Opinion
Civil Action No. 02-006, Section "N"(2)
March 25, 2002
ORDER AND REASONS
This lawsuit was removed to Federal District Court from the Twenty-Second Judicial District Court for the Parish of St. Tammany, Louisiana, based on diversity jurisdiction, defendants alleging that the physician defendants, Dr. Christy Graves and Dr. Rory Doffour, and pharmacy defendants, Walgreen Co., Inc., The Medicine Shoppe of Greater Baton Rouge, Inc., and Winn Dixie Louisiana, Inc., were fraudulently joined for the sole purpose of attempting to defeat or prevent removal. The fifteen individual plaintiffs, all residents of St. Tammany Parish, Louisiana, jointly filed a motion to remand this case, challenging removal and arguing that there is neither federal question jurisdiction nor complete diversity, and therefore this Court is without jurisdiction pursuant to 28 U.S.C. § 1446.
See K-Mart Corporation's Petition for Removal [Rec.Doc. No. 1]; and SmithKline Beecham Corporation's Joinder to Removal [Rec.Doc. No. 2].
I. BACKGROUND
Defendants, GlaxoSmithKline Corporation; GlaxoSmithKline Consumer Healthcare, a division of GlaxoSmithKline Corporation; Glaxo Wellcome, Inc.; and GlaxoSmithKline PLC (collectively "GlaxoSmithKline"), are pharmaceutical companies that allegedly manufactured and marketed the prescription drug Alosetron Hydrochloride, now commonly known as "LOTRONEX," to treat Irritable Bowel Syndrome ("IBS"). LOTRONEX was first introduced into the United States market in February, 2000, and was withdrawn from the market in November, 2000, after reports of serious complications related to its use.
At oral argument, plaintiffs' counsel made reference to the Physician's Desk Reference ("PDR"). The Court has referred to the 2001 PDR, 1437-38 (noting that "LOTRONEX is indicated for the treatment of irritable bowel syndrome (IBS) in women whose predominant bowel symptom is diarrhea" and that "the safety and effectiveness of LOTRONEX in men have not been established). Warnings noted in the PDR include, inter alia, that: (1) Acute ischemic colitis was infrequently reported in patients receiving LOTRONEX in 3-month clinical trials, although a causal connection between treatment with the drug and acute colitis have not been established; (2) Drug therapy should be discontinued in patients experiencing rectal bleeding and a sudden worsening of abdominal pain; and (3) that constipation is a frequent dose-related side effect of treatment with LOTRONEX. Id. At 1438. Patient information warns of sudden worsening of abdominal pain, rectal bleeding and constipation, noting that the list is not complete, and that "[y]our doctor or pharmacist can give you a more complete list of side effects with LOTRONEX" and further instructing that "if you have questions about the LOTRONEX, ask your doctor or pharmacists," and "they can show you detailed information about LOTRONEX that was written for health care professionals." Id.
See Plaintiffs' Petition for Damages, at ¶¶ 9-11.
Fifteen individual plaintiffs, men and women residents of St. Tammany Parish, filed a petition or damages on November 21, 2001 in the Twenty-Second Judicial District Court for the Parish of St. Tammany, alleging only state law claims against GlaxoSmithKline, the manufacturer of the prescription drug LOTRONEX; a number of pharmacy retailers, three of which are non-diverse; and two non-diverse physicians practicing in St. Tammany Parish, Dr. Christy Graves and Dr. Rory Doffour. It is clear from the allegations of the Plaintiffs' Petition for Damages that each and every one of the plaintiffs was undergoing treatment for the condition diarrhea prominent IBS, and was prescribed LOTRONEX drug therapy during the same succinct time frame (i.e., the ten-month period between February and November of 2000).
