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California Distributor of NuvaRing Can Be Sued in California

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The McKesson Corporation is a pharmaceutical distributor that, according to its website, distributes one-third of the medicines Americans use every day, supplying more than 40,000 pharmacy locations. One of the devices it distributes is the NuvaRing contraceptive device. Manufacturer Merck & Co. is now defending nearly 1,000 NuvaRing lawsuits in multidistrict litigation (MDL) in the Eastern District of Missouri.

For the first time, however, California plaintiffs added McKesson to the list of defendants in a recent NuvaRing lawsuit. Merck moved to have McKesson dismissed, claiming they were fraudulently joined to avoid federal jurisdiction. A California district court judge disagreed, and now McKesson will remain as a defendant in the case and the case will remain in California state court rather than being transferred to the MDL court—the first of its kind in NuvaRing litigation.

NuvaRing Lawsuit Adds McKesson as a Defendant

Byra Marble, et al., represented by their NuvaRing lawyer, originally filed their NuvaRing lawsuit on April 30, 2012, in the Superior Court of California for the City of San Francisco. The plaintiffs alleged that Merck & Co., Organon USA, McKesson Corporation, and others were liable for injuries sustained as a result of using the contraceptive device. According to an October 2011 FDA report, side effects like blood clots, deep vein thrombosis, and pulmonary embolism have been associated more often with NuvaRing than with standard low-dose estrogen birth control pills.

Despite the fact that one of the plaintiffs and the McKesson Corporation are both residents of the state of California, the defendants removed the case to federal court at the U.S. District Court for the Northern District of California on May 2, 2012. They claimed that McKesson was fraudulently joined strictly for the purposes of avoiding federal jurisdiction. Two days later, they submitted a letter to the U.S. Judicial Panel on Multidistrict Litigation (JPML), identifying the case as a tag-along for the MDL in Missouri.

Plaintiffs Move to Remand to California State Court

On May 10, 2012, the plaintiffs countered with a motion to remand the case to state court, claiming lack of complete diversity. The defendants then moved to stay this action pending transfer, claiming it would be better to let the MDL court decide on the McKesson matter.

U.S. District Judge William Alsup, however, disagreed with the defendants. In similar cases, the undersigned judge has deferred ruling on the plaintiffs' motions to remand pending the decisions of MDL panels to transfer the actions to MDL courts. The reasoning behind such actions included the desire to prevent inconsistency. In this case, however, the judge stated that such concerns are not present, since this is the only case that names McKesson or any distributor as a defendant.

"Because no other case in the MDL thus far has presented the McKesson issue," the order reads, "there is no economy in sending this action to MDL for resolution."

Can McKesson be Held Liable?

Perhaps the biggest question in this case is whether or not a drug and medical device distributor can be held liable for a NuvaRing injury. The defendants argued they could not, stating that under California law, drug distributors have no duty to warn.

Judge Alsup disagreed. The order states that to prevail on a strict liability cause of action in California, a plaintiff must establish that a defendant's failure to warn was a legal cause of the injury. The plaintiffs allege that McKesson distributed the NuvaRing to the public, that the device was defective and unsafe, and that McKesson knew or should have known about the risks, but failed to warn consumers. The judge concluded that the plaintiffs provided enough detail in their complaint to meet the burden put forth by California law.

As Judge Alsup specifically noted in the order, "No California law exempts distributors of prescription drugs from California's general rule that holds distributors strictly liable for failure to warn in defective products cases.”

More NuvaRing Lawsuits To Be Filed in California

In the end, the judge stated that the defendants had failed to establish "that there is no possibility a California court will hold distributors liable for failure to warn consumers of the risks of a prescription drug." The defendants' motion to stay was denied, and the plaintiffs' motion to remand granted.

This was the first NuvaRing lawsuit where a court addressed the issue of whether McKeeson could be named as a distributor and the defendants sued in California. For attorneys representing clients injured by NuvaRing, this decision opens up new options for a NuvaRing lawyer when considering additional cases and venues to file. NuvaRing cases can now be filed in federal court (which get transferred to the the MDL St. Louis), New Jersey state court and California state court.

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  1. yo says:
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    Going forward why would any distributor distribute a medical device or drug in California due to the fact that they all have side effects some of which may be quite dangerous. Even aspirin can cause severe injury in some patients. All hormonal birth control devices/drugs cause the same side effects or adverse effects described in the article. No more birth control for California Girls?