Not a Lexis Advance subscriber? Try it out for free.

Gibbons v. Bristol-Myers Squibb Co.

United States Court of Appeals for the Second Circuit

November 27, 2018, Argued; March 26, 2019, Decided

Nos. 17-2638, 17-2642, 17-2643, 17-2648, 17-2661, 17-2667, 17-2677, 17-2687, 17-3765, 17-3867


 [*702]  Richard J. Sullivan, Circuit Judge:

Plaintiffs in this multi-district litigation appeal from judgments entered by the United States District Court for the Southern [**2]  District of New York (Denise L. Cote, J.) dismissing their products liability claims for injuries allegedly caused by the drug Eliquis (apixaban). Specifically, Plaintiffs assert that the district court (1) incorrectly denied motions to remand forty-four of the sixty-four cases before it, and (2) wrongly concluded that Plaintiffs' state law claims were preempted by the Food, Drug, and Cosmetics Act ("FDCA"). Because, as explained below, we agree that removal was proper and that Plaintiffs' state law claims are preempted, we AFFIRM.

I. Background

Defendants Bristol-Myers Squibb Co. ("BMS") and Pfizer Inc. ("Pfizer") are pharmaceutical companies that are incorporated in Delaware and maintain their principal places of business in New York. Together, Defendants manufacture and distribute Eliquis, a blood-thinning medication used to reduce the risk of stroke in patients with atrial fibrillation. As might be expected, Eliquis increases patients' risk of bleeding. To that end, the drug, which was approved by the Food and Drug Administration in 2012, carries warnings about the risk of serious, and possibly fatal, bleeding events.

In 2015, plaintiffs nationwide began to bring products liability [**3]  actions against Defendants, asserting that they or their decedents had suffered excessive bleeding after taking Eliquis that resulted in substantial injury (both physical and financial) or even death. Although the suits arose under the laws of several states, plaintiffs generally alleged that the injuries they or their decedents suffered were attributable to the improper design of Eliquis and the insufficient warning labels that accompanied the drug. Seventeen such suits made their way to the United States District Court for the Southern District of New York, where they were assigned to Judge Cote. The district court ordered the parties to identify a single bellwether case, and the parties selected Utts v. Bristol-Myers Squibb Co., No. 16-cv-5688, for that purpose. Defendants moved to dismiss the complaint in that exemplar action, and on December 23, 2016, the district court granted Defendants' motion in part. See Utts v. Bristol-Myers Squibb Co., 226 F. Supp. 3d 166, 189 S.D.N.Y. 2016) ("Utts I"). The district court concluded that most of the claims in the Utts complaint, including the failure-to-warn claims, were preempted by the FDCA, and that the others simply did not meet the Rule 8 pleading threshold. Id. The district court dismissed [**4]  the design defect allegations with prejudice, but granted leave to amend the remaining claims. Id. The Utts plaintiffs filed their first amended complaint on January 20, 2017.

Following the district court's dismissal of the original complaint in Utts, the Judicial Panel on Multidistrict Litigation transferred all Eliquis products liability actions pending in federal court to the Southern  [*703]  District of New York and assigned them to Judge Cote. See S.D.N.Y. Case. No. 17-md-2754 (DLC), Doc. No. 1. Judge Cote thereafter determined that the best procedure for the MDL would be to (1) allow the plaintiffs in Utts to amend their complaint again, (2) have the parties brief a motion to dismiss that complaint, and then, (3) following its ruling on the motion to dismiss the amended complaint in Utts, permit the parties either to (a) proceed to discovery in all cases (if the motion were denied) or (b) have the non-Utts plaintiffs show cause why their similar complaints should not also be dismissed on the grounds set out in the Utts opinion. The parties agreed.

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

919 F.3d 699 *; 2019 U.S. App. LEXIS 9010 **; CCH Prod. Liab. Rep. P20,601


Prior History: In this multi-district litigation, Plaintiffs bring a series of products liability actions against Defendants, the makers of Eliquis, for injuries they or decedents on whose behalf they are suing suffered while taking the drug. The United States District Court for the Southern District of New York (Cote, J.) denied motions to remand many of the actions to state court and then dismissed sixty-four suits — fifteen of which are now before this Court — for failure to state a claim. Because removal was proper and because Plaintiffs' complaints do not meet the Rule 8 [**1]  standard, we affirm.

Orr v. Bristol-Myers Squibb Co., 2017 U.S. Dist. LEXIS 204560 (S.D.N.Y., July 26, 2017)


district court, label, state court, state law, Plaintiffs', removal, preempted, manufacturers, Transferred, absurd, federal court, complaints, home-state, cases, suits, diversity of citizenship, regulation, motions, parties, studies, acquired information, home state, failure-to-warn, allegations, diversity, bleeding, newly

Civil Procedure, Removal, Postremoval Remands, Appellate Review, Motions for Remand, Appeals, Standards of Review, De Novo Review, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Specific Cases Removed, Diversity of Citizenship, Federal Questions, Elements for Removal, Proper Transferors, Removability, Governments, Legislation, Interpretation, Reviewability of Lower Court Decisions, Preservation for Review, Business & Corporate Compliance, Governments, Agriculture & Food, Federal Food, Drug & Cosmetic Act, Constitutional Law, Supremacy Clause, Federal Preemption, Torts, Products Liability, Types of Defects, Marketing & Warning Defects, Pleadings, Complaints, Requirements for Complaint, Standards of Review