The opinion of the court was delivered by: Judge David R. Herndon
The Court has numerous remand motions pending in its docket in actions (such as the above captioned member actions) involving a distributor defendant, McKesson Corporation ("McKesson"), that were originally brought in a California state court, removed to a California district court, and transferred to this Multidistrict Litigation ("MDL"). In some instances, the remand motions were docketed prior to transfer to this MDL, with the responsive briefing at various stages of completion. In other instances, remand motions were docketed after the member action was transferred to this MDL.
The Court initially hoped to resolve the above captioned remand motions (and other similar motions still pending on the Court's docket) by ruling on one representative remand motion. Thus, in May 2010, the Court considered one of the fully briefed remand motions and issued an order denying Plaintiff's motion to remand (3:10-cv-20095 Doc. 52). In June 2010, the Court issued an order denying Plaintiff's motion to reconsider the denial of her motion to remand (3:10-cv-20095 Doc. 61). After issuance of the remand Orders in May and June, the Court delayed consideration of the remand motions pending in similarly situated member actions to allow the parties an opportunity to independently resolve issues pertaining to remand based on the principles discussed in the remand orders issued in May and June 2010.
Unfortunately, only a handful of member actions have been able to independently resolve the question of remand (filing notices of withdrawal of remand motion or stipulations of remand)(See e.g., 3:10-cv-20241 Doc. 32 (parties consenting to remand action to state court based on principles announced inremand orders issued by the Court in May and June 2010)). A majority of the parties in similarly situated member actions, however, have been unable to reach an agreement on the question of remand. In these cases, many of the parties have filed additional responses and replies arguing for and against remand based on the remand orders the Court issued in May and June 2010.*fn1
Presently, the Court is in the process of considering each pending remand motion and issuing orders resolving the questions raised therein. This Order, addressing the above captioned member actions, is the first in what will be a series of orders addressing the remand motions pending in cases involving McKesson that were transferred from California District Courts.
II. BACKGROUND A. McKesson Corporation
McKesson, a California citizen,*fn2 is a wholesale distributor of prescription medications that purchases YAZ/Yasmin and sells it to retail pharmacies. McKesson's California citizenship is significant for two reasons. First, the above captioned actions were originally brought in California state court. Accordingly, the propriety of removal under the forum defendant rule must be considered. Second, in some instances, the above captioned actions involve Plaintiffs who are also citizens of California, and thus, complete diversity is in issue. Defendants argue that the citizenship of McKesson should be ignored in all of the above captioned actions because McKesson has been fraudulently joined.
B. The Orders Pertaining to Remand Issued in Jankins v. Bayer Corp. et al., 3:10-cv-20095-DRH-PMF
Pursuant to discussions with leadership counsel during monthly conferences, the Court understood that the motions to remand to California state court were largely based on the same issues. Accordingly, in an effort to conserve judicial resources and to reduce turnaround time, the Court elected to rule on one representative motion. The Court hoped that this would allow the parties to independently resolve the remaining remand motions by filing stipulations or other pleadings based on the principles expressed in the Court's remand decision.
The representative motion the Court ruled on was filed in Jankins v. Bayer Corp. et al., (3:10-cv-20095) ("Jankins"). In Jankins,the Plaintiff, a California citizen,originally brought her action in the California Superior Court, Riverside County, for damages related to a myocardial infarction allegedly caused by the drug marketed as Yaz (3:10-cv-20095 Doc. 1 & 30). Plaintiff named numerous Bayer entities (all non-California citizens) and McKesson. Plaintiff's action was removed to the district court for the Central District of California based on diversity of citizenship (3:10-cv-20095 Doc. 1 pp. 2-4 && 1-13). The removing Defendants alleged that McKesson had been fraudulently joined, and therefore, its citizenship should be disregarded (3:10-cv-20095 Doc. 1 p. 4 & 13). Thereafter, the action was transferred to this MDL (3:10-cv-20095 Doc. 36).
