Jean Adams v. Merck Sharp & Dohme Corp. ( 2017 )


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  •                            NOT FOR PUBLICATION
    
                        UNITED STATES COURT OF APPEALS
                                                                                FILED
                                FOR THE NINTH CIRCUIT
                                                                                DEC 06 2017
                                                                             MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS
    In re: INCRETIN-BASED THERAPIES                  No.   15-56997
    PRODUCTS LIABILITY LITIGATION,
    ______________________________                   D.C. No.
                                                     3:13-md-02452-AJB-MDD
    JEAN ADAMS, On Behalf of Herself and
    All Other Similarly Situated Plaintiffs,
                                                     MEMORANDUM*
                  Plaintiff-Appellant,
    
     v.
    
    MERCK SHARP & DOHME CORP.,
    FKA Merck & Co. Inc.; et al.,
    
                  Defendants-Appellees.
    
    
                       Appeal from the United States District Court
                          for the Southern District of California
                       Anthony J. Battaglia, District Judge, Presiding
    
                          Argued and Submitted October 3, 2017
                                  Pasadena, California
    
    Before: GRABER, MURGUIA, and CHRISTEN, Circuit Judges.
    
    
    
    
          *
                 This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
          Plaintiff-Appellant Jean Adams and other plaintiffs in this consolidated,
    
    multidistrict litigation appeal the district court’s determination that their state-law
    
    claims were preempted under Wyeth v. Levine, 
    555 U.S. 555
     (2009). We have
    
    jurisdiction pursuant to 28 U.S.C. § 1291. We do not decide whether the
    
    defendants met their burden under Levine’s “clear evidence” test because we hold
    
    the district court misapplied Buckman Co. v. Plaintiffs’ Legal Committee, 
    531 U.S. 341
     (2001), in two ways: first, the district court relied on Buckman to
    
    impermissibly circumscribe discovery; and second, the district court relied on
    
    Buckman to deem the plaintiffs’ newly discovered evidence “irrelevant” to the
    
    court’s preemption analysis at the summary judgment stage. Either of these errors
    
    would independently warrant reversal.
    
          1. In Buckman, the plaintiffs were injured by the use of orthopedic bone
    
    screws in their spines and claimed that the defendant, a consulting company that
    
    assisted the screws’ manufacturer to secure regulatory approval, made fraudulent
    
    representations to the Food and Drug Administration (FDA). Id. at 343. The
    
    Supreme Court held the plaintiffs’ state-law claims were impliedly preempted by
    
    
    
    
                                                2
    federal law.1 Id. at 348. The Court ruled that the plaintiffs’ state-law “fraud-on-
    
    the-FDA” claims “inevitably conflict[ed] with the FDA’s responsibility to police
    
    fraud consistently with the Administration’s judgment and objectives,” id. at 350,
    
    and reasoned, “were plaintiffs to maintain their fraud-on-the-agency claims . . . ,
    
    they would not be relying on traditional state tort law which had predated the
    
    federal enactments” in question, id. at 353; “[o]n the contrary, the existence of
    
    these federal enactments is a critical element in their case.” Id.
    
          Conversely, in Stengel v. Medtronic Inc., we held the plaintiffs’ state-law
    
    failure-to-warn claim was not preempted. 
    704 F.3d 1224
    , 1233 (9th Cir. 2013) (en
    
    banc), cert. denied, 
    134 S. Ct. 2839
     (2014). We explained that because the
    
    plaintiffs’ claim “rest[ed] on a state-law duty that parallel[ed] a federal-law duty”
    
    and was “independent of the FDA’s pre-market approval process that was at issue
    
    in Buckman,” Buckman did not control and the plaintiffs’ claims were not
    
    
          1
            The federal law at issue in Buckman, Stengel v. Medtronic Inc., 
    704 F.3d 1224
     (9th Cir. 2013) (en banc), and McClellan v. I-Flow Corp., 
    776 F.3d 1035
     (9th
    Cir. 2015), was the Medical Device Amendments to the Food, Drug, and Cosmetic
    Act (FDCA). We have previously suggested that the reasoning and policy of these
    decisions also applies to drugs. See Gaeta v. Perrigo Pharm. Co., 
    630 F.3d 1225
    ,
    1234 (9th Cir. 2011) (distinguishing Buckman but giving no indication that
    Buckman’s rule was inapplicable to preemption with respect to drug claims),
    vacated on other grounds, 
    565 U.S. 973
     (2011). We therefore assume without
    deciding that Buckman would also preempt state-law fraud-on-the-FDA claims
    concerning drugs.
                                               3
    preempted. Id.; see also McClellan v. I-Flow Corp., 
    776 F.3d 1035
    , 1040–41 (9th
    
    Cir. 2015) (holding the plaintiff’s state-law failure-to-warn claims against the
    
    manufacturer of an infusion pump were not fraud-on-the-FDA claims preempted
    
    under Buckman because the claims “did not arise solely by virtue of” federal law,
    
    and because there was “no suggestion that Congress intended to displace
    
    traditional tort law by making all policing of medical labels and warnings the
    
    exclusive province of the FDA”).
    
          2. Here, the district court first relied on Buckman to circumscribe discovery.
    
    Though it acknowledged that “this is not a case like Buckman that is predicated
    
    upon a fraud-on-the-FDA basis,” the district court perceived that the plaintiffs
    
    “invoke[d] allegations of misreporting and under-reporting as a justification for
    
    additional discovery, and as pertinent to a preemption defense.” The court
    
    concluded that the plaintiffs were asserting “fraud-on-the-FDA type allegations”
    
    that were preempted by Buckman, and decided that the discovery they sought,
    
    which included adverse event source documents and databases, was irrelevant to
    
    whether federal law preempted the plaintiffs’ state-law failure-to-warn claims.
    
          First, we disagree with the district court’s characterization of the plaintiffs’
    
    state-law claims as “fraud-on-the FDA type allegations.” The plaintiffs asserted
    
    common-law failure-to-warn claims arising from a state-law duty that paralleled an
    
                                               4
    FDCA-imposed duty, as was the case in Stengel and McClellan, where we found
    
    the state-law claims not to be preempted. Stengel, 704 F.3d at 1233; see also
    
    McClellan, 776 F.3d at 1040–41. The discovery the plaintiffs sought was directly
    
    relevant to whether any causal connection existed between incretin use and
    
    pancreatic cancer. The plaintiffs did argue that it would not be unduly burdensome
    
    to produce the data they requested because the defendants were required to collect
    
    and submit it to the FDA, but the duty the plaintiffs claim the defendants breached
    
    was the parallel common law duty to warn, not a duty arising from the FDCA. As
    
    pertinent to the defendants’ preemption affirmative defense, whether it would have
    
    been possible for the defendants to comply with both their common law duty to
    
    warn and the federally imposed reporting obligations is a separate issue that cannot
    
    be resolved without knowing what information was available to the defendants.
    
    See Levine, 555 U.S. at 573. Neither Buckman’s holding nor what the district court
    
    termed the “policy underlying Buckman” can be read to preclude discovery of
    
    evidence relevant to the plaintiffs’ state-law failure-to-warn claims. See Stengel,
    
    704 F.3d at 1233.
    
          The district court also ruled the request to compel production of the
    
    defendants’ adverse event source documents and databases was unduly
    
    burdensome. The plaintiffs sought the “source files” for each pancreatic cancer
    
    
                                              5
    event known to the defendants. Such files have been produced in pharmaceutical
    
    litigation of this sort, it is undisputed that the defendants already maintained these
    
    databases, and here, the volume of the requested data was limited. Defendants
    
    established only that producing the files to the plaintiffs would require the
    
    relatively modest task of redacting identifying information of patients and
    
    reporters.2 The cost estimate provided to the district court included the cost of
    
    producing the source files of both pancreatic cancer and pancreatitis. This figure
    
    therefore overestimated the cost required to produce the pancreatic cancer files
    
    alone. Thus, the defendants failed to show that complying with the plaintiffs’
    
    discovery request would be unduly burdensome, and it was an abuse of discretion
    
    to deny the plaintiffs’ motion to compel production for this reason. We reverse the
    
    district court’s discovery orders that were premised on its misapplication of
    
    Buckman, specifically: (1) the denial of the plaintiffs’ motion to compel production
    
    of adverse event source documents and databases; and (2) the denial of the
    
    plaintiffs’ motion to compel production of the defendants’ foreign regulatory files.
    
