Southern District of Florida Upholds Removal of a “Pure Bill of Discovery” in Novartis Elidel Case

November 26, 2006

In 2006, plaintiffs in southern Florida filed a “pure bill of discovery” against Firm client Novartis Pharmaceuticals Corporation.  A pure bill of discovery is a little-used Florida procedure, with parallels in a handful of other states, allowing plaintiffs to obtain pre-suit discovery in order to assess whether they have a cause of action to file a civil lawsuit.  The plaintiffs sought extensive written discovery, document production, and depositions of corporate witnesses concerning Novartis’s drug Elidel.  Novartis removed the case to the United States District Court for the Southern District of Florida and plaintiffs moved to remand, arguing that the amount in controversy requirement for federal jurisdiction had not been satisfied since they sought only discovery, and had as yet made no claim for damages; thus, they contended, there was no amount in controversy.  Novartis responded that plaintiffs’ assertion that they needed pre-suit discovery was false, as evidenced by the fact that the same plaintiffs’ counsel claimed national expertise in Elidel litigation and had already filed two personal injury actions in other jurisdictions without first conducting any discovery.

The U.S. District Court for the Southern District of Florida agreed with Novartis, holding that the pure bill of discovery was “essentially the first step in a personal injury action,” and noting that it “doubts that a bill of discovery is an essential procedural mechanism for Plaintiff.”  The court denied the motion to remand and gave plaintiffs twenty days to amend their complaint to state personal injury causes of action against Novartis.  Plaintiffs subsequently dismissed their suit altogether.

Butzberger v. Novartis Pharm. Corp., Case No. 06-80700-CIV-RYSKAMP/VITUNAC (S.D. Fla. Nov. 27, 2006)