In Re Yasmin And Yaz (drospirenone) Marketing

IN RE YASMIN AND YAZ (DROSPIRENONE) MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION

No. 3:09-md-02100-DRH-PMF

MDL No. 2100

Case No. 3:10-cv-20332-DRH-PMF

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ILLINOIS

Date: November 24, 2010

ORDER

HERNDON, Chief Judge:

I. INTRODUCTION

This Document Relates to:

Evangeline Semark Lemoine, Plaintiff,

v.

TEVA PHARMACEUTICAL INDUSTRIES, LTD., TEVA PHARMACEUTICALS USA, INC.,

BAYER CORPORATION, BAYER HEALTHCARE PHARMACEUTICALS, INC.,

BAYER HEALTHCARE, LLC, BAYER SCHERING PHARMA AG, BAYER HEALTHCARE AG

and WALGREEN CO. Defendants

This matter is presently before the Court on Plaintiff's motion to remand to state court (Doc. 30). Plaintiff, an Illinois citizen, asserts claims for personal injuries suffered as an alleged result of the prescription pharmaceutical product Ocella, a generic version of Yasmin (Doc. 1 pp. 3032 ¶¶ 61-68; Doc. 5 ¶ 33). Plaintiff asserts claims against TEVA Pharmaceutical Industries, LTD., TEVA Pharmaceuticals USA, INC. (collectively, "TEVA Defendants"), Bayer Corporation, Bayer HealthCare Pharmaceuticals Inc., Bayer HealthCare, LLC, Bayer Schering Pharma AG, Bayer HealthCare AG (collectively, "Bayer Defendants"), and Walgreen Co ("Walgreen"). With the exception of Walgreen, none of the Defendants is a citizen of Illinois (Doc. 1 pp. 4-6 ¶¶ 15-23).

This case was originally filed in the Circuit Court of Cook County, Illinois. On January 19, 2010, Defendants Bayer Corporation, Bayer HealthCare Pharmaceuticals Inc. and Bayer HealthCare LLC (collectively, "Removing Defendants") removed this action to the Northern District of Illinois based on diversity of citizenship pursuant to 28 U.S.C. § 1332 (Doc. 1). The Removing Defendants and Walgreen allege that Walgreen, the sole non-diverse Defendant, was fraudulently joined and that its citizenship should be ignored (Doc. 1 pp. 5-6 ¶ 23; Doc. 33; Doc. 34). Plaintiff contends that Walgreen was not fraudulently joined and that the action should be remanded to state court (Doc. 30; Doc. 31; Doc. 37). Walgreen has also filed a motion to dismiss the claims directed against it (Doc. 34). On June 10, 2010, the action was transferred to this Multidistrict Litigation with Plaintiff's motion to remand and Walgreen's motion to dismiss pending. For the reasons stated herein the Court finds that Walgreen has been fraudulently joined and DENIES Plaintiff's motion to remand (Doc. 30).

II. DISCUSSION

A. Legal Standard

1. Removal

The removal statute, 28 U.S.C. § 1441, is construed narrowly, and doubts concerning removal are resolved in favor of remand. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993). Defendants bear the burden to present evidence of federal jurisdiction once the existence of that jurisdiction is fairly cast into doubt. See In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 607 (7th Cir.1997). "A defendant meets this burden by supporting [its] allegations of jurisdiction with 'competent proof, ' which in [the Seventh Circuit] requires the defendant to offer evidence which proves 'to a reasonable probability that jurisdiction exists.' " Chase v. Shop 'N Save Warehouse Foods, Inc., 110 F.3d 424, 427 (7th Cir.1997) (citations omitted). However, if the district court lacks subject matter jurisdiction, the action must be remanded to state court pursuant to 28 U.S.C. § 1447(c).

The statute regarding diversity jurisdiction, 28 U.S.C. § 1332, requires complete diversity between the parties plus an amount in controversy which exceeds $75,000, exclusive of interest and costs. Complete diversity means that "none of the parties on either side of the litigation may be a citizen of the state of which a party on the other side is a citizen." Howell v. Tribune Entertainment Co., 106 F.3d 215, 217 (7th Cir. 1997) (citations omitted).

2. Fraudulent Joinder

"A plaintiff typically may choose its own forum, but it may not join a nondiverse defendant simply to destroy diversity jurisdiction." Schur v. L.A. Weight Loss Centers, Inc. 577 F.3d 752, 763 (7th Cir. 2009). See also Gottlieb v. Westin Hotel Co., 990 F.2d 323, 327 (7th Cir.1993) (collecting cases). "The 'fraudulent joinder' doctrine, therefore, permits a district court considering removal "to disregard, for jurisdictional purposes, the citizenship of certain nondiverse defendants, assume jurisdiction over a case, dismiss the nondiverse defendants, and thereby retain jurisdiction." Schur, 577 F.3d at 763.

