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In Re Yasmin and Yaz (Drospirenone) Marketing

May 17, 2011

IN RE YASMIN AND YAZ (DROSPIRENONE) MARKETING, SALES PRACTICES AND RELEVANT PRODUCTS LIABILITY LITIGATION


The opinion of the court was delivered by: Judge David R. Herndon

This Document Relates to: ORDERDENYING REMAND

Sherry Pablo, et al., v. Bayer Corp., et al.

Case No. 3:10-cv-20418

AshtenLuayne Wolfe, et al., v. Bayer Corp., et al.

Case No. 3:10-cv-20403

ORDER

HERNDON, Chief Judge:

I. INTRODUCTION

Both of the above captioned cases are multi-plaintiff actions*fn1 originally brought in California State Court against various Bayer entities (collectively, "Bayer") (all non-California citizens), and McKesson Corporation ("McKesson") (a citizen of California and Delaware). Bayer removed both actions to federal district court in California alleging that McKesson, the sole non-diverse defendant, was fraudulently joined and that several of the plaintiffs are improperly joined. Thereafter, the actions were transferred to this Multidistrict Litigation ("MDL") by the United States Judicial Panel on Multidistrict Litigation.

II. BACKGROUND

The gravamen of plaintiffs' claims is that the Bayer Defendants made false representations and concealed material facts concerning the safety and efficacy of Yaz, Yasmin, and/or Ocella. The virtually identical complaints assert product liability claims sounding in negligence, strict liability, breach of express and implied warranties, and fraud/misrepresentation as well claims alleging violations of California's consumer protection laws (Pablo Doc. 1 pp. 48-59 ¶¶ 90-153; Wolfe Doc. 1 pp. 42-54 ¶¶ 90-153). In both actions, all of the claims are directed generically against all of the Defendants.

McKesson is a wholesale distributor of prescription medications that purchases pharmaceuticals for sale to retail pharmacies. Plaintiffs allege that McKesson is a distributor of Yaz, Yasmin, and Ocella. Plaintiffs, however, do not allege that McKesson distributed or supplied the pills that caused their alleged injuries. In addition, neither complaint identifies any particular act of fraud or negligence by McKesson, any particular representation by McKesson, or any other actionable conduct on the part of McKesson that could be the basis for a claim of negligence, fraud, or breach of express warranty.

The Plaintiffs have no connection with one another - each received medication prescribed by different doctors, dispensed by different pharmacies, at different times, and in different locations.The complaints do not identify the plaintiffs' states of citizenship Instead, the complaints merely state that the plaintiffs are "residents of the United States" (Pablo Doc. 1 p. 32 ¶ 1; Wolfe Doc. 1 p. 27 ¶ 1). In their motions to remand, the plaintiffs assert that five of the seven plaintiffs in Pablo*fn2 and eight of the nineteen plaintiffs in Wolfe*fn3 are "residents" of California (hereinafter "California plaintiffs") and that this Court lacks diversity jurisdiction because McKesson is a citizen of California.

Residency is, of course, different than citizenship. It is evident, however, that plaintiffs intended to state that these plaintiffs are citizens of California. After all, the California citizenship of these plaintiffs is the sole basis for the assertion that diversity of citizenship does not exist. Therefore, the Court will treat the assertion with regard to ...


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