The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge
These cases are brought by the state of Louisiana to obtain
reimbursement for payments made with its own funds and federal
funds in its Medicaid programs for Zyprexa, a drug manufactured by defendant, Eli Lilly and Company, Inc. ("Eli
Lilly"). The drug was allegedly prescribed and used for
"off-label" purposes i.e., to treat diseases for which it was
not primarily designed and authorized. Motions by the defendants
to dismiss and by the plaintiff to remand are denied.
Defendants move to dismiss on the following grounds:
1. Private Counsel did not have express or implied
authority to file these suits [on behalf of the State
2. Private Counsel's arrangement with the Attorney
General is a contingency fee agreement, . . .
prohibited under Louisiana law [since it] violates
the separation of powers provisions of the Louisiana
3. Even if a contingency fee arrangement were lawful,
the arrangement between private counsel and the
Attorney General does not meet the requirements of
Louisiana law for professional services contracts
between state agencies and outside counsel; and
4. The arrangement between Private Counsel and the
Attorney General has not been approved by the
Louisiana Office of Contractual Review, and is
Not. of Mot. to Dismiss at 2.
The capacity of the Attorney General to employ counsel is not
contestable. His authority to authorize payment of counsel is a
question of Louisiana law. Counsel, not defendants, bear the risk
of nonpayment of fees. If the cases result in a recovery this
court will consider authorizing fees, at which time it will
revisit the Louisiana law on fees.
The motion to dismiss is denied.
III. Motion to Remand to Federal Court
Defendants move to remand the cases to the United States
District Court for the Western District of Louisiana. Discovery
and settlement negotiations are in progress. A remand would be premature. It would frustrate the purpose of the MDL
procedures which are designed to prevent unnecessary duplicative
discovery work by transferor courts.
The motion to remand to the federal district court in Louisiana
is denied, with leave to renew.
IV. Motion to Remand to State Court
A. Federal Question Jurisdiction
Plaintiff claims that this court is without jurisdiction to
hear the cases because the complaints do not present a federal
question. It moves to remand the cases to the state court from
which they were removed by defendants.
Defendants suggest that a recent Supreme Court case has
resolved the question against plaintiff. See Grable & Sons Metal
Prods., Inc. v. Darue Eng'g & Mfg., 125 S.Ct. 2363, 2366 (2005)
("We granted certiorari . . . to resolve a split within the
Courts of Appeals on whether Merrell Dow Pharmaceuticals v.
Thompson, 478 U.S. 804 (1986), always requires a federal cause
of action as a condition for exercising federal ...