Plaintiff filed a motion to remand to state court arguing that diversity jurisdiction did not exist because both Plaintiff and McKesson are California citizens (3:10-cv-20095 Doc. 45).The Bayer Defendants responded in opposition, arguing that McKesson's citizenship should be disregarded for diversity purposes because McKesson was fraudulently joined (3:10-cv-20095 Doc. 49). The Bayer Defendants' fraudulent joinder argument was twofold: First, they asserted that there was no reasonable possibility that McKesson, a distributor of pharmaceuticals, could be held liable under California law. Second, they contended, even if a claim could stand against McKesson, the Plaintiff's Complaint failed to plead sufficient facts against McKesson.
On May 14, 2010, the Court entered an order denying the Jankins'remand motion (3:10-cv-20095 Doc. 52). As to the first argument, the Court found that a pharmaceutical distributor such as McKesson could be held liable under California law. As to the second argument, the Court found that causation is a requisite element of any claim directed against McKesson and that to sufficiently allege causation Plaintiff must assert that McKesson supplied the pills that caused her alleged injuries.
Because the Plaintiff in Jankins failed to plead that McKesson supplied the subject drugs, the Court concluded that it had no choice but to find that McKesson had been fraudulently joined (3:10-cv-20095 Doc. 52). In June 2010, the Court considered and denied Plaintiff's motion to reconsider the order denying remand (3:10-cv-20095 Doc. 61). As the Court explained in its order denying Plaintiff's motion to reconsider:
[T]o sufficiently allege a claim against McKesson, Plaintiff must allege that McKesson was an entity within the chain of distribution -- put another way, Plaintiff must allege that McKesson supplied the subject matter drugs to the Plaintiff.Plaintiff's Complaint fails to do this. The Complaint merely alleges that McKesson was a distributor of the subject matter drugs...Alleging that McKesson was a distributor of the subject matter drugs is not the equivalent of alleging that McKesson was the distributor that supplied the drugs that allegedly caused Plaintiff's injuries. Absent such an allegation, there can be no causal connection between McKesson and Plaintiff's alleged injuries and the Court must conclude that Plaintiff has not sufficiently pled a claim against McKesson.
The Court also concluded that Plaintiff's boilerplate allegations as to "Defendants" did not sufficiently plead a claim against McKesson. Throughout the Complaint, Plaintiff made allegations against "Defendants" generally (grouping McKesson with the Bayer Defendants), rather than directing allegations against McKesson specifically. For example:
The Defendants were in the business of researching, designing, developing, licensing, compounding, testing, producing, manufacturing, assembling, processing, packaging, inspecting, labeling, warranting, marketing, promoting, advertising, distributing, selling, and/or introducing into interstate commerce either directly or indirectly through third parties or related entities, the [subject matter drugs].
As the Court explained in its Order on Plaintiff's motion for reconsideration, "the only part of this generic allegation that could possibly relate to McKesson is the assertion as to the 'distributing, selling, and/or introducing into interstate commerce' of the subject matter drugs" (3:09-cv-20095 Doc. 61). The Court concluded that this type of generic allegation is not sufficient (3:09-cv-20095 Doc. 61).
C. Recent Filings with Regard to the Above Captioned Member Actions
On September 3, 2010, the Bayer Defendants filed a memorandum in opposition to the remand motions filed in the above captioned cases.*fn3 The memorandum contends that the remand motions pending in the above captioned actions should be denied because, like the Complaint in Jankins, Plaintiffs' respective Complaints fail to allege that McKesson supplied the pills that the Plaintiffs ingested.
In addition, Defendants argue that for certain Plaintiffs California substantive law does not govern the issue of McKesson's liability. Specifically, the Bayer Defendants contend that (1) the laws of Plaintiffs' respective states of citizenship govern resolution of McKesson's liability (because that is where each alleged injury occurred) and (2) Plaintiffs domiciled in Colorado, Georgia, Illinois, Louisiana, Ohio, Tennessee, Texas, and Utah cannot maintain a cause of action against McKesson because, unlike California, these states do not impose liability on distributors such as McKesson.
