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In re Testosterone Replacement Therapy Products Liability Litigation

United States Court of Appeals, Seventh Circuit

January 19, 2018

IN RE: TESTOSTERONE REPLACEMENT THERAPY PRODUCTS LIABILITY LITIGATION
v.
PFIZER, INC. and PHARMACIA & UPJOHN COMPANY, LLC, Defendants-Appellees. RODNEY GUILBEAU, et al., Plaintiffs-Appellants, Rule 54(b) Cases

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. MDL No. 2545 Master Docket Case No. 1:14-cv-01748 Matthew F. Kennelly, District Judge.

          Before WILLIAM J. BAUER, Circuit Judge DAVID F. HAMILTON, Circuit Judge SARA L. DARROW, District Judge [*]

          ORDER

         In the multidistrict litigation docket that gave rise to this appeal (MDL No. 2545), the district court dismissed all cases with prejudice that involved the above-named defendants, Pfizer, Inc. and Pharmacia & Upjohn Company, LLC, the makers of the drug Depo-Testosterone.[1] Some of the more than one thousand individual cases subject to this appeal were resolved by final judgments, see Master Dkt. Nos. 1824, 1969, while others were resolved by partial final judgments pursuant to Fed.R.Civ.P. 54(b), see Master Dkt. Nos. 1865, 1970. By separate opinion issued today, we affirm the district court's decisions with respect to both the defendants' preemption defense and the denial of discovery on the preemption defense.

         In the course of briefing this appeal, however, the parties have since noted the lack of complete diversity of citizenship in forty of the cases affected by these District Court orders. The list of these cases, contained in Appellate Dkt. 15-1, is reproduced below. In each case, there is at least one defendant who is a citizen of the same state as the plaintiff, which would ordinarily deprive the federal courts of subject matter jurisdiction. See 28 U.S.C. § 1332(a), (c); McCready v. eBay, Inc., 453 F.3d 882, 890-91 (7th Cir. 2006) (noting complete diversity requirement). Though some cases may involve only one (non-diverse) defendant, it is possible that some of these cases may be properly brought against remaining diverse defendants and that the non-diverse defendants could and should be dismissed to preserve subject matter jurisdiction. It would be possible in theory for us to take these forty cases one by one to decide whether the non-diverse defendants are dispensable parties who should be dismissed on appeal. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826 (1989); 28 U.S.C. § 1653 (allowing amendment of defective jurisdictional allegations in both trial and appellate courts). Given the number of these cases, the paucity of relevant information before us, and the district court's much greater familiarity with the details of the litigation and its effective management, we think the better course is to have the district court sort out these jurisdictional problems with more detailed assistance from counsel.

         Accordingly, due to a lack of complete diversity of citizenship, the final judgments or partial final judgments entered by the district court in the cases listed below are VACATED and REMANDED for proceedings consistent with this order and the accompanying opinion issued in this appeal, No. 17-2056.

         CASES AFFECTED

Plaintiff/District Court Case No.

Plaintiff's Citizenship

Non-Diverse Defendant(s) to be Dismissed

Master Docket Document Ordering Dismissal

Final Judgment Cases

Evans, Sr. Glenn E., 16-cv-3668

CA

McKesson Corporation

1824

Puryear, David, 16-cv-3650

CA

McKesson Corporation

1824

Barrett, Thomas, 16-cv-7627

MI

Pharmacia & Upjohn Company LLC

1824

Bowen, III, Clinton, 16-cv-8749

MI

Pharmacia & Upjohn Company LLC

1824

Dougherty, Michael, 15-cv-2824

MI

Pharmacia & Upjohn Company LLC

1824

Dunn, Lawrence, 16-cv-1363

MI

Pharmacia & Upjohn Company LLC

1824

Gomez, Luiz C., 16-cv-10157

MI

Pharmacia & Upjohn Company LLC

1824

Hampton, Duane, 15-cv-9564

MI

Pharmacia & Upjohn Company LLC

1824

Knight, Andre L., 16-cv-6039

MI

Pharmacia & Upjohn Company LLC

1824

Lewis, Russell, 15-cv-8889

MI

Pharmacia & Upjohn Company LLC

1824

Lockner, Steven, 16-cv-8912

MI

Pharmacia & Upjohn Company LLC

1824

Mangas, Brian, 16-cv-7617

MI

Pharmacia & Upjohn Company LLC

1824

McClerkin, Duncan, 15-cv-4757

MI

Pharmacia & Upjohn Company LLC

1824

Morgan, Michael, 15-cv-6038

MI

Pharmacia & Upjohn Company LLC

1824

Naragon, Robert C., 15-cv-6546

MI

Pharmacia & Upjohn Company LLC

1824

Orzel, John F., 15-cv-11598

MI

Pharmacia & Upjohn Company LLC

1824

Patrick, Tony N., 16-cv-4578

MI

Pharmacia & Upjohn Company LLC

1824

Sawyers, Dennis, 15-cv-7590

MI

Pharmacia & Upjohn Company LLC

1824

Stapples, Herman, 15-cv-11418

MI

Pharmacia & Upjohn Company LLC

1824

Craig, Michael A., 17-cv-1451

MI

Pharmacia & Upjohn Company LLC

1969

Fleeger, David, 17-cv-465

MI

Pharmacia & Upjohn Company LLC

1969

Griffith, Gary, 17-cv-558

MI

Pharmacia & Upjohn Company LLC

1969

Hitz, Frank F., 17-cv-685

MI

Pharmacia & Upjohn Company LLC

1969

Rule 54(b) Cases

Canion, Thomas, 15-cv-6448

GA

AbbVie Products LLC

1865

Henderson, Ronald E., 16-cv-1527

GA

AbbVie Products LLC

1865

Johnson, Ralph Derrell, 16-cv- 1277

GA

AbbVie Products LLC

1865

Linkous, Brian K., 16-cv-7186

GA

AbbVie Products LLC

1865

Tallevast, John, 16-cv-1772

GA

AbbVie Products LLC

1865

Thompson, Roger, 16-cv-1716

GA

AbbVie Products LLC

1865

Crawford, Edward Lee, 16-cv-1397

FL

Anda, Inc.

1865

Gagnier, Peter T., 16-cv-1349

FL

Anda, Inc.

1865

Jackson, Roosevelt, 16-cv-1158

FL

Anda, Inc.

1865

King, John, 16-cv-3194

VA

Besins Healthcare Inc.

1865

Baggett, Dennie, 16-cv-7404

MI

Pharmacia & Upjohn Company LLC

1865

Coursen, Michael, 16-cv-2676

MI

Pharmacia & Upjohn Company LLC

1865

Harte, Patrick, 16-cv-3946

MI

Pharmacia & Upjohn Company LLC

1865

Howse, Jr., John, 16-cv-1521

MI

Pharmacia & Upjohn Company LLC

1865

Sutphin, Anthony, 16-cv-4485

MI

Pharmacia & Upjohn Company LLC

1865

Barton, Terry, 17-cv-2262

FL

Anda, Inc.

1970

Coffey, Robert J., 17-cv-626

FL

Anda, Inc.

1970

---------

Notes:

[*] Of the Central District of Illinois, sitting by designation.

[1] The district court explained its conclusions in several case management orders issued March 7, 2016, March 30, 2017, April 18, 2017 and May 26, 2017. See Master Dkt. ...


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