On Monday federal judge Josephine L. Staton granted Plaintiff Evelyn Calvillo’s motion to send her case back to California state court. This is the first AndroGel case to be sent back to state court prior to it being transferred to a federal court in Illinois where it would have been consolidated with hundreds of other AndroGel cases.
The case was initially filed in Orange County Superior Court on July 7, 2014. AbbVie, Inc., the manufacturer of AndroGel, removed the case from California state court alleging that Albertson & Davidson, LLP “fraudulently joined” one of the defendants, McKesson Corporation, in the case to preclude the case from being removed from state court and transferred to an Illinois federal court.
Albertson & Davidson, LLP filed a motion to send the case back to California state court a few days later arguing that the Plaintiff’s lawsuit appropriately named McKesson Corporation as a defendant, and thus, the federal court should send the case back to state court. You can see Albertson & Davidson, LLP’s motion for remand here.
AbbVie, Inc., along with Abbott Laboratories and McKesson Corporation, opposed the motion to remand. AbbVie’s attorneys, Winston & Strawn, LLP, argued that a stay of the case should be allowed so the case could be transferred to a federal court in Illinois. Additionally, they argued that the Plaintiff had not alleged in her lawsuit that McKesson Corporation was the sole distributor of AndroGel, and thus McKesson Corporation was “fraudulently joined” to the case. You can see Winston & Strawn, LLP’s opposition here.
Albertson & Davidson, LLP filed a reply to Winston & Strawn, LLP’s opposition pointing to AbbVie’s own website and 2014 Form 10-k filing with the SEC. Regarding AbbVie’s website, a simple search produced an SEC filing that states McKesson Corporation was the largest single distributor of AbbVie’s pharmaceutical products in 2012, accounting for 38 percent of AbbVie’s 2012 gross sales in the U.S. As for AbbVie’s 2014 Form 10-k, it stated that McKesson Corporation–along with two other wholesale distributors–accounted for substantially all of AbbVie’s sales in the U.S.
After reviewing the arguments, federal judge Josephine L. Staton agreed with the Plaintiff that McKesson Corporation was not “fraudulently joined” because Plaintiff made an adequate claim against McKesson Corporation.
The case is now headed back to Orange County Superior Court.