On September 7, 2010, five of the above captioned member actions filed notices of intent to withdraw, in whole or in part, their remand motions. In addition, several Plaintiffs in the above captioned member actions have filed (virtually identical) replies in support of their motions to remand arguing that 1) under California law Plaintiffs need not plead that McKesson distributed the pills ingested by the Plaintiffs and 2) other courts have not required that Plaintiffs plead that McKesson distributed the subject pills (See 3:10-cv-20333 Doc. 35; 3:10-cv-20331 Doc. 35).
D. Governing Substantive Law
1. Non-California Plaintiffs
As noted by Defendants, some of the pending remand motions involve Plaintiffs that reside in (and were presumably injured in) states other than California. As to the allegations brought by the non-California Plaintiffs, the substantive law of a state other than California likely governs resolution of whether McKesson is subject to liability under state law. Accordingly, for some Plaintiffs, the portion of the Jankins' Remand Order addressing whether McKesson is subject to liability under California law will be immaterial.
2. Conflict of Laws Rules
Generally, a federal court sitting in diversity will apply the conflict of laws rules of the state where the Court sits. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941) (state conflict of laws rules constitute substantive law for Erie purposes, so that a federal court in applying state substantive law must apply the law where the court sits). Thus, at first glance, it appears the Court would apply Illinois conflict of laws rules.*fn4 However, when a diversity case is transferred by the multidistrict litigation panel, the substantive law applied is that of the jurisdiction from which the case was transferred, in this case California.
See Chang v. Baxter Healthcare Corp., 599 F. 3d 728, 732 (7th Cir. 2010). See also Barron v. Ford Motor Co. of Canada Ltd., 965 F.2d 195, 197 (noting that when a case is transferred on grounds of convenience, the transferee court must apply the conflict of laws rules of the transferor jurisdiction whether the defendant or the plaintiff requested the transfer). Accordingly, the Court finds that, in the above captioned cases, California choice of laws rules govern.
3. Conflict of Laws Analysis is Not Necessary At This Time Applying
California choice of laws rules, the Court would next determine whether each Plaintiff's claims are governed by the substantive law of California or the substantive law of another state (such as the law of the state where the injury occurred) and whether McKesson is subject to liability under the governing substantive law. The Court, however, need not undertake a lengthy choice of law analysis at this time because none of the Complaints in the above captioned actions assert that McKesson supplied the actual pills ingested by the Plaintiffs.
As is explained more fully below, establishing that the alleged tortfeasor manufactured, supplied, sold, distributed or was in some way responsible for the allegedly injurious product is a threshold requirement for imposing liability on McKesson. This is so regardless of which state's substantive law governs and regardless of the theory of recovery. Accordingly, pursuant to California's pleading rules (requiring that a plaintiff plead every fact he or she must prove), even assuming McKesson is subject to liability under the governing substantive law, the Court would have no choice but to find (as it did in Jankins) that McKesson has been fraudulently joined.
E. Necessity of Alleging Causation as to McKesson
1. California Pleading Standards
"In a complaint, the plaintiff must allege every fact that he or she must prove." Hughes v. Western MacArthur Co. (1987) 192 Cal. App. 3d 951, 956, 237 Cal. Rptr. 738 (Cal. App. 1987). See also California Code Civ. Proc., § 425.10, subd. (a)(1) ("A complaint must contain a statement of the facts constituting the cause of action in ordinary and concise language."); Careau & Co. v. Security Pacific Business Credit, Inc., 272 Cal. Rptr. 387, 396-397, 222 Cal. App. 3d 1371, 1390-1391 (Cal. App. 1990) ("A complaint must allege the ultimate facts necessary to the statement of an actionable claim."): In re Eskridge's Estate, 51 Cal. App. 2d 634, 635, 125 P.2d 527 (Cal. App. 1942) (Under California Pleading standards, every ultimate fact required to be proved to sustain a cause of action must be alleged). Accordingly, if causation is a requisite element or a fact that must be proved (under the governing substantive law), then California pleading standards require that the complaint contain an allegation of causation, in this case that McKesson supplied the subject drugs. Absent such an allegation, Plaintiffs have failed to state a cause of action against McKesson.
