Opinion
MDL Docket No. 1203, Civil Action No. 03-20376.
June 18, 2004
MEMORANDUM AND PRETRIAL ORDER NO.
Before the court is the motion of Pam Hannah, a class member in the above-captioned matter, to remand to the Circuit Court of Claiborne County, Mississippi her claims against defendants: (1) Wyeth; (2) Indevus Pharmaceuticals, a manufacturer of dexfenfluramine; (3) three named sales representative defendants; (4) four pharmacies that purportedly filled the plaintiff's prescriptions for diet drugs; and (5) nine manufacturers of phentermine products. The state court action was captioned Pam Hannah v. American Home Products Corp., et al. (Miss. Cir. Ct. Claiborne County, filed Nov. 18, 2002).
Wyeth was previously known as American Home Products Corporation ("AHP").
We are only addressing the claims against those defendant pharmacies who appear on the MDL 1203 docket in this action. The plaintiff's original complaint filed in the Circuit Court of Claiborne County, Mississippi named an additional pharmacy defendant which is not before this court.
Plaintiff in this action exercised her right of intermediate opt-out under the Nationwide Class Action Settlement Agreement ("Settlement Agreement") in Brown v. American Home Products Corporation, CIV. A. No. 99-20593 (E.D. Pa. Aug. 28, 2000) (Pretrial Order ("PTO") No. 1415), which encompassed persons who ingested Wyeth's diet drugs Pondimin and Redux. See e.g., Settlement Agreement at § IV(A), (B), and (D)(4). Under the Settlement Agreement, those who have exercised an intermediate or back-end opt-out may sue Wyeth for compensatory damages in the tort system rather than obtain benefits from the AHP Settlement Trust.
The state court complaint, originally filed on May 17, 2000, named forty-nine plaintiffs. Wyeth was not served with the original complaint but was served with the first amended complaint filed on November 27, 2000. Shortly thereafter, the parties engaged in settlement discussions, which ultimately resolved the matter in principle as to all of the plaintiffs except Pam Hannah.
Hannah, opting not to accept the terms of the negotiated settlement entered into by her former attorney and Wyeth's counsel, was given forty-five days from March 19, 2001 to secure new representation. The sales representative defendants filed a motion to dismiss plaintiff's claims. They argued that plaintiff failed to substitute counsel within forty-five days of the court's order granting withdrawal of plaintiff's original counsel. By order of court, the claims were dismissed on October 22, 2001.
Almost a year later, on September 20, 2002, plaintiff moved through new counsel to reinstate her claims. Judge Lamar Pickard of the Circuit Court of Claiborne County, Mississippi, finding "exceptional circumstances," granted the motion on November 18, 2002. Wyeth removed the action to the United States District Court for the Southern District of Mississippi on December 6, 2002 on the ground that plaintiff had fraudulently joined the in-state pharmacies and in-state sales representative defendants in an attempt to defeat federal diversity jurisdiction. Thereafter, on January 2, 2003, plaintiff moved to remand this action under 28 U.S.C. § 1447(c). The Mississippi federal court deferred ruling on plaintiff's motion, and the case was then transferred to this court as part of MDL 1203, the mass tort litigation involving the diet drugs known as fen-phen. No federal claim for relief is alleged.
I.
In brief summary, plaintiff, a citizen of Mississippi, filed suit for injuries sustained as a result of her use of the diet drugs known as Pondimin, Redux, and/or phentermine. The defendant Wyeth, which manufactured Pondimin and Redux, as well as defendants Indevus Pharmaceuticals and the nine phentermine manufacturers are parties of diverse citizenship from the plaintiff. The defendant pharmacies which allegedly filled plaintiff's prescription for Pondimin, Redux and/or phentermine, and the defendant sales representatives who allegedly promoted Pondimin and Redux are purportedly citizens of Mississippi.
Plaintiff maintains that remand is appropriate because complete diversity does not exist as required under 28 U.S.C. § 1332(a). In her supplemental memorandum in support of her motion to remand, plaintiff alleges that remand is proper because all diverse defendants served with process have not filed a notice of removal or consented to Wyeth's notice of removal.Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir. 1985). Finally, plaintiff contends that remand is required because Wyeth failed to comply with the one year limitation requirement for removal of cases on the basis of diversity of citizenship as detailed in 28 U.S.C. § 1446(b).
