Opinion
CIVIL ACTION NO. 3:03-CV-1659-G
September 19, 2003
MEMORANDUM ORDER
Before the court is the plaintiffs' motion to remand, filed August 14, 2003, and the defendant Wyeth's motion to stay all proceedings pending transfer, filed July 22, 2003. This court heard arguments on both motions at a hearing on September 2, 2003. Having considered the motions, the responses thereto, and the applicable law, the court concludes that the plaintiffs' motion to remand should be denied and that Wyeth's motion to stay should be granted.
I. BACKGROUND
Plaintiffs Carol Cantrell ("Cantrell"), Dorothy Berlin, Jeanie Caswell, Peggy Newman, and Betty Smith, all Texas citizens, seek damages from the defendant Wyeth ("Wyeth") for injuries they claim to have suffered as a result of the using the prescription diet drugs fenfluramine ("Pondimin") and dexfenfluramine ("Redux") formerly distributed by Wyeth. See Plaintiff's First Amended Petition ("Petition") ¶¶ 10-18, located in Index of State Court Documents, Tab 3. Wyeth is a Delaware corporation with its principal place of business in New Jersey. See Defendant Wyeth's Notice of Removal ("Notice of Removal") at 2. Cantrell also sues her prescribing physician, Dr. Stella Kwong ("Kwong"), a Texas citizen, for medical negligence, fraud, and fraudulent concealment. See Petition ¶¶ 6, 61-73. The plaintiffs instituted this action Texas on May 27, 2003 in a district court of Dallas County.
Wyeth removed the case to this court on July 22, 2003, alleging that Kwong was fraudulently joined to prevent removal. Notice of Removal at 3. Wyeth contends that Kwong's joinder is fraudulent because any possible cause of action against her is barred by the applicable statute of limitations. Id. at 4 (citing TEX. REV. CIV. STAT. Art. 4590i, § 10.01 (Vernon Supp. 2003)). Wyeth asserts that this case is one over which this court has subject matter jurisdiction (under 28 U.S.C. § 1332) and which may be removed (pursuant to 28 U.S.C. § 1441 (b)) because "excluding the fraudulently joined defendant [Kwong], it is a civil action between citizens of different states, and the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs." Notice of Removal at 2.
On July 22, 2003, Wyeth also filed a motion to stay all proceedings pending transfer of this case by the Judicial Panel on Multi-District Litigation ("JPMDL") for coordinated or consolidated pretrial proceedings with In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Products Liability Litigation, MDL No. 1203 (E.D. Pa.). Similar cases have been consolidated before the Honorable Harvey Bartle, III, in the United States District Court for the Eastern District of Pennsylvania, to promote judicial efficiency and to avoid inconsistent rulings on recurring issues. See, e.g., McKelvy v. Wyeth, et al., 2003 WL 21750952, at *1 (N.D. Tex. Jul. 8, 2003); McCurdy v. Wyeth, et al., Case No. A-03-CA-054-SS, at 9 (W.D. Tex., Feb. 14, 2003), attached to Notice of Removal as Exhibit 55. Wyeth has notified JPMDL of the existence of this case. Motion to Stay at 2.
This court retains jurisdiction despite the fact that the JPMDL issued a Conditional Transfer Order ("CTO") on September 8, 2003. The CTO does not become effective until it is filed with the clerk of the transferee court; moreover, the order is not transmitted to that clerk until "fifteen (15) days from the entry thereof." Thus, the CTO does not become effective, by its terms, until September 23, 2003.
On August 14, 2003, the plaintiffs filed a motion to remand this case to the state court. They contend that Kwong is properly named as a defendant because (1) at least some of Kwong's conduct occurred within the limitations period, and (2) exceptions to the Texas statute of limitations apply in this case. Motion to Remand at 1-2.