2. Causation is a Requisite Element of Any Claim Brought Against McKesson
The Plaintiffs in the above captioned actions bring product claims premised on a variety of theories including strict liability, negligence, breach of implied and express warranties, deceit by concealment, and negligent misrepresentation. Assuming without deciding that a distributor such as McKesson would be subject to liability under the governing substantive law, the imposition of liability, under any theory of recovery, depends upon a showing that the defendant manufactured, sold, supplied, or was in some way responsible for the product that is alleged to have caused the plaintiff's injuries. See Products Liability: Necessity and Sufficiency of Identification of Defendant as Manufacturer or Seller of Product Alleged to Have Caused Injury, 51 A.L.R.3d 1344, § 2(a) ("Regardless of the theory which liability is predicated upon, whether negligence, breach of warranty, strict liability in tort, or other grounds, it is obvious that to hold a producer, manufacturer, or seller liable for injury caused by a particular product, there must first be proof that the defendant produced, manufactured, sold, or was in some way responsible for the product") (footnotes omitted); American Law of Products Liability 3d § 5:1 ("a threshold requirement for a products liability action is that the plaintiff identify the manufacturer or supplier responsible for placing the injury-causing product into the stream of commerce; this is the traditional requirement that plaintiff establish causation.")
Depending upon the outcome of a choice of law analysis under California choice of law rules, the claims of the Plaintiffs in the above captioned actions would be governed by the substantive law of California, Georgia, Nevada, Oklahoma, Utah, Tennessee, Arizona, Louisiana, Connecticut, New York, Texas, Ohio, or Illinois.*fn5 Under the substantive governing law in any of these states, causation will be a requisite element of Plaintiffs' claims. See e.g., Winsosr v. Glasswerks PHX, L.L.C., 204 Ariz. 303, 312 (Ariz. App. 2003) (deferring to the legislature the issue of whether to adopt "product line" and "continuity of enterprise" exceptions to the general rule against successor liability and stating that a "fundamental tenet of [Arizona] products liability law is that compensation for injury is tied to those who have a causal connection to placing the product into the stream of commerce"); DiCola v. White Bros. Performance Products, Inc., 158 Cal. App. 4th 666, 677, 69 Cal. Rptr. 3d 888, 898 (Cal. App. 2008) ("As a general rule, a plaintiff claiming to have been injured by a defective product must prove that the defendant's product, or some instrumentality under the defendant's control, caused his or her injury."); Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 597-598, 607 P.2d 924, 928, 163 Cal. Rptr. 132, 136 (Cal. 1980) ("as a general rule, the imposition of liability depends upon a showing by the plaintiff that his or her injuries were caused by the act of the defendant or by an instrumentality under the defendant's control. The rule applies whether the injury resulted from an accidental event or from the use of a defective product.") (internal citations omitted); Douglas v. Smith, 578 F.2d 1169, 1171-1172 (5th Cir. 1978)(under Georgia law, gas supplier not subject to liability for damages arising from gas explosion absent evidence that gas delivered by supplier was the gas that exploded); Sox v. Carrolton Coca-Cola Bottling Co., 59 Ga. App. 367 (Ga. App. 1939) (in action against bottling company for injuries caused by substance in bottled beverage purchased at drug store, plaintiff failed to state a cause of action in absence of showing that beverage was bottled or marketed by bottling company);Smith v. Eli Lilly & Co., 137 Ill.2d 222, 232-233 (Ill. 1990) (in product liability actions, to recover under strict liability or negligence plaintiff "must establish some causal relationship between the defendant and the injury-producing agent");Aymond v. Texaco, Inc., 554 F.2d 206, (C.A. La. 1977) (affirming lower court's directed verdict in favor of manufacturer and noting that manufacturer could not be held liable for worker's injuries where there was no evidence that defective product was manufactured by defendant); Desnoyers v. Wells, 4 Conn. App. 666 (Conn. App. 1985) (affirming grant of summary judgment in favor of defendant on plaintiff's claims for products liability, negligence and breach of warranty where defendant did not manufacturer, sell, or distribute the product in question);Rivera v. Philip Morris, Inc., 125 Nev. 18 (Nev. 2009) (declining to adopt heeding presumption in failure to warn product liability action because plaintiff has burden as to element of causation in strict product liability cases); Price v. Blaine Kern Artista, Inc., 111 Nev. 515, 518 (Nev. 1995) (causation is germane to both negligence and strict tort liability); Shoshone Coca-Cola Bottling Co. v. Dolinski, 82 Nev. 439, 443 (Nev. 1966) (adoption of strict products liability does not abrogate requirement that plaintiff establish defendant caused alleged injury); U.S.