Eliquis.

In a 21-page order, the U.S. Court of Appeals for the Second Circuit on Tuesday upheld the dismissal of dozens of products liability lawsuits initiated across the country against Bristol‐Myers Squibb Co. and Pfizer Inc. over their blood-thinning medication Eliquis.

The order resolved a split among district courts in the circuit over the proper interpretation of federal forum defendant rules.

The issue arose out of the underlying multidistrict litigation that eventually made its way before U.S. District Judge Denise Cote of the Southern District of New York. Dozens of suits were brought, usually under state-law claims, claiming the drug companies did not properly warn consumers about the bleeding risks of Eliquis.

On appeal, parties in 15 remaining cases argue that the district court erred in its handling a set of nearly four dozen suits, all brought by the firm Salim‐Beasley, that came in a second wave of litigation following an initial dismissal of more than a dozen other cases.

The second wave of cases attempted to depart the MDL issue they faced in California federal court by removing the cases to Delaware State court, the incorporated home to both of the drug companies. In the gap between being notified and being served, the drug companies sought to have the suits transferred and consolidated before Cote. The plaintiffs argued that, under federal civil action removal law, the removal was prohibited because the only basis for federal court jurisdiction was diversity of citizenship.

The federal court in Delaware disagreed, sending those cases to Cote. Salim‐Beasley clients then brought a host of suits in Delaware state court directly, which were removed to the MDL. This time, the plaintiffs asked Cote directly to remand the suits to state court based on the forum defendant rule. Cote denied the request, dismissed the suits, and the appeal ensued.

The panel of Circuit Judges Debra Ann Livingston, Susan Carney and Richard Sullivan acknowledged that in a “usual” case, there's little debate about the proper handling of removal of home-state suits to federal courts. However, the transferred cases at issue dealt with a specific issue in Delaware: the suit was filed, but before the drug companies could be served, they sought removal.

Cote, reading the statute, denied the motion to remand because the law required that defendants be properly joined and served. The lack of ambiguity led the panel to support the decision, even as it was noted that other courts had reached a different conclusion on the issue.

The appellants argued that to take a strict reading of the statute would lead to absurd results that fluctuated depending on how different states operate. The panel didn't dispute that the plaintiffs in the removed actions were right about the general purpose of the removal statute to protect out-of-state defendants from possible prejudices in state court. But the statute's language “cannot be simply brushed aside,” the panel wrote.

“Congress may well have adopted the 'properly joined and served' requirement in an attempt to both limit gamesmanship and provide a bright‐line rule keyed on service, which is clearly more easily administered than a fact‐specific inquiry into a plaintiff's intent or opportunity to actually serve a home‐state defendant,” the panel wrote. “Absurdity, then, cannot justify a departure from the plain text of the statute.”

To the non-uniform application issue, the panel noted that state-by-state variations are common enough in federal litigation, and that such an issue didn't overcome the need to adopt the plain text of the law.

The panel went on to affirm Cote's dismissal of more than six dozen suits on the grounds that their failure-to-warn claims were pre-empted by the Food, Drug and Cosmetics Act. As the pleadings were too vague to establish that the drug companies had specific or new information that could have led to a relabeling with better warnings about side effects, the state claims were pre-empted by the federal regulation process for the drug.

The underlying plaintiffs' legal efforts on appeal were led by Miller Weisbrod attorney Lawrence Lassiter. He did not respond to a request for comment, nor did Salim-Beasley name attorney Robert Salim.

The drug companies were represented on appeal by Hogan Lovells partner Neal Katyal. He also did not respond to a request for comment.

In a joint statement provided by a spokeswoman, Bristol‐Myers Squibb and Pfizer said they were pleased with the appellate panel's decision, and to put the suits behind them.

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