Plaintiff, in her motion to remand, states that she "has sufficiently set forth allegations in her First Amended Complaint to demonstrate the possibility of recovery against the nondiverse defendants, namely the sales representatives and phentermine defendants." However, her amended complaint does not list any non-diverse phentermine defendants.
II.
This court addressed many of the same issues presented by plaintiff's remand motions in PTO No. 3281, in French, et al. v. Wyeth, et al., CIV. A. No. 03-20353 (E.D. Pa. Feb. 18, 2004), which is also part of the nationwide diet drug litigation. InFrench, we laid out in detail the standards for removal based on diversity jurisdiction and fraudulent joinder. See PTO No. 3281 at 2-4. Because we set forth the same legal standards inFrench, we need not revisit them here.
III.
We will first address plaintiff's claims against Wyeth's in-state sales representatives Forrest Bratley, Susan Bodne, and Jewell Norman. Plaintiff has brought claims in negligence and strict liability against these sales representatives. As noted above, Wyeth argues that these defendants are fraudulently joined. There is no indication in plaintiff's amended complaint that plaintiff, or any of her doctors, received any drugs from these sales representative defendants. Further, any allegations of misrepresentation or fraud fall short of the pleading requirement under both federal and Mississippi law. See Fed.R.Civ.P. 9(b); Miss. R. Civ. P. 9(b); Allen v. Mac Tools Inc., 671 So.2d 636, 642 (Miss. 1996); Brabham v. Brabham, 483 So. 2d 341, 342 (Miss. 1986).The Mississippi courts have clearly decided in the prescription drug context that the duty to warn does not extend to sales representatives. See e.g., Johnson v. Parke-Davis, 114 F. Supp. 2d 522, 524-25 (S.D. Miss. 2000). In addition, under Mississippi law, sales representatives are not "sellers," but rather employees of the businesses which are the sellers.McCurtis v. Dolgencorp, Inc., 968 F. Supp. 1158, 1160-61 (S.D. Miss. 1997). As such, the employees are not liable for failure to warn. See id. There is "no reasonable basis in fact or colorable ground supporting the claim against" the sales representative defendants. Boyer v. Snap-On Tools, Inc. 913 F.2d 108, 111 (3d Cir. 1990); see also Johnson, 114 F. Supp. 2d at 524-25; In re Rezulin Prods. Liab. Litig., 133 F. Supp. 2d 272, 288-90 (S.D.N.Y. 2001). Accordingly, they are fraudulently joined.
IV.
Plaintiff also brings claims against in-state pharmacy defendants. We previously addressed this identical issue in PTO No. 3339, in Jamison, et al. v. Wyeth, et al., CIV. A. No. 03-20317 (E.D. Pa. Mar. 5, 2004), which is also part of the nationwide diet drug litigation. In PTO No. 3339, we relied upon the decision of the Mississippi Supreme Court in Moore v. Mem'l Hosp. of Gulfport, 825 So.2d 658 (Miss. 2002), which held that the learned intermediary doctrine applies to "pharmacists and that pharmacists owe no legal duty to warn in the context of prescription medication." Id. at 664-65. Thus, because pharmacists have no duty to warn under Moore except in limited circumstances that do not apply here, plaintiff's claims against the in-state pharmacy defendants must fail.
The court carved out two exceptions to the rule that do not apply to this matter: "(1) [w]here it was undisputed that a plaintiff had informed the pharmacy of health problems which contraindicated the use of the drug in question," and (2) "where pharmacists fill prescriptions in quantities inconsistent with the recommended dosage guidelines." Id. at 664.
Relying on Jamison, as well as the thorough and wellreasoned analysis of the same issue in In re Rezulin Prods. Liab. Litig., 133 F. Supp. 2d 272, 288-290 (S.D.N.Y. 2001), we conclude that there is no "reasonable basis in fact" supporting the plaintiff's claims against the pharmacy defendants under Mississippi law. Thus, they too are fraudulently joined. Boyer, 913 F.2d at 111.
