 U.S. 555 (2009) (brand manufacturers can strengthen warnings; state claims not preempted)
Murphy v. E.R. Squibb & Sons, Inc., 40 Cal.3d 672 (1985) (California created pharmacist exception; not extended to distributors)