Simrell v. Teva Pharms. United States, Inc.

DANA DIXON SIMRELL, as Administratrix of the Estate of Frank Dixon, Plaintiff, v. TEVA PHARMACEUTICALS USA, INC., et al., Defendants.

Case No. 2:18-cv-00477-KOB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

August 2, 2018

MEMORANDUM OPINION

This matter is before the court on Plaintiff's Motion to Remand this case to the Circuit Court of Jefferson County, Alabama. (Doc. 11). On March 27, 2018, Defendants Eon Labs, Inc. and Teva Pharmaceuticals USA, Inc., removed this case based on diversity jurisdiction pursuant to 28 U.S.C. § 1332. (Doc. 1). The removing Defendants concede the parties are not completely diverse, but argue that Plaintiff fraudulently joined and/or misjoined the non-diverse Defendants and the court should dismiss them from the action.

As explained below, this court concludes that the removing Defendants failed to meet their burden of showing by clear and convincing evidence that no Alabama State court could find that Plaintiff's Complaint states a valid cause of action against the resident Defendants. Therefore, the removing Defendants failed to establish fraudulent joinder, and Plaintiff's motion to remand is due to be GRANTED.

II. FACTUAL BACKGROUND

On February 16, 2018, Plaintiff filed this action against Defendants Eon Labs, Inc.; Teva Pharmaceuticals USA, Inc.; CVS Health Corporation; Wyeth Pharmaceuticals, Inc.; Dr. William Maclean; and Dr. Adeeb Thomas in the Circuit Court of Jefferson County, Alabama. (Doc. 1-1).¹ Plaintiff sued the Defendants for their respective roles in allegedly causing Mr. Dixon's death. (Doc. 1-1). The parties agree that the Defendant physicians are the only named Defendants who are Alabama citizens.

According to the Complaint, Mr. Dixon died on February 18, 2016, of "amiodarone toxicity and amiodarone induced interstitial lung disease." (Doc. 1-1 at 2). The Complaint alleges the Defendant physicians prescribed Mr. Dixon's amiodarone, but never informed him of the risks associated with the drug or that he was taking the drug for an off-label use. (Id. at 5, 13). Plaintiff also claims the doctors "overprescribed" the drug and continued prescribing it even after Mr. Dixon began suffering severe side effects. (Id. at 8).

Aside from the facts described above, the Complaint contains no further allegations or details regarding the Defendant physicians' treatment of Mr. Dixon or the basis for their potential liability.

II. LEGAL STANDARD

A defendant may remove a case from state court if the plaintiff could have originally filed the action in federal court. See 28 U.S.C. § 1441(a). Generally, federal courts have jurisdiction over civil cases where the amount in controversy exceeds $75,000 and complete diversity between the parties exists. See 28 U.S.C § 1332; Triggs v. John Crump Toyota, 154 F.3d 1284, 1287 (11th Cir. 1998) ("every plaintiff must be diverse from every defendant").

Even if complete diversity is not present, an action may still be removable if the plaintiff fraudulently joined the non-diverse parties to avoid federal jurisdiction. See Triggs, 154 F.3d at 1287. Joinder is fraudulent in two circumstances: 1) where no possibility exists that the plaintiff can prove a cause of action against the resident defendant; or 2) where the complaint contains outright fraud in the pleading of jurisdictional facts. See id. The Eleventh Circuit has also recognized a related theory—fraudulent misjoinder. Fraudulent misjoinder occurs when a plaintiff joins claims against a non-diverse defendant to the claims against a diverse defendant even though the claims share "no real connection." See id. at 1289.

The court determines whether a party has been fraudulently joined "based upon the plaintiff's pleadings at the time of removal, supplemented by any affidavits and deposition transcripts submitted by the parties." Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1380 (11th Cir. 1998). To avoid remand, the removing party must demonstrate by clear and convincing evidence that a plaintiff fraudulently joined a resident defendant. See Florence v. Crescent Res., LLC, 484 F.3d 1293, 1297 n.2 (11th Cir. 2007). To do so, the removing party must show that the plaintiff could not possibly state a claim against the resident defendant in state court. Triggs, 154 F.3d at 1287. See also Tillman v. R.J. Reynolds Tobacco, 340 F.3d 1277, 1279 (11th Cir. 2003) ("[If] there is a possibility that a state court would find that the complaint states a cause of action against any of the resident defendants, the federal court must find that the joinder was proper and remand the case to state court.").

