Sunday, August 9, 2015

Ninth Circuit: Merck Unable To Force Five Non-Consenting CA State Court Plaintiffs Into Federal Court (Yet)

The federal civil procedural nuances are quite complicated here, but what the federal appellate courts sitting in California held, late this past week, is that if a plaintiff alleges injury, and chooses state court as the forum to bring the action, it is not automatically the right of the defendant (Merck) to remove the case to federal court (absent other considerations, like complete diversity of citizenship), and join it to a pending federal MDL. [Last year's backgrounder, here.]

Again, these are still the early stage maneuvers, in the overall incretin mimetic MDL litigation, but these five cases, for now, will not be shoved onto the federal trial court docket in San Diego. Overall, it matters only slightly to Kenilworth, but here is the opinion (as a 31 page PDF file), and the court's reasoning:

. . . ."[T]here is no indication that Congress’s purpose in enacting CAFA was to strip plaintiffs of their ordinary role as masters of their complaint and allow defendants to treat separately filed actions as one action regardless of plaintiffs’ choice." Scimone, 720 F.3d at 885; see Tanoh, 561 F.3d at 953. . . .

"In this case, concluding that plaintiffs’ claims fall outside CAFA’s removal provisions is not absurd, but rather is consistent with. . . the well-established rule that plaintiffs, as masters of their complaint, may choose their forum by selecting state over federal court . . . ."

Incretin mimetics, like Merck's Januvia® (sitagliptin phosphate), are suspected by some medical practitioners and researchers, of being associated with increased risks of pancreatitis -- and perhaps even certain cancer risks. But "suspected" is the key word, there. As of the moment, there appears to be no gold standard, independently rigorous study linking the increased risk of cancer claimed by some, to any incretin mimetic regimen of any particular drug manufacturer. And, while it is true that judicial resources are often well-economized in federal MDL proceedings, there hasn't yet been a binding determination that these cases (over 900 of them, according to page 22 of the just filed SEC Form 10-Q) are appropriately similar -- to allow for an imposed MDL, on all plaintiffs.

All in all, a perfect post-workout Sunday -- so. . . onward we go.

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