As to the two non-diverse physician defendants, the Complaint alleges medical malpractice, i.e., that they failed to act as an ordinarily careful physician would in prescribing LOTRONEX, to-wit: (1) in failing to conduct monthly gastrointestinal tests after being warned about the potential dangers; (2) failing to determine the patient's history adequately so as to determine whether the plaintiff patient was an appropriate candidate for LOTRONEX therapy; (3) failing to rule out the existence of recognized contraindications prior to prescribing LOTRONEX therapy; and (4) prescribing LOTRONEX prior to determining whether the plaintiff patient would respond favorably to other established medications. Plaintiffs further allege that the non-diverse physician defendants breached their duty of care to the plaintiffs of the contents of the FDA warnings or the "Dear Doctor" letter from Glaxo Wellcome, Inc., failing to withdraw the prescription, failing to suggest patient follow-up examinations, and in approving prescription refills for LOTRONEX. Petition for Damages at paragraphs 62-64.
Plaintiffs further allege breach of duty of care by the non-diverse physician defendants in that they knew of other medical professionals' opinions that the known and suspected risks (life-threatening gastro-intestinal injuries), outweighed the purported benefits of LOTRONEX drug therapy. Finally, plaintiffs claim that the non-diverse physician defendants are guilty of negligent monitoring in that they failed to test and failed to inquire regarding the development of gastrointestinal complications and that they failed to personally consult with the patient plaintiff when the manufacturer removed LOTRONEX from the market. Id. at 65-66.
The defendants removed the mailer to this Court on December 24, 2001, alleging that the physicians and pharmacies were fraudulently joined to defeat otherwise complete diversity.
II. LAW ANALYSIS A. Fraudulent Joinder
It is axiomatic that incomplete diversity between the parties destroys the Federal Court's diversity jurisdiction. See 28 U.S.C. § 1332; and Strawbridge v. Curtis, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806). Defendants contend that non-diverse pharmacy defendants and the non-diverse physician defendants are "fraudulently joined," and thus there presence in this case does not defeat diversity.
The standard for determining "fraudulent joinder" is well-established in the Fifth Circuit. In Badon v. RJR Nabisco, Inc., 224 F.3d 382 (5th Cir. 2000), the Court restated the applicable law, noting that:
[W]e have consistently recognized that diversity removal may be based on evidence outside of the pleadings to establish that the plaintiff has no possibility of recovery on the claim or claims asserted against the named resident defendant and that hence the defendant is fraudulently joined and his citizenship must be disregarded for jurisdictional purposes. Thus it is clear that although a state Court complaint on its face may allege a state law claim against an in-state defendant that does not preclude it from being removable (by a non-resident defendant), when filed, if the plaintiff's pleading is pierced and it is shown that as a matter of law there is no reasonable basis for predicting that the plaintiff might establish liability on that claim against the in-state defendant.Id. at 390 (citations omitted and emphasis added). In Burden v. Dynamics Corp., 60 F.3d 213 (5th Cir. 1995), the Fifth Circuit succinctly stated: "If the plaintiff has any possibility of recovery under state law against the party whose joinder is questioned, then the joinder is not fraudulent in fact or in law. Id. at 216 (emphasis added). The focus of the inquiry is whether there is "any possibility of recovery under state law" or "a reasonable basis for predicting that plaintiff might establish liability on that claim." Burden v. Dynamics, 60 F.3d at 216.
The burden upon the removing party is indeed a heavy one:
If, having assumed all of the facts set forth by the plaintiff to be true and having resolved all uncertainties as to the state substantive law against the defendants, the district Court should find that there is no possibility of a valid cause of action being set forth against the in-state defendant(s), only then can it be said that there has been a "fraudulent joinder." However, if there is even a possibility that a state Court would find a cause of action stated against any one of the named in-state defendants on the facts alleged by the plaintiff, then the federal Court must find that the in-state defendant(s) have been properly joined, that there is incomplete diversity, and that the case must be remanded to the state Courts.B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549-50 (5th Cir. 1981) (citation omitted).
Defendants contend that diversity jurisdiction was wrongfully defeated by the addition of the two defendant local physicians, on the one hand, and the domestic pharmacy defendants, on the other. It is uncontested that complete diversity exists between the plaintiffs and the Glaxosmithkline defendants, i.e., the alleged pharmaceutical manufacturers/marketers.
