Federal Judge Dismisses Bravelle Lawsuit in Unusual Removal Situation

Chicago, ILA federal judge has dismissed a Bravelle lawsuit against Ferring Pharmaceuticals, the maker of Bravelle infertility drug, and Stericycle, the company that over saw the Bravelle recall, after plaintiff attorneys filed a motion to send the case back to state court.

Plaintiff attorneys argued that the case was improperly removed from state to federal court but the judge disagreed and dismissed the case entirely.

The lawsuit Rahima Kashif Bahalim et al v. Ferring Pharmaceuticals Inc. et al, Case No. 16 C 8335, Northern District of Illinois, Eastern Division, was originally filed in July 2016 in the Circuit Court of Cook County, Illinois, and arose from Ferring Pharmaceutical's 2015 recall of the prescription infertility drug Bravelle, the brand name for the generic drug urofollitropin, which is used to treat infertility in women.

Bravelle is used to stimulate egg maturation and multiple follicular development in women and commonly used for in vitro fertilization (IVF) and other fertility treatments.

The plaintiffs, who were citizens of Texas and Utah, alleged that they consumed Bravelle that belonged to multiple lots of the recalled prescription drug that failed to meet potency specifications.

The lawsuit also alleged that defendant Stericycle which administered the Bravelle recall, had a duty to warn the plaintiffs about the allegedly defective Bravelle but failed to do so.

In August 2016, attorneys for Ferring Pharmaceuticals removed the lawsuit from the state court to federal court based on what's known as diversity jurisdiction, which gives the federal court power to hear the case as long as no plaintiff in the lawsuit shares a state of citizenship with any defendant.

Then plaintiff attorneys filed a motion to remand the case back to state court based on the "forum defendant" rule, which allows plaintiff attorneys to keep cases in state court if a defendant is being sued in the state court where it is headquartered or located, as in the case of Stericycle, which is located in Illinois.

In response, Stericycle's attorneys filed a motion to dismiss, claiming that the plaintiffs had "fraudulently joined" Stericycle as a defendant. District Judge Amy St. Eve agreed.

"It appears that plaintiffs used the forum defendant rule as a device to improperly join defendant Stericycle to avoid removal to federal court," wrote the judge.

"Plaintiffs' argument that removal is improper because defendant Stericycle did not consent to removal is misplaced because plaintiffs fraudulently joined Stericycle to this lawsuit," wrote St. Eve, granting Stericyle's motion to dismiss.

That order left out-of-state plaintiffs suing out-of-state defendant Ferring, a factor that prompted St. Eve to dismiss the entire case:

"Because plaintiffs have failed to establish that defendant Ferring engaged in suit-related conduct, namely, that defendant Ferring had sufficient minimum contacts with Illinois, the court dismisses plaintiffs' claims against defendant Ferring for lack of personal jurisdiction."