-In re Rezulin Products Liability Litigation, 133 F. Supp. 2d 272 (S.D. N.Y. 2001) (In any products liability action, the plaintiff must establish a connection, however indirect, between the defendant and the defective product that caused plaintiff's injuries);Ohio Rev. Code § 2307.73 (expressly requiring proof that a defendant manufacturer produced the actual defective product that caused the plaintiff's injury); Sutowski v. Eli Lilly & Co., 82 Ohio St. 3d 347, 351 (Ohio 1998) ("Ohio common law has long required a plaintiff to prove that a particular defendant caused his injury through negligence"); Case v. Fibreboard Corp., 743 P.2d 1062 (Okl. 1987) (disapproving of "market share" liability theory and declining to dispense with requirement under Oklahoma law that plaintiff prove a link of causation between injury and a particular product in the asbestos context); Wood v. Eli Lilly & Co., 38 F.3d 510 (10th Cir. 1994) (product liability action involving prescription drug DES noting the necessity of causation under Oklahoma law and concluding that Oklahoma law would not allow abrogation of the element of causation); Davis v. Yearwood, 612 S.W.2d 917 (Tenn. App. 1980) (complaint against all possible manufacturers, sellers, distributors, and the like of all possible products that could have caused plaintiffs' injuries, wherein no specific product or entity was identified, court affirmed dismissal for failure to allege facts showing the moving defendant caused or contributed to plaintiffs' injuries); In re Allied Chemical Corp., 227 S.W.3d 652, (Tex. 2007) (plaintiffs have the obligation to plead and prove how they were injured and by whom; they cannot simply file suit against all possible defendants and insist that the defendants prove otherwise); Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705, 710 (Tex.2003) (specific causation as an essential element of product liability case under any theory of recovery-strict liability, negligence, or breach of warranty); Yirak v. Dan's Super Mkts., Inc., 188 P.3d 487, 489 (Utah App. 2008) ("passive retailers," those who do not participate in the design, manufacture, engineering, testing, or assembling of a product," are not subject to liability for product defects when the manufacturer is named as a party in the action) (internal citations omitted).
Thus, in the above captioned cases, regardless of the governing substantive law and regardless of the theory of recovery employed, causation is a requisite element of the Plaintiffs' claims against McKesson. Therefore, under California pleading standards, Plaintiffs' Complaints must allege causation, i.e. that McKesson was in some way responsible for the pills that caused Plaintiffs' alleged injuries. The fact that pleadings are to be liberally construed*fn6 does not dispense with this requirement. See Hughes v. Western MacArthur Co., 192 Cal. App. 3d 951, 956 (Cal. App. 1987) (requirement of liberal construction "does not relieve [a plaintiff] of the obligation to plead some allegation from which [the court] may construe a legal connection between the party that injured [the plaintiff] and the party whom [the plaintiff] seeks to hold liable for [the plaintiff's] injury"). Cf. Bockrath v. Aldrich Chemical Co., Inc. 21 Cal.4th 71, 81, 980 P.2d 398, 405, (Cal. 1999) ("The law cannot tolerate lawsuits by prospecting plaintiffs who sue multiple defendants on speculation that their products may have caused harm over time through exposure to toxins in them, and who thereafter try to learn through discovery whether their speculation was well-founded."); Oddone v. Superior Court 179 Cal. App. 4th 813, 821-822, 101 Cal. Rptr. 3d 867, 872-873 (Cal. App. 2009) (discussing the policy concerns raised in Bockrath, specifically "overbroad litigation,"and concluding that plaintiff's claims were "palpably inadequate" because plaintiff failed to allege a sufficient causal link between the defendant and the alleged harm").*fn7
F. Sufficiency of Pleading That McKesson May have Distributed the Subject Drugs
Some of the Plaintiffs in the above captioned actions have alleged that in California, it is enough that McKesson may have distributed the subject drugs (See 3:10-cv-20333 Doc. 35 p. 3; 3:10-cv-20331 Doc. 35 p. 3). The Plaintiffs that assert this claim rely, in part, on Childs v. State of California 144 Ca. App.3d 155, 161 (Ca. Ct. App. 1st Dist. 1983). This case is simply not applicable.
