Opinion
No. C 12-05970 WHA
03-19-2013
JAMES BRINDLE, REBECCA GREGG, and DIANA GUTHRIE, Plaintiffs, v. MCKESSON CORPORATION, et al., Defendants.
ORDER REQUESTING
ADDITIONAL BRIEFING
In this pharmaceutical product liability action, plaintiffs move to remand back to state court. Defendants oppose on federal question and supplemental jurisdiction grounds. In PLIVA, Inc. v. Mensing, 131 S.Ct. 2567 (2011), the Supreme Court held that state failure-to-warn claims are preempted by federal law. While "it is now settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption," Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987) (citations omitted) (emphasis in original), there is an "independent corollary." See id. (citations omitted). "On occasion, the Court has concluded that the pre-emptive force of a statute is so 'extraordinary' that it 'converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.'" Id. (quoting Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987)). Then, "[o]nce an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law." Id. (quoting Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust for S. Cal, 463 U.S. 1, 24 (1983)).
This order requests additional briefing on this issue. Specifically, the parties must address the following three questions:
First, after Mensing, are plaintiffs' state failure-to-warn claims here "completely pre-empted" such that federal-question jurisdiction is proper?
Second, in the event that federal question jurisdiction is proper, has Congress explicitly authorized a private right of action regarding the labeling of manufacturers of generic drugs or alternatively, has one been implied by law?
Third, what effect (if any) will the Supreme Court's decision in Mutual Pharm. Co., Inc. v. Bartlett, 133 S.Ct. 694 (2012), granting cert. to Bartlett v. Mutual Pharm. Co., Inc., 678 F.3d 30 (1st Cir. 2012), have on this action?
All defendants are to file one joint brief of no more than ten pages by NOON ON MARCH 25, 2013. All plaintiffs are to file one joint brief of no more than ten pages by NOON ON MARCH 25, 2013.
IT IS SO ORDERED.
_____________________
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE