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Federal Court Sends Wrongful Death Case Back to California State Court

Some of the most difficult cases in the Trust, Probate, and Estate world deal with the wrongful death of a loved one. These cases not only include the tragic loss of a family member, but also the insult of a death that could have been prevented. And, unfortunately, in many cases, the individual or company that caused the needless death of a family member will not accept responsibility for their careless actions.

That’s precisely what happened in a wrongful death case my office is handling in California state court– Calvillo v. AbbVie, Inc.

The facts in that case are straightforward. My client’s husband used a pharmaceutical product—AndroGel—and died as a result. My client’s wrongful death lawsuit alleges that AbbVie, Inc., the manufacturer of AndroGel, failed to provide adequate warnings to my client, her husband, and her husband’s doctor of serious health risks associated with the use of AndroGel testosterone therapy. Those risks included, death, heart attack, stroke, pulmonary embolism, and deep vein thrombosis. Those are serious health risks that reasonable patients want before they can properly weigh—in consultation with their doctors— whether to use AndroGel.

How did AbbVie, the maker of AndroGel, respond to my client’s lawsuit? They tried to send her case to a dark hole where it would never see the light of day. Here’s what happened:

My client filed her wrongful death lawsuit in July 2014 in California state court. Less than 30 days later AbbVie unilaterally removed the case from state court to federal court, alleging that my client had “fraudulently joined” McKesson Corporation as another defendant in the lawsuit to preclude AbbVie from removing the case to federal court. You can see AbbVie’s unilateral removal to federal court here.

Once the case hit the federal court, my client immediately filed a motion to remand her case back to California state court. She rightly argued that the federal court did not have jurisdiction over the case, and that AbbVie was abusing the removal process by trying to keep my client’s case out of California state court. You can see my client’s motion to transfer the case back to California state court here.

AbbVie opposed my client’s remand request, arguing that a stay should be ordered so that the case could be transferred from California to an Illinois federal court. AbbVie also made several other silly arguments, including, that McKesson Corporation was fraudulently joined because my client did not allege that McKesson Corporation was the “sole distributor” of AndroGel in California. You can see AbbVie’s opposition to my client’s remand request here.

My client responded to AbbVie’s opposition with facts that came directly from AbbVie’s website and AbbVie’s SEC Form 10-k. Those facts include that McKesson Corporation is heavily involved with the distribution of AbbVie’s pharmaceutical products. You can see my client’s reply here.

On Monday, September 29, 2014, a federal judge ruled on my client’s motion to remand. The federal judge agreed with my client and remanded the case back to California state court. You can check the federal judge’s remand order.

What to expect now from AbbVie? It’s not too hard to figure out AbbVie will likely ask its team of highly compensated attorneys—and I’m sure Harvard educated—to file a “demurrer” in California state court asking the state court to dismiss my client’s case before a California jury can hear how AbbVie failed to adequately warn my client’s husband about the health risks of using AndroGel.

I will follow up with additional posts as this case moves forward.