In an ongoing lawsuit regarding the antipsychotic drug Risperdal, the Cherokee Nation, plaintiffs in the case, requested that the lawsuit be removed from the federal court and sent back to Oklahoma State Court.

The Cherokee Nation filed the original Risperdal lawsuit against Johnson & Johnson Inc. and subsidiary Janssen Pharmaceutical Inc. in April for misbranding their antipsychotic drug Risperdal.

The plaintiff alleges that the pharmaceutical manufacturers did not provide safety information about the drug, including information about elderly consumers having an increased risk of diabetes and stroke as a result of taking the medication.

Cherokee Nation stated in their formal request that the companies already admitted they sold the drug for unapproved uses back in 2002 and 2003 when the tribe purchased the drug. This was admitted during a plea deal ending a criminal suit by the U.S. Department of Justice. The companies pleaded guilty to a misdemeanor count of encouraging treatment of dementia when Risperdal was only approved to treat schizophrenia at the time.

Johnson & Johnson and Janssen Pharmaceuticals removed the lawsuit from the state level court in July and it went to the federal court. The pharmaceutical companies maintain that the lawsuit deals with federal drug regulations that are not a state matter.

According to Cherokee Nation, “Federal law is not implicated in this state law consumer case, and federal law does not give rise to plaintiff’s cause of action. Federal question jurisdiction does not automatically arise if there is a federal ingredient in a cause of action brought under state law.”

The drugmakers assert the Cherokee Nation was a nominal plaintiff, and the real plaintiffs in the lawsuit should have been Cherokee businesses or health organizations who could have been citizens of another state.

Cherokee Nation disagrees, reiterating that they are the real party of interest, and that any recovered compensation from the Risperdal suit would go to the tribal government, not businesses or organizations.

The Cherokee Nation is considered a sovereign Indian nation and therefore is not considered a “citizen” of the State of Oklahoma. The court request to move the lawsuit back to Oklahoma states, “As such, defendants have not, and cannot, demonstrate diversity jurisdiction under 28 U.S.C. § 1332- which requires complete diversity such that each defendant must be a citizen of some state, which requires United States Citizenship.” It continues, “Federally recognized Indian tribes, as sovereign governments, are similarly situated to states and are not citizens for diversity purposes.”

In addition to the request to have the lawsuit removed back to the State Court of Oklahoma, they are also seeing costs and expenses related to the allegedly improper removal from the state court.

The Risperdal Lawsuit is Case No. 6:15-cv-00280, in the U.S. District Court for the Eastern District of Oklahoma.