III. DISCUSSION

Fraudulent Joinder

Plaintiff 's Complaint asserts two counts against the Defendant physicians—the only two non-diverse Defendants in this case. The first count against them (Count Three of the Complaint) claims that the doctors acted negligently and/or wantonly to cause or allow Mr. Dixon's injuries. The second count against the doctors (Count Four) alleges they violated the Alabama Medical Liability Act by breaching their legal duty of reasonable care, skill, and diligence in treating Mr. Dixon.

To support these claims, Plaintiff alleges the Defendant physicians negligently cared for and treated Mr. Dixon; negligently prescribed him amiodarone; negligently prescribed him amiodarone for off-label uses not approved by the FDA and in violation of state law; negligently continued prescribing amiodarone to him after he began suffering adverse side effects; and negligently prescribed amiodarone to him for long-term use. (Doc. 1-1 at 25-26). While the Complaint does not provide specific dates on which the doctors treated Mr. Dixon or prescribed the amiodarone, it alleges the Defendant physicians committed the negligent acts in the months leading up to Mr. Dixon's death on February 18, 2016.

Defendant Eon Labs and Teva Pharmaceuticals argue that all of Plaintiff's claims against the Defendant physicians arise under the Alabama Medical Liability Act, Ala. Code § 6-5-540 et seq., and fail to state a claim under the Act's heightened pleading requirements. Section 6-5-551 of the Act provides

In any action for injury, damages, or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care the plaintiff shall include in the complaint filed in the action a detailed specification and factual description of each act and omission alleged by plaintiff to render the health care provided liable to plaintiff . . . . Any complaint which fails to include such detailed specification and factual description of each act and omission shall be subject to dismissal for failure to state a claim upon which relief can be granted.

Plaintiff's wrongful death claims against the Defendant physicians arise under the AMLA, and its heightened pleading standard applies to the Complaint. So, the court must consider the heightened pleading requirement in its fraudulent joinder analysis. The court must apply the "pleading standards applicable in state court, not the plausibility pleading standards prevailing in federal court" to determine "whether it is possible that a state court would find that the complaint states a cause of action." Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1334 (11th Cir. 2011).

The Supreme Court of Alabama has explained that § 6-5-551 requires plaintiffs to "give the defendant health care provider fair notice of the allegedly negligent act and must identify the time and place it occurred and the resulting harm." Mikkelsen v. Salama, 619 So. 2d 1382, 1384 (Ala. 1993). But, "[i]f the complaint affords the defendant health care provider fair notice of these essential elements, the court should strive to find that the complaint" satisfies the Act's heightened pleading requirements. Id.

In Mikkelsen, the court acknowledged that no prior cases specifically dealt with § 6-5-551's pleading requirements, and took advantage of the opportunity to clarify the law. Id. In conducting its analysis, the court reviewed the facts in the complaint. The court noted the plaintiff's allegation that the defendant physician negligently failed to warn the patient or her family that she should not drive while suffering from a particular mental disorder or while taking the medication that he had prescribed her. The court also considered the plaintiff's allegation that the physician's negligence caused the car accident that gave rise to the lawsuit. The court determined these allegations satisfied the AMLA's pleading requirements and provided the defendant physician fair notice of the alleged negligent conduct and resulting harm.

The court in Mikkelson also found the complaint satisfied the AMLA's "when" and "where" requirements despite the plaintiff's apparent failure to provide any specific date or place of the physician's alleged negligence. While the court noted specific examples of the plaintiff's allegations of the physician's negligent act and the resulting harm, the court simply stated, without providing any specific examples, that the complaint "sufficiently alleged the date and place of" the physician's negligent act. Id. Apparently, the court was satisfied that the complaint asserted that the physician's negligence occurred "prior to" the plaintiff's automobile accident. Id.

Plaintiff's Complaint in this case is no less informative than the complaint in Mikkelson. The Complaint alleges that the Defendant physicians negligently treated Mr. Dixon by prescribing amiodarone for off-label use, prescribing the drug without informing him of the risks involved, and continuing to prescribe it to him despite its adverse effects. The Complaint further alleges the doctors' negligence caused Mr. Dixon's death on February 18, 2016. And while the Complaint does not provide specifically when or where the negligence occurred, it clearly explains that it occurred during the physicians' treatment of Mr. Dixon in the months leading up to his death in ...