II. ANALYSIS A. The Legal Standard
The primary issue before the court is whether Kwong was fraudulently joined to defeat diversity jurisdiction in this case. To establish that Kwong was fraudulently joined, Wyeth bears the burden of showing that "there is no reasonable basis for predicting that the plaintiff might establish liability . . . against the in-state defendant." Badon v. RJR Nabisco Inc., 224 F.3d 382, 390 (5th Cir. 2000) ("Badon I"); op. after certified question denied, 236 F.3d 282, 286 n. 4 (5th Cir. 2000) ("Badon II") (holding that, to preclude a finding of fraudulent joinder, there must be "arguably a reasonable basis" for predicting that state law would allow recovery). District courts may "pierce the pleadings" and utilize summary judgment-like procedures to determine fraudulent joinder. Travis v. Irby, 326 F.3d 644, 649 (5th Cir. 2003). Nevertheless, in evaluating Wyeth's assertion of fraudulent joinder, any unchallenged or contested issues of fact and any ambiguities of state law must be resolved in the plaintiffs' favor. See id.B. Statute of Limitations
Both Wyeth and Kwong contend there is no reasonable possibility that Cantrell could succeed in her medical negligence, fraud, and fraudulent concealment claims against Kwong because those claims are barred by the statute of limitations. See Defendant Wyeth's Response in Opposition to Plaintiff's Motion to Remand ("Response to Remand") at 3; Defendant Stella Kwong, M.D.'s Original Answer and Request for Jury Trial at 6-10. Although the last date of treatment was October 2000, Response to Remand, Ex. 1, the parties disagree as to whether Kwong's duty as Cantrell's physician extended beyond that date.In Texas, medical malpractice claims are governed by the Medical Liability and Insurance Improvement Act ("the Act" or "Art. 4590i"). TEX. REV. CIV. STAT. Art. 4590i, § 10.01 (Vernon Supp. 2003). Under the Act, all health care liability claims must be filed within "two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim . . . is completed." Id. According to the Texas Supreme Court, the Act measures the limitations period for medical negligence claims from one of three dates: (1) the occurrence of the breach or tort, (2) the last date of the relevant course of treatment, or (3) the last date of the relevant hospitalization. See, e.g., Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001); Husain v. Khatib, 964 S.W.2d 918, 919 (Tex. 1998). A plaintiff may not choose the most favorable of these categories: if the date of the alleged tort is ascertainable, then the statute must run from that date. Shah, 67 S.W.3d at 841. Where the exact date the alleged tort occurred cannot be ascertained, the second category contemplates circumstances wherein the limitations period begins to run from the last date of treatment. Id. For example, in Rowntree v. Hunsucker, the Texas Supreme Court held that, where a patient brought a medical malpractice action against her doctor for failure to diagnose an occluded artery that caused a stroke, the statute began to run on the date of the patient's last visit to the doctor's office in which the doctor had the opportunity to breach his duty to perform an examination to detect the occluded artery. 833 S.W.2d 103, 108 (Tex. 1992). See also Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex. 1987) (suggesting that Art. 4590i contemplates a situation wherein the patient's injury occurs during a course of treatment for a particular condition and the only readily ascertainable date is the last day of treatment); Bejarano v. Wyeth, Case No. L-03-53, at 10 (S.D. Tex. June 27, 2003), attached to Response to Remand as Exhibit E (finding that physician's duty to patient-plaintiff ended on the last date of treatment, which is also when the doctor-patient relationship ended).
Applying the reasoning in Rowntree, this court concludes, as a matter of law, that Kwong's duty to Cantrell ended on the date of her last examination in October 2000. Having reviewed the plaintiffs' amended petition and their memorandum in support of the motion to remand, the court cannot determine the exact date that the alleged torts occurred. Nevertheless, Kwong could have breached her duty to Cantrell only during the existence of the doctor-patient relationship, which ended with Cantrell's last visit to Kwong's office. See Rowntree, 833 S.W.2d at 108; Kimball, 741 S.W.2d at 372; Bejarano v. Wyeth, Case No. L-03-53, at 10. Viewing the facts in a light most favorable to Cantrell, this court finds that any breach or tort by Kwong must have occurred no later than October 2000.