          3. The district court also relied on Buckman to preclude its consideration of
    
    “new safety information” the plaintiffs uncovered in the discovery they were
    
    
          2
             The number of pancreatic cancer adverse events (and the corresponding
    number of source files the defendants would need to produce) appears to be
    relatively low according to the FDA’s adverse event database.
                                               6
    allowed to conduct, including a signal assessment completed by Health Canada and
    
    evidence from animal studies and clinical trials. The defendants argue the district
    
    court considered and rejected the plaintiffs’ “new safety information” as non-
    
    material. In its summary judgment order, the district court enumerated the “new
    
    safety information” that the plaintiffs proffered, but also unambiguously stated that
    
    it “maintain[ed] its position as set forth in previous orders regarding the relevance
    
    of this data to the Court’s conflict preemption analysis,” reiterated its view that
    
    “Buckman [was] implicated by Plaintiffs’ defense to the clear evidence standard,”
    
    and concluded that the “new safety information” did not constitute “persuasive or
    
    appropriate considerations in analyzing the clear evidence standard” (emphasis
    
    added). These statements strongly suggest that the court deemed the new safety
    
    information irrelevant at the summary judgment stage. Further, in its discussion of
    
    the materiality of the “new safety information,” the district court stated, “it remains
    
    unclear whether the FDA considered this information, and if it did not, whether
    
    this data would have altered the FDA’s conclusion” (emphasis added).
    
    Uncertainty about whether the FDA considered the “new safety information” and
    
    whether it would have altered the FDA’s conclusion establishes that a disputed
    
    issue of material fact should have prevented entry of summary judgment on the
    
    defendants’ preemption claim. As the district court correctly noted, the parties’
    
    
                                               7
    experts disputed whether the “new safety information” would have been material
    
    to the FDA’s analysis.
    
          4. Finally, we hold the district court abused its discretion by partially
    
    disqualifying the plaintiffs’ regulatory expert. The district court’s order correctly
    
    observed that Dr. Fleming’s exposure to confidential information could not be
    
    “entirely documented” by discoverable information such as meeting minutes, but
    
    failed to account for the fact that this was the only evidence the defendants offered
    
    to show they had disclosed to Dr. Fleming information relevant to the current
    
    litigation. The defendants did not submit testimony or a declaration of anyone at
    
    Novo Nordisk who could attest to whether or how any information provided to Dr.
    
    Fleming was relevant to the current litigation, and Dr. Fleming averred that in
    
    reaching his opinions and preparing his report for this litigation, he did not rely on
    
    any information, confidential or otherwise, that he obtained from his consulting
    
    relationship with Novo. Without more, the defendants did not meet their burden of
    
    showing “specific and unambiguous” disclosures required to trigger
    
    disqualification, Hewlett-Packard Co. v. EMC Corp., 
    330 F. Supp. 2d 1087
    , 1094
    
    (N.D. Cal. 2004) (emphasis added). The district court abused its discretion by
    
    partially disqualifying Dr. Fleming.
    
    
    
    
                                               8
          As an independent ground for disqualifying Dr. Fleming, the district court
    
    concluded that he was a “competitor” under the court’s protective order. The
    
    parties stipulated to the terms of the protective order, Dr. Fleming’s involvement
    
    with Exsulin did not violate its express terms, and the defendants acknowledge that
    
    the drug being developed by Dr. Fleming’s company was not a prescription
    
    medication. The district court’s order concluded that “Plaintiffs’ argument
    
    distinguishing between a manufacturer and a developer presumes a meaningful
    
    difference in the context of the protective order,” but the record does not show that
    
    the defendants were required to carry their burden of showing the distinction was
    
    not meaningful. The district court abused its discretion by partially disqualifying
    
    Dr. Fleming as a “competitor” under the stipulated terms of the protective order.
    
          VACATED and REMANDED.
    
    
    
    
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