Robinson v. Ortho-Mcneil Pharmaceutical, Inc., Civil No. 07-869-GPM.

533 F.Supp.2d 838

Latoya ROBINSON, et al., Plaintiffs, v. ORTHO-McNEIL PHARMACEUTICAL, INC., et al., Defendants.

Civil No. 07-869-GPM.

United States District Court, S.D. Illinois.

January 9, 2008.

John J. Driscoll, Seth S. Webb, Brown & Crouppen, St. Louis, MO, for Plaintiffs.

Richard P. Cassetta, Bryan Cave, St. Louis, MO, for Defendants.

MEMORANDUM AND ORDER

MURPHY, District Judge.

This matter is before the Court on a motion for remand to state court for lack of subject matter jurisdiction (Doc. 9). This action, which was filed originally in the Circuit Court of the Twentieth Judicial Circuit, St. Clair County, Illinois, on November 1, 2007, alleges that Plaintiffs Latoya Robinson, Angela Gourley, Keisha Lewis, Kim Musskopf, Felicia Reed, and Felicia Williams suffered personal injuries as a result of using Ortho Evra, a transdermal contraceptive device. They assert claims for strict liability, breach of implied and express warranties, violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1-505/12, fraud, and negligence against the makers of Ortho Evra, Defendants Ortho-McNeil Pharmaceutical, Inc., ("Ortho-McNeil") Johnson & Johnson, ("J & J") and Johnson & Johnson Pharmaceutical Research and Development, LLC ("J & J Pharmaceutical"). They also assert claims for strict liability, breach of implied warranties, negligence, and statutory consumer fraud against certain pharmacies from which they purchased Ortho Evra, specifically, Defendants American Drug Stores, Inc., ("Osco Drug") Walgreen Company ("Walgreens"), B & D Pharmacy, Inc., ("B & D") and Rite Aid Corporation. ("Rite Aid"). Plaintiffs Anthony Robinson, Keith Musskopf, and Ayinde Williams, who are married to, respectively, Latoya Robinson, Kim Musskopf, and Felicia Williams, assert derivative claims for loss of consortium.

On December 17, 2007, Ortho-McNeil, J & J, and. J & J Pharmaceutical removed the case from state court to this Court, asserting federal subject matter jurisdiction on the basis of diversity of citizenship, which requires, of course, that the parties to a case be of completely diverse state citizenship, that is, no plaintiff may be a citizen of the same state as any defendant, and that the amount in controversy exceed $75,000, exclusive of interest and costs. See 28 U.S.C. § 1332(a)(1); Cassens v. Cassens, 430 F.Supp.2d 830, 832-33 (S.D.Ill.2006). Although it appears from the record that the jurisdictional amount is satisfied in this case, see Yount v. Shashek, 472 F.Supp.2d 1055, 1066 (S.D.Ill.2006); Fields v. Jay Henges Enters., Inc., Civil No. 06-323-GPM, 2006 WL 187.5457, at *3-5 (S.D.Ill. June 30, 2006), diversity of citizenship is not complete. Latoya and Anthony Robinson are citizens of Wisconsin; Angela Gourley is a citizen of Kansas, and Felicia and Ayinde Williams are citizens of New York. Ortho-McNeil is a corporation incorporated under Delaware law with its principal place of business in New Jersey, and therefore is a citizen of Delaware and New Jersey for diversity purposes, while J & J, as a corporation incorporated under New Jersey law with its principal place of business in New Jersey, is a New Jersey citizen. See 28 U.S.C. § 1332(c)(1); Lyerla v. Amco Ins. Co., 461 F.Supp.2d 834, 836 (S.D.Ill.2006). J & J Pharmaceutical is a limited liability company the sole member of which is Ortho-McNeil and therefore is a citizen of Delaware and New Jersey. See McNichols v. Johnson & Johnson, 461 F.Supp.2d 736, 738 n. 1 (S.D.Ill.2006). Keisha Lewis, Kim and Keith Musskopf, and Felicia Reed are citizens of Illinois, as are Osco Drug, Walgreens, B & D, and Rite Aid.