V.
We turn next to the issue of fraudulent joinder of the nine phentermine manufacturers. Plaintiff contends that Wyeth's removal was procedurally defective because these diverse defendants did not consent to removal. See e.g., Lewis, 757 F.2d at 68. We disagree. A removing defendant need not obtain consent for removal from fraudulently joined defendants. See Anderson v. Am. Home. Prods. Corp., 220 F. Supp. 2d 414, 424 (E.D. Pa. 2002).
This court has found, after evidentiary hearings in this class action, that there is no support for the position that phentermine contributes to injuries allegedly caused by fen-phen.See PTO Nos. 1351 and 2567. As a result, these defendants are fraudulently joined in this action, and their lack of consent is irrelevant in determining the propriety of removal. See Anderson, supra.
VI.
Plaintiff argues that diverse defendant Indevus Pharmaceuticals, Inc. (f/k/a Interneuron Pharmaceuticals, Inc.), a manufacturer of dexfenfluramine, failed to consent to removal. If a served defendant which is not fraudulently joined fails to consent to removal, the case must be remanded if the failure to do so is timely raised. See Lewis, 757 F.2d at 68. The record is clear, however, that Indevus consented to removal on December 6, 2002. See Wyeth's Opp'n to Pl.'s Remand Mot., Ex. F. Thus, this basis for remand is without merit.VII.
Finally, plaintiff contends that this action was not removable because Wyeth failed to comply with the one-year requirement for removal of diversity cases as set forth in 28 U.S.C. § 1446(b). That section reads:
(b) The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may be first ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than one year after commencement of the action.
This action was commenced on May 17, 2000, and not removed until December 6, 2002. Plaintiff argues that Wyeth missed the one-year deadline for removal as set forth in the second paragraph of § 1446(b). However, the one-year time limit, which is procedural and not jurisdictional, applies only when "the case stated by the initial pleading is not removable." 28 U.S.C. § 1446(b); see e.g., Ariel Land Owners, Inc. v. Dring, 351 F.3d 611, 616 (3d Cir. 2003); Brown v. Tokio Marine Fire Ins. Co., 284 F.3d 871, 873 (8th Cir. 2002); Johnson v. Heublein Inc., 227 F.3d 236, 241 (5th Cir. 2000); Orthotic Sales, Service, Inc. v. La Rosa, No. Civ.A. 96-4377, 1998 WL 461847 at *1 (E.D. Pa. Aug. 6, 1998). Here, the action was initially removable because the non-diverse defendants were fraudulently joined. Thus, the one-year bar under § 1446(b) does not govern.
We note that plaintiff, in her remand motion, has raised only the one-year bar and not the 30-day limitation period for removal set forth in the first paragraph of 28 U.S.C. § 1446(b). Thus, plaintiff has waived the latter basis for remand See 28 U.S.C. § 1447(c).
VIII.
Wyeth has met its heavy burden of showing that the instate pharmacies and sales representatives are fraudulently joined. Accordingly, we will deny plaintiff's motion to remand this action to the Circuit Court of Claiborne County, Mississippi and will dismiss the complaints as to the phentermine defendants, the in-state pharmacy defendants, and sales representative defendants.PRETRIAL ORDER NO.
AND NOW, this day of June, 2004, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:(1) the motion of plaintiffs in Pam Hannah v. American Home Products Corp., et al., CIV. A. No. 03-20376 (E.D. Pa.) to remand to the Circuit Court of Claiborne County, Mississippi is DENIED; and
(2) all claims in Hannah against defendants La Rue's Discount Drugs, Magic Mart Pharmacy, Inc., G M of Oxford, Inc., Superco, Inc., Forrest Bratley, Jr., Susan Bodne, Jewell E. Norman, Jones Medical Industries, MCR Pharmaceuticals, Inc., Qualitest Products, Inc. Eon Labs Manufacturing, Inc., Fisons Corporation, Gate Pharmaceuticals, Medeva Pharmaceuticals, Inc., Rugby Laboratories, Inc., and Smithkline Beecham Corporation are DISMISSED.