Cantrell contends that Kwong failed to act as a reasonably prudent physician, fraudulently concealed the dangers of Pondimin and Redux, and breached a duty to warn Cantrell of the dangers of those drugs. Petition ¶¶ 61-73.
The Texas Supreme Court has suggested that, when an injury has resulted from the taking of prescribed medications, "[t]here are some situations in which the statute would run from the date of the last drug treatment, if the course of that treatment is the direct cause of the injury." Gross v. Kahanek, 3 S.W.3d 518, 521 (Tex. 1999) (quoting Rowntree, 833 S.W.2d at 105). Accordingly, Wyeth asserts, the statute begins running from the date of last drug treatment. Response to Remand at 3. The medical records provided by Wyeth indicate that Kwong last prescribed drugs to Cantrell in 1996. Id. Also, the plaintiffs' amended petition, ¶ 14, alleges that the diet drugs were removed from the market in September 1997. Given these facts, Wyeth argues that the statute of limitations expired in 1998, two years after the last drug treatment or, in the alternative, in 1999, two years after the drugs were removed from the market. Notwithstanding the seemingly supportive law and facts argued by Wyeth, this court must view both facts and law in favor of Cantrell as plaintiff, which means using the last arguable date from which the statute of limitations could run under Texas law — i.e., October 2000.
Therefore, unless the statute of limitations is extended by either the open courts provision of the Texas Constitution or the fraudulent concealment doctrine, Cantrell's claims against Kwong, first asserted in May 2003, are time-barred.
1. The Open Courts Provision
The plaintiffs assert that the open courts provision of the Texas Constitution permits them to maintain a malpractice action beyond the two-year statute of limitations. Plaintiffs' Memorandum in Support of Motion to Remand at 9 (citing TEX. CONST., art. 1, § 13). They argue that Art. 4590i cuts off Cantrell's common law cause of action before she had "a reasonable opportunity to discover" the nature of her injury. Id. The defendants, in response, allege that Cantrell had ample opportunity to discover her injury and sue within the limitations period because her condition was not latent, and because overwhelming publicity put her on notice to visit her doctor. See Response to Remand at 4-13.The Texas Constitution guarantees that people seeking redress for common-law injuries will not be unreasonably or arbitrarily denied access to the courts. See Shah, 67 S.W.3d at 841. "[O]ur Constitution's open courts provision protects a person from legislative acts that cut off a person's right to sue before there is a reasonable opportunity to discover the wrong and bring suit." Id. The open courts provision applies, however, "only if it would be impossible or exceedingly difficult to discover the injury" within the limitations period. O'Reilly v. Wiseman, 107 S.W.3d 699, 702 (Tex.App. — Austin 2003, pet. denied). See also Gagnier v. Wichelhaus, 17 S.W.3d 739, 744 (Tex.App.-Houston [1st Dist.] 2000, pet. denied) ("[W]hen it is not possible for the plaintiff to discover the injury or wrong within the two-year period, the absolute two-year limitation has been held to be unconstitutional."). Even where the provision does apply, it tolls the two year limitation statute only until a plaintiff "knew or should have known that a cause of action existed." Hellman v. Mateo, 772 S.W.2d 64, 66 (Tex. 1989).
For Cantrell's claim against Kwong to avoid the bar of limitations under the open courts provision, Cantrell has "to show that the nature of the claim was impossible or exceedingly difficult to discover and that she did not or could not have learned of the fact of injury within the two-year period." O'Reilly, 107 S.W.3d at 707. She has failed to make this showing. Indeed, Wyeth's evidence indicates that Cantrell, in the exercise of reasonable diligence, should have known more than two years before she filed this suit that the diet drugs about which she complains in this case had been linked to heart valve problems. The extensive media coverage surrounding the diet drugs starting in September 1997 is more than sufficient to impute knowledge to Cantrell about her claims against Kwong. See Moseley v. Wyeth, Case No. CIV-02-1120-M, at 5 (W.D. Okla. Sept. 13, 2002), attached to Notice of Removal as Exhibit 56 (holding that the widespread publicity surrounding the fen-phen diet drugs from September 1997 through February 2000 was sufficient to put prospective plaintiffs on notice). Knowing she had taken the diet drugs prior to their removal from the market in 1997, and in light of the extensive publicity surrounding the diet drugs, Cantrell did not act reasonably in failing to heed multiple public warnings to seek a medical evaluation. See McCurdy, Case No. A-03-CA-054-SS, at 7 (holding that, "[u]pon learning [facts about the risks to fen-phen users of heart valve problems], a reasonable plaintiff would have heeded the warnings and visited her physician").
