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WIND v. ELI LILLY & CO.
February 10, 1993
JANICE WIND, Plaintiff,
ELI LILLY & COMPANY, E.R. SQUIBB & SONS, INC., and THE UPJOHN COMPANY, Defendants.
The opinion of the court was delivered by: JACK B. WEINSTEIN
Plaintiff's motion to remand this matter to the state court is granted. The one-year time limitation on removal of diversity jurisdiction cases in 28 U.S.C. § 1446(b) precludes defendants from removing this case to federal court more than six years after the complaint was filed. The statute as amended in 1988 must be applied to all pending cases including those commenced prior to the amendments. While the court has power to grant discovery requests while it is considering the remand motion, in the exercise of discretion these requests are left for the state court after remand.
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.
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. See 28 U.S.C. § 1332. 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, 168 A.D.2d 44, 570 N.Y.S.2d 804 (1st Dep't 1991).
Plaintiff moves to remand the case to state court. See 28 U.S.C. § 1447. She characterizes defendants' attempt to remove the case on the eve of trial as "frivolous" and a "misuse [of] the judicial process." Transcript at 6 (Feb. 4, 1993).
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 ...
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