Pfizer Must Battle Diet Drugs Suit in California

     (CN) – Two California couples who say they suffered injuries from Wyeth diet drugs do not have to fight the pharmaceutical giant in Pennsylvania, a federal judge ruled.
     Pondimin and Redux are diet drugs manufactured by Pfizer subsidiary Wyeth Pharmaceuticals and distributed by McKesson Corp.
     Jane Mitchell and Julie Sandoval claim they suffered damages as a result of ingesting these drugs.
     Together with their husbands, Mitchell and Sandoval sued Pfizer, Wyeth and McKesson in a California superior court.
     The drugmakers removed the case to the Northern District of California, and the Judicial Panel on Multidistrict Litigation then transferred it to the Eastern District of Pennsylvania for all pretrial proceedings as part of the In re: Diet Drugs litigation.
     The Mitchells and Sandovals filed a motion to remand the case to California on the ground that complete diversity of citizenship is lacking.
     U.S. District Judge Harvey Bartle III granted the plaintiffs’ motion on Nov. 7, sending the case to San Francisco County Superior Court.
     “It is undisputed that the plaintiffs Julie Sandoval and Arthur Sandoval are citizens of the state of California as is the defendant McKesson,” he wrote. “Thus, based on the complaint, complete diversity of citizenship is lacking, and we have no subject matter jurisdiction.”
     Pfizer and Wyeth asserted that McKesson, the only defendant based in California, was fraudulently joined and must be dismissed, giving the Pennsylvania court subject-matter jurisdiction.
     But Bartle tossed that argument aside.
     “The court must look only to the four corners of the complaint in determining whether removal was proper and subject matter jurisdiction exists,” he wrote. “An affirmative defense, which of course does not appear in the complaint, cannot be considered in determining whether a plaintiff has stated a colorable claim under state law.”
     Bartle also rejected Pfizer and Wyeth’s argument that the Mitchells and Sandovals have not adequately pleaded a state-law claim against McKesson.
     “We are persuaded that plaintiffs have met the applicable California pleading standard,” the seven-page ruling states. “That standard requires only a ‘statement of the facts constituting the cause of action, in ordinary and concise language.’ Moreover, the complaint alleges a colorable claim. It avers that McKesson was a ‘participant in the chain of distribution of the Pondimin and/or Redux that plaintiffs ingested.’ It further sets forth, among other things, that ‘McKesson knew of the risk of [primary pulmonary hypertension] associated with using the subject drugs … and failed to apprise the plaintiffs, the public at large, or physicians of those material facts and risks.’
     “Since plaintiffs have pleaded colorable state law claims against McKesson, there is no fraudulent joinder and McKesson remains a defendant,” the decision concludes. “With its presence, no diversity jurisdiction exists.”

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