2. The Fraudulent Concealment Doctrine
Cantrell maintains that the equitable doctrine of fraudulent concealment estops Kwong from relying on the statute of limitations. Plaintiffs' Memorandum in Support of Remand at 9-10. Cantrell alleges that Kwong fraudulently concealed the "dangers of Pondimin and Redux" and failed to advise her "to have a cardiovascular examination or echocardiogram." Petition ¶¶ 68, 73. Responding to these claims, Wyeth argues that Cantrell has not alleged sufficient facts to support a finding of fraudulent concealment. Notice of Removal 6-7.
Breach of a physician's duty, without more, does not constitute fraudulent concealment. See Earle v. Ratliff, 998 S.W.2d 882, 888 (Tex. 1999). In Earle, the Texas Supreme Court held that although evidence that a doctor failed to remove a gauze sponge from inside the patient's body after surgery may have constituted negligence, failure to inform the patient of the sponge did not, by itself, constitute fraudulent concealment. Id. "[P]roof of fraudulent concealment requires more than evidence that the physician failed to use ordinary care; it also requires evidence that the defendant actually knew the plaintiff was in fact wronged, and concealed that fact to deceive the plaintiff." Id. See also Shah, 67 S.W.3d at 841 ("The plaintiff must show the health-care provider actually knew a wrong occurred, had a fixed purpose to conceal the wrong, and did conceal the wrong from the patient.") (emphasis added).
Cantrell, in a creative attempt to save her claim[s] from the statute of limitations, has attempted to burnish those claim[s] with the patina of fraudulent concealment. However, absent a showing that Kwong had actual knowledge of — and concealed — an injury, Cantrell's naked claims of medical negligence are plainly insufficient to demonstrate fraudulent concealment. See Earle, 998 S.W.2d at 888. Nowhere has Cantrell set forth factual allegations showing that Kwong had a fixed purpose to conceal from Cantrell — or acted affirmatively to prevent Cantrell from discovering — that she was injured as a result of taking the diet drugs. In her amended petition and her memorandum in support of the motion to remand, Cantrell simply makes conclusory allegations that Kwong fraudulently concealed both the dangers of Podimin and Redux and the need for Cantrell to undergo an echocardiogram or cardiovascular examinations. She fails, however, to provide any factual basis to support these allegations. Accordingly, the court — after piercing the pleadings to determine the question of fraudulent joinder — concludes that Cantrell has failed to carry her burden of showing that Kwong actually knew Cantrell was injured by the diet drugs in question, or that Kwong willfully concealed that fact in order to deceive Cantrell.
As set forth above, the court finds that Cantrell's claims against Kwong are barred by the statute of limitations, TEX. REV. ClV. STAT. Art. 4590i, § 10.01, notwithstanding the equitable tolling doctrines relied on by Cantrell. Consequently, the court concludes that Kwong has been fraudulently joined, as there is no reasonable possibility that Cantrell will be able to establish a cause of action against her. In light of the conclusion that Kwong was fraudulently joined, this court has diversity jurisdiction pursuant to 28 U.S.C. § 1332 and the case was properly removed under 28 U.S.C. § 1441 (b).
III. CONCLUSION
For the foregoing reasons, the plaintiffs' motion to remand is DENIED, and Wyeth's motion to stay, pending transfer to the United States District Court for the Eastern District of Pennsylvania for coordinated or consolidated pretrial proceedings with In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Products Liability Litigation, MDL No. 1203 (E.D. Pa.), is GRANTED.
SO ORDERED.