Gallagher v. Boehringer Ingelheim Pharmaceuticals, Inc.

Background

Anthony Gallagher sued Boehringer Ingelheim Pharmaceuticals, Inc., Sanofi entities, Pfizer, Inc., GlaxoSmithKline, LLC, Chattem, Inc., and retailer defendants over his alleged use of over-the-counter Zantac. Gallagher alleged that he regularly purchased and ingested Zantac from 2014 to 2019 and was diagnosed with kidney cancer in November 2019 as a result. His state-court complaint asserted strict-liability design-defect and failure-to-warn claims, negligence, and breach-of-warranty claims.

The defendants other than Pfizer removed the case from New York state court to the U.S. District Court for the Southern District of New York based on diversity jurisdiction. Diversity jurisdiction generally requires that the opposing parties be citizens of different states and that the amount in controversy exceed $75,000. Certain defendants also asked the court to pause the case while the Judicial Panel on Multidistrict Litigation (JPML) considered transferring it to the related Zantac multidistrict litigation (MDL).

Motion to Remand

The court denied Gallagher’s motion to remand, meaning it kept the case in federal court. Gallagher argued that Pfizer’s presence defeated diversity jurisdiction because Pfizer and Gallagher were both citizens of New York, that Pfizer had not consented to removal, that CVS Store #2906 was a New York citizen, and that the notice of removal was untimely. He also sought removal-related costs and attorneys’ fees.

The court held that Pfizer was fraudulently joined for purposes of removal. This doctrine allows a federal court to disregard a nondiverse defendant when the complaint provides no possible basis for a state-court claim against that defendant. The court applied New York law, which requires a product-liability plaintiff to show that the defendant manufactured or placed into commerce the product that caused the injury. Gallagher alleged that Pfizer controlled the over-the-counter Zantac rights from August 2004 through December 2006, but alleged that he used Zantac from 2014 through 2019. The court found that Gallagher did not allege that Pfizer manufactured the Zantac he used, sold it to him, or placed it into commerce. The court therefore concluded that the complaint did not establish a possible claim against Pfizer.

The court also held that the rule requiring all properly joined and served defendants to consent to removal was satisfied. Counsel for the relevant defendants signed the notice of removal under a statement that the defendants consented to removal. The court ruled that the written consent did not have to appear in a separate document.

As to CVS Store #2906, the court found that the store was operated by CVS Albany, LLC, whose sole member was CVS Pharmacy, Inc., a Rhode Island corporation with its principal place of business in Rhode Island. The court therefore treated the store as a Rhode Island citizen for diversity purposes. Finally, the court held that the removal was timely because Chattem filed the notice within thirty days after it was served, and the notice was sufficient for the consenting defendants.

Motion to Stay

The court granted in part and denied in part the motion to stay. It stayed further proceedings pending the JPML’s decision about transferring the case to the related Zantac MDL. The court reasoned that the JPML’s decision was expected relatively soon, that a short pause would not unfairly harm Gallagher, and that continuing the case could create duplicative proceedings or inconsistent discovery if the case were transferred. The opinion does not identify the specific portion of the stay request that was denied.

Disposition

The motion to remand was denied. The motion for a stay was granted in part and denied in part. Further proceedings were stayed pending the JPML’s decision concerning transfer to the related Zantac MDL. The Clerk of Court was directed to close the docket entries for the stay and remand motions.