B. The Non-Diverse Physicians
At oral argument, it was established that plaintiffs, as a group, make no claims against the physicians, but rather that plaintiff Jannette Howton is the only plaintiff who has sought to file suit against her physician, Dr. Christy Graves. None of the other plaintiffs has sued his/her physician. Counsel has admitted that no plaintiff has filed a claim against Dr. Rory Doffour, and thus his status as defendant in evaluating diversity jurisdiction will be disregarded. As to plaintiff Howton's claim against Dr. Graves, however, despite defendants' impassioned and reasoned argument to the contrary, this Court will not depart from the long line of jurisprudence emanating from the Eastern District of Louisiana, most recently cited by the undersigned in Ohler v. Purdue Pharmaceuticals, 2002 WL 88945 (E.D.La. 2002), holding that failure to comply with Louisiana's Medical Malpractice Act does not preclude a finding of the possibility of recovery under a state cause of action against the non-diverse physician defendants. More to the point, plaintiffs argue that, as to the non-diverse physician defendant, the removing parties cannot demonstrate by clear and convincing evidence that there is no possibility of recovery from the physician defendant, Dr. Graves, nor have they demonstrated outright fraud in pleading the jurisdictional facts. Hence, at a minimum, this Court would have no jurisdiction over plaintiff Howton's claims. Defendants suggest that, in the event the Court finds jurisdiction over the remaining plaintiffs' claims, the Howton claims be severed and remanded, whereupon the remaining claims would fall within the diversity jurisdiction of this Court. This argument hinges on the finding of fraudulent joinder of the local defendant pharmacies.
It is assumed that the appropriate motion to dismiss will be filed as to Dr. Doffour.
Most recently in another LOTRONEX case removed to Eastern District, Annette S. Alexis, et al v. GlaxoSmithKline Corp., et al, E.D.La. C.A. No. 02-059 "E", 2002 WL 389146 (E.D. La.)(Livaudais, J.), the Court denied the non-diverse physician defendants' Fed.R.Civ.P. 12 (b)(6) motion to dismiss or stay.
C. The Non-Diverse Pharmacy Defendants
GlaxoSmithKline argues that the three non-diverse pharmacy defendants were fraudulently joined because, under the Louisiana law, there is no claim against these pharmacies under any theory regarding their dispensing the prescription drug in accordance with the physician's instructions. GlaxoSmithKline argues that with the exception of the particular drug involved, the facts of this case are identical to those in In re Rezulin, 168 F. Supp.2d 136 (S.D.N.Y. 2001).
In In re Rezulin, Judge Kaplan of the Southern District of New York held that the plaintiff who made no claims against the non-diverse physicians had improperly joined their claims with those of the plaintiffs who had made claims against the non-diverse physicians, and that the plaintiffs' misjoinder could not defeat the defendants' right to remove the diverse and improperly joined claims. The district court ordered the claims severed along the lines previously discussed, and then remanded only the non-diverse claims. In re Rezulin, 168 F. Supp.2d 136 (S.D.N.Y. 2001).
It is clear that under Louisiana jurisprudence, a pharmacist has a personal duty to his or her customers. In Guillory v. Dr X, 679 So.2d 1004, 1009 (La.App. 3d Cir. 1996), the Court examined Louisiana Fifth Circuit's opinion Gassen v. East Jefferson Hospital, 628 So.2d 252 (La.App. 5th Cir. 1993), which reviewed all of the relevant precedents and summarized state law regarding the duties of a pharmacist, to wit: "A pharmacist has a duty to fill a prescription correctly and to warn the patient or to notify the prescribing physician of an excessive dosage or of obvious inadequacies on the face of the prescription which created a substantial risk of harm to the patient." Guillory, 679 So.2d at 1010. See also Aucoin v. Vicknair, et al . C.A. No. 97-1885, 1997 WL 539889 (E.D.La.) (Vance, J.) (Granting motion to remand after finding the "possibility of a valid cause of action" against the local pharmacist.)
