Curtis Ulleseit v. Bayer Corp.

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 16, 2020
• Docket: 19-15778
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 16 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CURTIS ULLESEIT; LISA WEHLMANN, No. 19-15778

Plaintiffs-Appellees, D.C. No. 3:17-cv-07026-JD

v. MEMORANDUM* BAYER HEALTHCARE PHARMACEUTICALS INC.; et al.,

Defendants-Appellants,

and

BAYER PHARMA AG, FKA Bayer Schering Pharma AG; et al.,

Defendants.

BETH WINKLER, No. 19-15782

Plaintiff-Appellee, D.C. No. 3:18-cv-03077-JD

v.

BAYER HEALTHCARE PHARMACEUTICALS INC.; et al.,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Page 2 of 6

MCKESSON CORPORATION; MCKESSON MEDICAL-SURGICAL INC.,

Appeal from the United States District Court for the Northern District of California James Donato, District Judge, Presiding

Submitted September 14, 2020** San Francisco, California

Before: WATFORD, FRIEDLAND, and MILLER, Circuit Judges.

Bayer HealthCare Pharmaceuticals Inc., Bayer Corporation, and Bayer

HealthCare LLC (collectively “Bayer”) appeal from the district court’s order

remanding five cases to California Superior Court.1 Plaintiffs are California

residents who have sued Bayer and other defendants under state law for their role

in manufacturing, marketing, and distributing the prescription drug Magnevist. We

affirm in part and dismiss in part.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1 Before the district court issued its remand order, the parties stipulated that plaintiffs’ motions to remand in each of the five cases could be resolved based on the briefing filed in one of them. These cases were then consolidated into this appeal. Two cases remain before us. Page 3 of 6

1. Bayer sought to remove this action under §§ 1332 and 1442(a)(1) of Title

28 of the U.S. Code. The district court held that neither provision provides a basis

for removal. Under our recent decision in County of San Mateo v. Chevron Corp.,

960 F.3d 586 (9th Cir. 2020), we may review the district court’s remand order only

to the extent that it is based on § 1442(a)(1). See id. at 595; see also Patel v. Del

Taco, Inc., 446 F.3d 996, 998 (9th Cir. 2006). We therefore lack jurisdiction to

review Bayer’s arguments concerning fraudulent joinder and diversity jurisdiction

under § 1332.

2. Section 1442(a)(1) “authorizes removal of a civil action brought against

any person ‘acting under’ an officer of the United States ‘for or relating to any act

under color of such office.’” Leite v. Crane Co., 749 F.3d 1117, 1120 (9th Cir.

2014) (quoting 28 U.S.C. § 1442(a)(1)). To invoke the statute, Bayer must show

that (1) it is a “person” within the statute’s meaning, (2) a causal nexus exists

between plaintiffs’ claims and the actions it took under a federal officer’s direction,

and (3) it has a “colorable” federal defense to plaintiffs’ claims. See Fidelitad, Inc.

v. Insitu, Inc., 904 F.3d 1095, 1099 (9th Cir. 2018). The first requirement is not in

dispute as “corporations are ‘person[s]’ under § 1442(a)(1).” Goncalves ex rel.

Goncalves v. Rady Children’s Hosp. San Diego, 865 F.3d 1237, 1244 (9th Cir.

2017). To satisfy the second requirement, Bayer must show both that it acted

under a federal officer and that those actions were causally connected to plaintiffs’ Page 4 of 6

claims. See id. The central dispute in this case is whether Bayer acted under the

direction of the Food and Drug Administration (“FDA”) while undertaking the

actions that are the subject of plaintiffs’ claims. We conclude that it did not.

For Bayer’s actions to constitute “acting under” the FDA, Bayer’s efforts to

assist or otherwise help carry out the FDA’s duties or tasks must go beyond

“simply complying with the law.” See Fidelitad, 904 F.3d at 1100 (quoting

Watson v. Philip Morris Cos., 551 U.S. 142, 152 (2007)). Bayer argues that it

acted under the FDA by advising two FDA committees about gadolinium-based

contrast agents and because plaintiffs’ claims are based on the defectiveness of

warnings approved by the FDA after those same committee meetings, in which

Bayer participated. We disagree. Bayer’s arguments fail because there is no

evidence it acted under the FDA’s “subjection, guidance, or control.” Watson, 551

U.S. at 151 (citation omitted). Unlike the “paradigm” of “a private person acting

under the direction of a federal law enforcement officer,” Fidelitad, 904 F.3d at

1099, or the circumstance of government contractors, see, e.g., Leite, 749 F.3d at

1123–24, here there is nothing “distinct from the usual regulator/regulated

relationship,” Watson, 551 U.S. at 157. By allowing Bayer to voluntarily

participate in the FDA advisory committees, the FDA neither delegated any legal

authority to Bayer, id. at 156, nor “shar[ed] . . . day-to-day operating Page 5 of 6

responsibility” with Bayer, Goncalves, 865 F.3d at 1246 (citation omitted). As a

result, Bayer did not “act under” the FDA.

Even if Bayer could establish that it “acted under” the FDA, Bayer cannot

establish that participating in the advisory committees is causally connected to

plaintiffs’ claims. Significantly, the FDA did not direct Bayer’s alleged efforts to

conceal the risks of developing Gadolinium Deposition Disease when individuals

with normal or near-normal kidney function—like plaintiffs—are injected with

Magnevist, a gadolinium-based contrast agent manufactured by Bayer for MRI

scans. Nor did the FDA prohibit Bayer from considering more robust warning

labels for Magnevist. The allegedly defective warning labels did not occur

“because of what [Bayer] w[as] asked to do by the Government.” Goncalves, 865

F.3d at 1245 (citation and emphasis omitted). Bayer thus fails to establish that a

causal nexus exists between any actions taken under the FDA and plaintiffs’

claims.2

For these reasons, the district court properly rejected Bayer’s attempt to

remove this action under 28 U.S.C. § 1442(a)(1).

2 Bayer urges us to reconsider our case law on the “causal nexus” requirement due to Congress’s 2011 amendment of 28 U.S.C. § 1442. We do not think there is a meaningful difference between the causal nexus requirement articulated by our pre-2011 cases and the requirement imposed by the amended statute. In any event, because we conclude that Bayer did not act under a federal officer, our disposition does not depend on whether or not those acts are causally connected to plaintiffs’ claims. Page 6 of 6

Bayer’s motion for judicial notice, filed on September 10, 2019 (Docket No.

18), is DENIED.

DISMISSED in part and AFFIRMED in part.