Patricia Lewis v. Pfizer, Inc.
2:14-cv-01848
| C.D. Cal. | May 23, 2017Background
- Hundreds of California state-court suits (over 140 actions, ~4,800 plaintiffs total) alleged Lipitor caused Type II diabetes; many were coordinated via a Judicial Council Coordinated Proceeding (JCCP) titled “Lipitor Cases.”
- Plaintiffs filed an amended coordination petition seeking coordination “for all purposes” and represented they would seek to add additional cases via add-on petitions; the JCCP initially included only three cases and later a total of nine after add-ons; 53 add-on petitions remain pending.
- At a February 2014 status conference JCCP counsel presented a list of many additional Lipitor cases and expressed intent to add them to the JCCP, but the state-court add-on procedure required affirmative add-on filings (and allowed opposition) before cases would be added.
- Pfizer removed the cases to federal court under CAFA’s mass-action provision (28 U.S.C. § 1332(d)(11)) claiming the monetary claims of 100+ plaintiffs were proposed to be tried jointly; cases were transferred to MDL, which rejected diversity grounds and recommended remand; matters returned to this district.
- Plaintiffs moved to remand, arguing fewer than 100 plaintiffs had voluntarily and affirmatively proposed a joint trial; the district court granted remand because only 65 plaintiffs had made such proposals via the amended petition or add-on petitions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a coordination petition that requests coordination "for all purposes" constitutes a proposal to try cases jointly under CAFA | The amended petition sought only coordination for pretrial discovery; plaintiffs did not propose a joint trial for 100+ plaintiffs | The amended petition and JCCP counsel’s statements constituted a proposal to try claims jointly (including intentions to add many more plaintiffs), satisfying CAFA’s proposal requirement | The petition did propose joint trials (Corber controls on "for all purposes" language), but that proposal was made only on behalf of the plaintiffs named in the petition/add-ons, not all Lipitor plaintiffs |
| Whether 100 or more plaintiffs proposed joint trial (who must make the proposal) | Only plaintiffs who filed express add-on petitions or were named in the amended petition voluntarily proposed joint trial; that number is 65, below CAFA’s 100 threshold | JCCP counsel’s public statements, coordination procedures, case cover sheets, and the judge’s assignment implied that 100+ plaintiffs were proposed to be tried jointly | Held that only the 65 plaintiffs who affirmatively sought coordination proposed joint trial; CAFA’s 100-plaintiff threshold not met, so no mass-action jurisdiction |
| Whether counsel’s statements or administrative filings (civil cover sheets, notices of related cases) suffice as affirmative proposals | Such administrative or predictive statements are insufficient; the clients themselves must voluntarily propose joint trial | JCCP counsel’s communications and filings reasonably indicated intent to bind additional plaintiffs and thus satisfy the "proposal" requirement | Court held administrative filings and counsel’s general statements do not substitute for each plaintiff’s voluntary and affirmative proposal |
| Whether the state judge’s coordination order itself constituted a proposal to try 100+ plaintiffs jointly | The judge’s order required add-on procedures and did not automatically bind plaintiffs; thus it did not constitute a 100+ plaintiff proposal | Defendant argued the judge’s assignment and order effectively proposed joint trial for all related Lipitor cases | Court held the judge’s order did not itself propose a joint trial of 100+ plaintiffs because add-on procedures required affirmative inclusion of each case |
Key Cases Cited
- Corber v. Xanodyne Pharm., Inc., 771 F.3d 1218 (9th Cir. 2014) (petition seeking coordination "for all purposes" can constitute a voluntary proposal to try cases jointly under CAFA)
- Briggs v. Merck Sharp & Dohme, 796 F.3d 1038 (9th Cir. 2015) (a proposal for CAFA mass-action jurisdiction must be a voluntary, affirmative act; defendants’ actions alone are insufficient)
- Tanoh v. Dow Chem. Co., 561 F.3d 945 (9th Cir. 2009) (distinguishing mass actions from class actions and addressing coordination/removal issues)
- Scimone v. Carnival Corp., 720 F.3d 876 (11th Cir. 2013) (proposal must be more than a mere prediction; it must be an affirmative act)
- Parson v. Johnson & Johnson, 749 F.3d 879 (10th Cir. 2014) (treating a proposal as a voluntary, intentional act for CAFA purposes)