The removing Defendants contend that diversity of citizenship is complete in this case because the non-diverse Defendants have been fraudulently joined to defeat diversity jurisdiction, that is, there is no' possibility that Plaintiffs can establish claims for relief against the non-diverse Defendants under applicable state law. See Phillips v. Howmedica Osteonics Corp., Civil No. Q7-833-GPM, 2007 WL 4441228, at *2 (S.D.Ill. Dec. 17, 2007); Mills v. Martin & Bayley, Inc., Civil No. 05-888-GPM, 2007 WL 2789431, at *2 (S.D.Ill. Sept. 21, 2007); Bavone v. Eli Lilly & Co., Civil No. 06-153-GPM, 2006 WL 1096280, at *2 (S.D.Ill. Apr. 25, 2006). Additionally, the removing Defendants request that the Court stay these proceedings so that a determination as to the existence of federal subject matter jurisdiction in this case can be made by the United States District Court for the Northern District of Ohio, where the Judicial Panel on Multidistrict Litigation has established a multidistrict litigation ("MDL") proceeding for the purpose of conducting coordinated or consolidated pretrial proceedings in cases involving injuries allegedly caused by Ortho Evra. With respect to the removing. Defendants' request for a stay, it, generally is not the Court's practice to allow cases in which the existence of subject matter jurisdiction is seriously at issue to remain pending long in federal court. The legal questions presented by the instant motion for remand are hardly novel ones for the Court, and they are quite as susceptible of resolution here as they are in the MDL court. See Weese v. Union Carbide Corp., Civil No. 07-581-GPM, 2007 WL 2908014, at *1 (S.D.Ill. Oct.3, 2007) (quoting Conroy v. Fresh Del Monte Produce, Inc., 325 F.Supp.2d 1049, 1054 (N.D.Cal.2000 (holding that it would be "judicially inefficient" to stay proceedings so that a motion for remand could be resolved by a transferee court, given that "[t]his Court is, as qualified to evaluate the factors establishing federal jurisdiction as any other federal court.").

Turning then to the merits of Plaintiffs' motion for remand, the primary argument for fraudulent joinder proffered by, the removing Defendants is that Plaintiffs' claims against the diversity-defeating Defendants are precluded under Illinois law by the so-called "learned intermediary" doctrine.¹ As adopted in Illinois in Kirk v. Michael Reese Hospital & Medical Center, 117 Ill.2d 507, 111 Ill.Dec. 944, 513 N.E.2d 387 (1987), the doctrine provides generally that, "where prescription drugs are concerned, the manufacturer's duty to warn is limited to an obligation to advise the prescribing physician of any potential dangers that may result from the drug's use. This special standard for prescription drugs is an ... exception to the ... general rule that one who markets goods must warn foreseeable ultimate users of dangers inherent in his products." Id. at 392 (quoting Stone v. Smith, Kline & French Labs., 731 F.2d 1575, 1579 (11th Cir.1984)). "Prescription drugs are likely to be complex medicines, esoteric in formula and varied in effect. As a medical expert, the prescribing physician can take into account the propensities of the drug as well as the susceptibilities of his patient. His is the task of weighing the benefits of any medication against its potential dangers. The choice he makes is an informed one, and individualized medical judgment bottomed on a knowledge of both patient and palliative." Id. "Pharmaceutical companies then, who must warn ultimate purchasers of dangers inherent in patent drugs sold over the counter, in selling prescription drugs are required to warn only the prescribing physician, who hats as a `learned intermediary' between manufacturer and consumer." Id. In sum, [t]he doctor, functioning as a learned intermediary between the prescription drug manufacturer and the patient, decides which available drug best fits the patient's needs and chooses which facts from the various warnings should be conveyed to the patient, and the extent of disclosure is a matter of medical judgment.... [T]here is no duty on the part of manufacturers of prescription drugs to directly warn patients." Id. at 393. As the Court has held previously [u]nder Illinois law, the learned intermediary doctrine is fundamentally a device for shifting liability for harm caused by a product, such as a prescription drug, onto doctors and away from others in the product's chain of distribution." Brooks v. Merck & Co., 443 F.Supp.2d 994, 999 (S.D.Ill.2006). Correspondingly, any assertion by the removing Defendants that Plaintiffs' claims against the non-diverse Defendants are barred by the learned intermediary doctrine "is merely a claim that [Plaintiffs'] case `[is] ill founded as to all ... [D]efendants.'" Id. at 1001 (quoting Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U. S. 146, 153, 34 S.Ct 278, 58 L.Ed. 544 (1914)) (emphasis omitted). See also Bova v. U.S. Bank, N.A., 446 F.Supp.2d 926, 932-41 (S.D.Ill.2006) (refusing to find fraudulent joinder on the basis of defenses equally dispositive of the liability of both a diverse defendant and a non-diverse defendant); Klohr v. Martin & Bayley, Inc., Civil No. 05-456-GPM, 2006 WL 1207141, at *3 (S.D.Ill. May 4, 2006) (noting that "the Court could not find fraudulent joinder on the basis of a defense equally applicable as between [a diverse defendant] and [a non-diverse defendant].").

Turning then to the removing Defendants' contention that the claims in this case have been fraudulently misjoined, they rely, of course, upon the curious jurisdictional doctrine announced by Tapscott v. MS Dealer Service Corp., 77 F.3d 1353 (11th Cir.1996), in which the court held that an "egregious" misjoinder of claims may be tantamount to fraudulent joinder. Rutherford v. Merck & Co., 428 F.Supp.2d 842, 850-51 (S.D.Ill.2006) (citing Tapscott, 77 F.3d at 1355, 1360). As the Court noted in Rutherford, the jurisprudence of the Supreme Court of the United States has never even hinted at the recognition of misjoinder of legally viable, non-fraudulent claims under state law as a species of fraudulent joinder; in fact, the longstanding principle in the federal courts has been that questions of joinder, particularly under state rules of civil procedure, do not implicate federal subject matter jurisdiction. S...