In the context of jurisdiction, "fraudulent" is a term of art. See Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir.1992). "Although false allegations of jurisdictional fact may make joinder fraudulent... in most cases fraudulent joinder involves a claim against an in-state defendant that simply has no chance of success whatever the plaintiffs motives." Id. (collecting cases). To prove fraudulent joinder, the out-of-state defendant must "show there exists no 'reasonable possibility that a state court would rule against the [in-state] defendant.'" Schwartz v. State Farm Mutual Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir.1999) (citing Poulos, 959 F.2d at 73)). The defendant bears a heavy burden in this regard. Id. See also Schur, 577 F.3d at 764 (in a fraudulent joinder analysis, the "district court must ask whether there is 'any reasonable possibility' that the plaintiff could prevail against the non-diverse defendant"). B. Discussion¹

1. Fraudulent Joinder

a. Claims

Walgreen is a pharmacy defendant that allegedly distributed Ocella to the Plaintiff pursuant to her physician's prescription. Plaintiff brings three counts against Walgreen: (1) strict liability; (2) negligence; and (3) breach of implied warranty (Doc. 1 pp. 48-51 ¶¶ 151-167).

b. Strict Liability² and Negligence³

The viability of the strict liability and negligence counts depend on whether Illinois imposes an affirmative duty on pharmacists to warn customers about a drug's risks and side effects. Accordingly, resolution of the fraudulent joinder issue, with respect to these counts, depends on whether Walgreen owed Plaintiff a duty to warn.

As a preliminary matter, this Court notes that the issue before it is a narrow one. Plaintiff is not alleging that Walgreen incorrectly filled her prescription or that Walgreen negligently performed a voluntary undertaking. Nor is Plaintiff alleging that Walgreen had patient-specific knowledge about her drug allergies and therefore knew the prescribed drug was contraindicated for her. In each of these scenarios, Plaintiff would have a valid claim against Walgreen under Illinois law. See Jones v. Walgreen Co., 265 Ill. App. 308 (Ill. App. 1932) (when doubt exists as to what drug has been prescribed, pharmacist has a duty to take reasonable precautions to ensure prescription is accurately filled); Frye v. Medicare-Glaser Corp., 605 N.E.2d 557 (where pharmacy voluntarily provides warning about prescription drug to customer, the extent of pharmacy's duty is to perform the voluntary undertaking without negligence); Happel v. Wal-Mart Stores, Inc., 766 N.E.2d 1118, 1129 (Ill. 2002) (pharmacy has "narrow duty to warn" when it has "patient-specific information about drug allergies, and knows that the drug being prescribed is contraindicated for the individual patient"). Rather, Plaintiff's failure to warn claims assert that Walgreen is liable, in both strict liability and negligence, for distributing a prescription drug that allegedly contained inadequate warnings. Accordingly, the limited question before the Court is whether, under Illinois law, a pharmacist, that correctly fills a prescription and does not have any patient-specific knowledge, has an affirmative duty to warn a customer about a prescription drug's potential side effects.

Illinois courts have consistently held that a pharmacist does not have an affirmative duty to provide customers with a warning regarding a drug's potential risks or side effects. See Happel, 766 N.E.2d at 1129 (absent an allegation of "specialized knowledge," pharmacies have no affirmative duty to warn patients of potential adverse reactions to prescription drugs); Leesley v. West, 518 N.E.2d 758 (Ill. App. Ct. 1988) (pharmacists have no duty to provide patients with a written copy of a prescription drug's known risks and side effects); Jones v. Irvin, 602 F. Supp. 399, 401 (S.D. Ill. 1985) ("the overwhelming majority of recent state cases stand for the proposition that the pharmacist has no duty to warn").

One of the stated reasons for declining to impose a duty to warn on pharmacists is that imposing such a duty would run contrary to the public policy against "expanding the liability risks of health professionals." Leesley, 518 N.E.2d at 763. Additional reasons cited by Illinois courts include: (1) Interference with the doctor-patient relationship see e.g., Fakhouri, 618 N.E.2d at 521; (2) the magnitude of the burden of imposing a duty to warn is too great see Leesley, 518 N.E.2d at 763;

(3) the injury that might result due to the absence of a particular warning is not reasonably foreseeable see Id.; and (4) imposing a duty to warn would be inconsistent with the learned intermediary doctrine.⁴ See Id. at 762763 (declining to impose a duty to warn on the defendant pharmacy, in part, because it would be "illogical and inequitable" to impose a duty on a pharmacist that is not imposed on the drug's manufacturer). Considering these opinions, it is clear that in Illinois, a pharmacist does not have an affirmative duty to warn customers about a prescription drug's dangerous propensities or side effects.

As an additional matter, the Court addresses the parties' arguments with respect to the learned intermediary doctrine. Plaintiff contends that Walgreen's duty to warn is a question of fact that must be resolved by a jury because (1) the adequacy of the warnings provided by the manufacturing defendants is in question; (2) the adequacy of the subject warnings is a question of fact for the jury; and (3)...