See also In re Rezulin Products Liability Litigation, 133 F. Supp.2d 272, 294 (S.D.N.Y. 2001) ("Given the limited scope of the pharmacist's duty under Louisiana law, it is reasonable to suppose that a pharmacist, who is not required to provide any information to the patient other than whether a dosage is excessive or whether there are deficiencies on the face of the prescription, could be held liable for failing to tell patients of the harmful side-effects of Rezulin, whether that failure is couched in terms of failure to warn, breach of warranty or fraudulent misrepresentation.")
Plaintiffs have asserted a number of claims against the pharmacy defendants, including simple negligence. In this vein, plaintiffs allege that the pharmacy defendants knew or should have known that the drug was defective and unreasonably dangerous, that they had a duty to truthfully report and use reasonable means and efforts to ascertain the truth of the representations they were making to the plaintiffs, and that they negligently failed in their duty to the plaintiffs, which was a proximate cause of their injuries. Plaintiffs further claim under the theory of "Agent Misrepresentation" that the pharmaceutical manufacturer and the pharmacy retailers acted in two capacities, to wit: "as sales agents and independent advisers to physicians . . . offer[ing] the objective professional opinions and advice to physicians and act[ing] independently in many instances." Plaintiffs allege that the pharmacy defendants committed the following intentional acts of misrepresentation about LOTRONEX and its side effects, to wit: knowingly providing false and inaccurate material information to the plaintiffs, knowing that they were not well-educated with regard to pharmacology. Plaintiffs also allege that the pharmacy defendants impliedly and expressly warranted that the LOTRONEX prescription drug was safe for its intended use and breached those warranties by stocking, selling, and serving as a conduit for the defective drug.
Petition for Damages, at paragraphs 52-55.
Id. At paragraph 57.
Id. At paragraph 57(a)-(h).
Id. At paragraph 58.
GlaxoSmithKline argues that "Louisiana case law is consistent with the uniform national rule regarding pharmacy liability, which is that `a pharmacist has no . . . duty [to warn its customers about the potential hazards or side effects of prescription drugs] when the prescription is proper on its face and neither the physician nor the manufacturer has required that the pharmacist give the customer any warning.'" However, plaintiffs allege, inter alia, that the defendant pharmacists knew that the "Patient Insert" failed to apprise the him or her of all of the possible adverse side affects associated with use of LOTRONEX. Considering that the "Patient Insert" advises the patient to ask the pharmacist about LOTRONEX, and further instructs the patient that the pharmacist can give the patient a more complete list of side-effects than the list set forth in the "Patient Insert," it is questionable whether in this particular case the manufacturer has required the pharmacist to give the customer any warning.
GlaxoSmithKline's Opposition to Plaintiffs' Motion to Remand, p. 7.
Suffice it to say, even assuming arguendo that the issue of pharmacy liability is settled to the extent that the manufacturer defendants suggest, based upon the plaintiffs' allegations and the facts and circumstances regarding this particular drug (LOTRONEX), there is a possibility of recovery against one or more of the pharmacy defendants. More to the point, GlaxoSmithKline has failed to demonstrate, as it must, that there is no possibility of recovery against the non-diverse pharmacy defendants under Louisiana law. It further is worth noting that, in so holding, this Court's ruling is limited to this particular drug and the specific allegations of these fifteen individual plaintiffs.
Having reviewed the applicable law, the memoranda of counsel, and heard the oral argument, the Court is of the opinion that the defendant has failed to carry its heavy burden of proving that there is no "possibility of recovery under state law" or that there is "no reasonable basis for predicting recovery" against the non-diverse defendants under the precise facts of this case. Whereas "fraudulent joinder" is properly addressed by the federal District Court, the issue of "misjoinder" is more properly addressed to the state District Court. Accordingly,
III. ORDER
IT IS ORDERED that the plaintiffs' Motion to Remand is GRANTED.
The Clerk of Court is directed to remand this matter to the Twenty-Second Judicial District Court for the Parish of St. Tammany, Louisiana.