GREMO v. BAYER CORPORATION

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

KIMBERLY GREMO, 1:19-cv-13432-NLH-AMD Plaintiff,

v. MEMORANDUM OPINION & ORDER BAYER CORPORATION, BAYER HEALTHCARE LLC, BAYER HEALTHCARE PHARMACEUTICALS, INC., GE HEALTHCARE, INC., GENERAL ELECTRIC COMPANY, MALLINCKRODT, INC., MALLINCKRODT LLC, GUERBERT LLC, LIEBEL-FLARSHEIM COMPANY LLC, AMERISOURCE BERGEN CORPORATION, AMERISOURCE BERGEN DRUG CORPORATION,

Defendants.

APPEARANCES: KIMBERLY GREMO 5 CINDY LANE MARMORA, NJ 08223

Plaintiff appearing pro se

JENNIFER GREENBLATT, pro hac vice EDWARD DUMOULIN, pro hac vice GOLDMAN ISMAIL TOMASELLI BRENNAN & BAUM LLP 564 W. RANDOLPH ST., STE. 400 CHICAGO, IL 60661

WILFRED P. CORONATO MCCARTER & ENGLISH LLP FOUR GATEWAY CENTER 100 MULBERRY ST. NEWARK, NJ 07102

On behalf of Defendants Bayer Corporation, Bayer HealthCare LLC, and Bayer HealthCare Pharmaceuticals Inc. STEPHEN G. TRAFLET DEBRA M. ALBANESE TRAFLET & FABIAN 264 SOUTH STREET MORRISTOWN, NJ 07960

MICHAEL L. O’DONNELL, pro hac vice JEREMY A. MOSELEY, pro hac vice WHEELER TRIGG O’DONNELL LLP 370 SEVENTEENTH STREET, #4500 DENVER, COLORADO 80202

On behalf of Defendants GE Healthcare Inc. and General Electric Company

ERIN (LOUCKS) LEFFLER SHOOK, HARDY & BACON L.L.P. TWO COMMERCE SQUARE 2001 MARKET STREET, SUITE 3000 PHILADELPHIA, PA 19103

DEVIN K. ROSS, pro hac vice ROBERT T. ADAMS, pro hac vice SHOOK, HARDY & BACON L.L.P. 2555 GRAND BOULEVARD KANSAS CITY, MO 64108

On behalf of Defendants Mallinckrodt, Inc., Mallinckrodt LLC, Amerisource Bergen Corporation, and Amerisource Bergen Drug Corporation

JAMIE L. KENDALL BRAD M. WELSH ALEXANDRA H. SCHULZ KENDALL LAW PC 308 E. LANCASTER AVENUE, SUITE 315 WYNNEWOOD, PENNSYLVANIA 19096

BRIAN W. SHAFFER MORGAN LEWIS & BOCKIUS LLP 1701 MARKET STREET PHILADELPHIA, PENNSYLVANIA 19103-2921

On behalf of Defendants Guerbet LLC and Liebel-Flarsheim Company, LLC HILLMAN, District Judge WHEREAS, this matter concerns FDA-approved gadolinium-based contrast agents (“GBCAs”) administered intravenously by medical

professionals to enhance the quality of magnetic resonance imaging (“MRI”); and WHEREAS, Plaintiff, Kimberly Gremo, claims that Defendants’ GBCAs caused her “gadolinium toxicity, or Gadolinium Deposition Disease (GDD), as characterized by a multitude of symptoms,” including “skin issues including rashes,” “teeth issues including darkened teeth and spots,” “brain fog and memory loss,” and “loss of smell”; and WHEREAS, Plaintiff has asserted two counts for Defendants’ alleged violations of New Jersey’s Product Liability Act (PLA), N.J.S.A. 2A:58C-2: failure to warn (Count I) and defective design (Count II), and Plaintiff has also asserted a breach of

express warranty claim against Defendants pursuant to N.J.S.A. 12A:2-313 (Count III);1 and

1 This Court exercises subject matter jurisdiction over Plaintiff’s complaint pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over Plaintiff’s other state law claims under 28 U.S.C. § 1367. (See Docket No. 110 at 4-7, explaining that even though the three counts in Plaintiff’s complaint assert claims based on state law, on the face of Plaintiff’s complaint, over which she is the “master,” she has also raised claims arising under the laws of the United States, as well as claims that necessarily depend on resolution of a substantial question of federal law, to both of which § 1331 applies.) WHEREAS, when Plaintiff filed her complaint she was represented by counsel, but on November 16, 2020, Plaintiff’s counsel’s motion to withdraw their representation of Plaintiff

was granted (Docket No. 138); and WHEREAS, since that time, Plaintiff entered her appearance pro se, and subsequently represented to the Court that she has been unsuccessful in her efforts to secure new counsel; and WHEREAS, on March 4, 2021, Plaintiff’s motion for the appointment of pro bono counsel was denied without prejudice by Judge Ann Marie Donio, U.S.M.J., with Judge Donio directing that “if counsel does not enter an appearance on Plaintiff’s behalf by April 5, 2021, Plaintiff may file an application to proceed in forma pauperis and, in the event such application is granted, [Plaintiff] may then file a renewed motion for the appointment of counsel, addressing the factors set forth in Tabron v. Grace,

6 F.3d 147, 153 (3d Cir. 1993)” (Docket No. 149); and WHEREAS, on April 5, 2021, Plaintiff filed an IFP application (Docket No. 153); and WHEREAS, the Court notes that pursuant to 28 U.S.C. § 1915, which refers to “prisoners” but federal courts apply § 1915 to non-prisoner IFP applications, see Hickson v. Mauro, 2011 WL 6001088, *1 (D.N.J.2011) (citing Lister v. Dept. of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (“Section 1915(a) applies to all persons applying for IFP status, and not just to prisoners.”) (other citations omitted)), a court may: • “[A]uthorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees”; • “Direct payment by the United States of the expenses of (1) printing the record on appeal in any civil or criminal case, if such printing is required by the appellate court; (2) preparing a transcript of proceedings before a United States magistrate judge in any civil or criminal case . . . ; and (3) printing the record on appeal if such printing is required by the appellate court . . .”; • Direct that the “officers of the court shall issue and serve all process, and perform all duties in such cases”; and • “The court may request an attorney to represent any person unable to afford counsel”; and WHEREAS, the Court has reviewed Plaintiff’s IFP application and finds that she meets the requirements to obtain the benefits afforded by § 1915; THEREFORE, IT IS on this 9th day of April , 2021 ORDERED that Plaintiff’s application to proceed in forma pauperis [153] be, and the same hereby is, GRANTED.2

s/ Noel L. Hillman At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

2 This Court does not opine on whether any second motion by Plaintiff for the appointment of counsel should be granted or denied.