1993 DES Case: Wind v. Eli Lilly & Co.

Abstract

“Plaintiff Janice Wind, a New York domiciliary, sued defendant pharmaceutical companies in New York state court in 1986. She claimed injuries resulting from her mother’s ingestion of the drug diethylstilbestrol (“DES”) during pregnancy. Justice William D. Friedmann, Supreme Court of New York, Queens County, has presided over motions and discovery. Defendants Eli Lilly & Company (“Lilly”) and The Upjohn Company (“Upjohn”) claim that on January 29, 1993, shortly before jury selection was to begin, plaintiff reached a settlement with defendant E.R. Squibb & Sons, Inc. (“Squibb”). Although there is no written record available, Lilly and Upjohn point to Squibb’s absence from subsequent court proceedings as evidence confirming Squibb’s advice that it had settled.

WIND v. ELI LILLY & CO., Leagle, 19931119814FSupp305_11047, February 23, 1993.

On February 4, 1993 defendants Lilly and Upjohn removed the case to federal court pursuant to 28 U.S.C. § 1441. Their grounds were that with Squibb, the only New York defendant, no longer in the case, complete diversity exists between the plaintiff and the remaining defendants. Defendants believe that removal would be advantageous because the federal court offers them greater latitude in conducting discovery. Based on information allegedly recently uncovered, they contend that if they are permitted to depose the doctor of plaintiff’s mother and obtain the mother’s medical history, they could obtain proof that plaintiff was never exposed to DES in utero. Such discovery in state court is limited. See in the Matter of New York County DES Litigation.

Plaintiff moves to remand the case to state court. She characterizes defendants’ attempt to remove the case on the eve of trial as “frivolous” and a “misuse of the judicial process.”.

First, plaintiff denies that any settlement was reached by her with Squibb because she did not consent to it. She states in an affidavit:

  • That I was advised that due to a confidentiality agreement entered into between the Squibb attorneys and my attorneys, the total sum could not be communicated to me.
  • That I was advised that the sums that would be allocated to each of the plaintiffs represented by the Finz office would depend upon many factors such as the strength and weakness of each individual case.
  • That this procedure of a global sum was consistent and in keeping with the manner in which cases that fell into the category of mass tort litigation was handled historically by the Courts and the Special Master in the past.
  • That I advised my attorneys that I would not settle with Squibb without settling with all of the named defendants in my case.
  • That I did not consent to a piecemeal settlement with any single defendant and that I would give consent only to a settlement with all defendants at the same time.

Defendants argue that plaintiff’s purported refusal to accept the Squibb settlement is in bad faith and is motivated solely by plaintiff’s desire to avoid removal to federal court. It was only upon the filing of the removal document, defendants claim, that there was any dispute as to the existence of a settlement between plaintiff and Squibb. They urge the court to hold a hearing on the circumstances surrounding the settlement. For reasons indicated below, the court need not consider the serious factual, ethical and privilege problems raised in this affidavit proffered by plaintiff’s attorney.

Second, plaintiff claims that even if complete diversity now exists, as a result of Squibb’s absence from the case, removal would still be precluded by 28 U.S.C. § 1446(b) which places a limitation of one year from the commencement of an action for a defendant to remove the action to federal court based on diversity of citizenship. She argues that the statute, which was amended in 1988 to include this one-year limitation, should be applied to cases initiated prior to the amendment. Defendants submit that the one year limitation in the present statute should not be applied to cases brought prior to the 1988 amendment.

Finally, plaintiff claims that even if the court finds that the removal statute should not be applied retroactively, defendants are precluded from removing the case under the pre-1988 version of the statute because the case was removable from its inception in 1986. According to plaintiff, defendants’ receipt of pleadings in numerous other DES cases involving Squibb put them on notice that Squibb is not a New York domiciliary. Defendant Squibb’s absence from the litigation, therefore, would have no effect on the diversity issue. If defendants wanted to petition for removal they should, plaintiff contends, have done so in 1986, thirty days after defendants received the initial pleadings.

Also at issue is whether defendants possess the “order or other paper” required by 28 U.S.C. § 1446(b) which would serve as notice that diversity of citizenship now exists. Although defendants concede that they have no tangible document to evidence the settlement with Squibb, they argue that the settlement discussion coupled with the subsequent absence of Squibb from the proceedings constitute a good faith basis for the removal petition.

In the interim, while the remand motion is being decided, the court has before it defendants’ discovery request. Plaintiff objects to any action by the court that affects the substance of the litigation. She insists that the court has only limited power to consider the issue currently before it — whether the case may be removed to federal court.”

… read the full paper WIND v. ELI LILLY & CO., on Leagle.

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