In Childs, the California Appellate Court addressed whether use of the term "on or about" when pleading dates constitutes a proper pleading. In that case, the date of deposit in the mail was the crucial date because it triggered the statute of limitations. The plaintiff alleged a deposit date of "on or about" June 10, 1980. The court noted that the lack of a more specific date was "quite likely the result of appellant's present ignorance concerning that pivotal fact, which, if known at all, [was] presumptively within respondent's knowledge." The court concluded that the "[s]ince the appellant's complaint would be deemed timely filed if the notice had been deposited in the mail even one day after the date affixed to it by respondent, we consider the pleading of 'on or about' June 10, 1980, sufficient to withstand a general demurrer, as it reveals only that plaintiff's action may be barred." This narrow fact specific holding regarding use of the term "on or about" does not abrogate a plaintiff's obligation to plead the facts that constitute a cause of action.
Plaintiffs also rely on various district court opinions that disagree with the Order issued by this Court in Jankins. As the Court has explained in previous decisions, the opinions of other district courts are certainly not binding on this Court. Moreover, for the reasons discussed in this Order, the Court respectfully disagrees with the contention that Plaintiffs need not allege that McKesson supplied the subject drugs.
As noted, in California, "as a general rule, the imposition of liability depends upon a showing by the plaintiff that his or her injuries were caused by the act of the defendant or by an instrumentality under the defendant's control. The rule applies whether the injury resulted from an accidental event or from the use of a defective product." Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 597-598, 607 P.2d 924, 928, 163 Cal. Rptr. 132, 136 (Cal. 1980) cert. denied, 449 U.S. 912 (1980)(internal citations omitted). There are, however, exceptions to the general rule. See Id at 598 (noting that, in California, there are several alternative bases for imposing liability on a defendant when a plaintiff cannot identify the particular defendant that manufactured the harmful product).
The alternative bases for imposing liability when a plaintiff cannot establish causation were thoroughly explored by the California Supreme Court in Sindell v. Abbott Laboratories, 26 Cal.3d 588, 597-598, 607 P.2d 924, 928, 163 Cal.Rptr. 132, 136 (Cal., 1980). In Sindell the plaintiffs, a class of daughters who were exposed to the drug diethylstilbesterol ("DES") which their mothers ingested during pregnancy, brought an action against 11 drug companies and Does 1 though 100 for birth defects caused by their mothers' ingestion of DES during pregnancy. The plaintiffs' claims were problematic because approximately 200 companies manufactured DES and the Plaintiffs could not identify which drug company supplied the particular DES ingested by their mothers. Id., 163 Cal. Rptr. at 132-139, 607 P.2d at 925-931.
As the California Supreme Court explained, under traditional tort theories, to state a cause of action the plaintiffs had to allege that the defendants were in some way responsible for the DES ingested by their mothers. Because the plaintiffs could not meet this requirement, the court addressed whether the plaintiffs could maintain their claims using alternative theories of causation. See e.g., 597-603 (discussing the "alternative liability" theory of Summers v. Tice, which requires joinder of "all the parties who were or could have been responsible for the harm to the plaintiff;" and finding that the theory could not be employed because the plaintiffs had named only a portion of the approximately 200 drug companies that manufactured DES -- thus, there was no rational basis to infer any one of the named defendants was the responsible entity); Id. at 604-606 (finding that the complaint failed to state a claim based upon "concert of action"); Id. at 607-610 ...