Smith v. Merck & Co., Inc., CIV. 06-882-GPM.

472 F.Supp.2d 1096

Joyce M. SMITH, Plaintiff, v. MERCK & CO., INC., d/b/a MSD Sharp & Dohme GmbH d/b/a Merck, Sharp & Dohme and Walgreen Co., d/b/a Walgreens, Defendants.

No. CIV. 06-882-GPM.

United States District Court, S.D. Illinois.

January 12, 2007.

Aaron K. Dickey, Robert D. Rowland, Goldenberg, Heller, et al., Edwardsville, IL, for Plaintiff.

Dan H. Ball, Randy J. Soriano, Robert T. Ebert, Stephen G. Strauss, Bryan Cave, St. Louis, MO, for Defendants.

MEMORANDUM AND ORDER

MURPHY, Chief Judge.

This matter is before the Court on the motion for remand brought by Plaintiff Joyce M. Smith (Doc. 9). For the following reasons, the motion is GRANTED.

Smith originally filed this action in the Circuit Court of the Third Judicial Circuit, Madison County, Illinois, alleging personal injuries as the proximate result of ingesting Vioxx, a prescription pain medication. She asserts claims for strict products liability, negligence, breach of express and implied warranty, common-law fraud, negligent misrepresentation, and consumer fraud against Defendant Merck & Co., Inc. ("Merck"), the manufacturer of Vioxx. Also, Smith asserts claims for strict products liability, negligence, and breach of express and implied warranty against Defendant Walgreen Co. ("Walgreens") in connection with prescriptions for Vioxx that Walgreens filled for her. Merck effected timely removal of the case from state court to this Court, alleging the existence of federal subject matter jurisdiction in diversity. Smith in turn has requested remand of this case to Illinois state court for lack of subject matter jurisdiction. Smith's motion for remand has been fully briefed and is ripe for decision.¹

Under 28 U.S.C. § 1441, a defendant may remove from state court to federal court any action that could have been filed originally in federal court. See Kitson v. Bank of Edwardsville, Civil No. 06-528-GPM, 2006 WL 3392752, at * 1 (S.D.Ill. Nov. 22, 2006). A federal court may exercise subject matter jurisdiction in diversity over an action in which all of the parties are of diverse state citizenship and an amount in excess of $75,000, exclusive of interest and costs, is in controversy. See 28 U.S.C. § 1332; In re General Motors Corp. Dex-Cool, No. Civ. MDL-03-1562-GPM, Civ. 05-10008-GPM, 2006 WL 2818773, at *6 (S.D.Ill. Sept. 27, 2006). The familiar rule of complete diversity requires that, in most instances, for a federal court to exercise jurisdiction in diversity no plaintiff may be a citizen of the same state as any defendant. See Carden v. Arkoma Assocs., 494 U.S. 185, 187, 110 S.Ct. 1015, 108 L.Ed.2d 157 (1990) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806)); F. & H.R. Farman-Farmaian Consulting Eng'rs Firm v. Harza Eng'g Co., 882 F.2d 281, 284 (7th Cir.1989); Lyerla v. Amco Ins. Co., No. CIV. 06-679-GPM, 2006 WL 3360505, at *1 (S.D.Ill. Sept. 27, 2006); Cassens v. Cassens, 430 F.Supp.2d 830, 832-33 (S.D.Ill.2006).

In this case, diversity of citizenship is not complete because, though Smith is an Illinois citizen and Merck is a New Jersey citizen, Walgreens is, like Smith, an Illinois citizen. See 28 U.S.C. § 1332(c)(1) (setting out the prerequisites of corporate citizenship for diversity purposes); Kitson, 2006 WL 3392752, at *6 (discussing the prerequisites of citizenship of natural persons for diversity purposes); Cassens, 430 F.Supp.2d at 833 (same). Merck asserts that Walgreens has been fraudulently joined to defeat diversity jurisdiction because Smith has no possibility of establishing a cause of action against Walgreens in Illinois state court. See Schwartz v. State Farm Mut. Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir.1999); Gottlieb v. Westin Hotel Co., 990 F.2d 323, 327 (7th Cir.1993); Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir.1992); Bavone v. Eli Lilly & Co., Civil No. 06-153-GPM, 2006 WL 1096280, at *2 (S.D.Ill. Apr. 25, 2006). Specifically, Merck contends that Smith's claims against Walgreens for strict products liability and negligence are barred under Illinois law by the "learned intermediary" doctrine, and that Smith's claim against Walgreens for breach of warranty is not viable because a sale of prescription medication is not a sale of "goods" within the meaning of Article 2 of the Illinois Uniform Commercial Code ("Illinois UCC"). The Court will address each of these contentions in turn.

The "learned intermediary" doctrine provides generally, of course, that when a manufacturer of a prescription drug has given adequate notice of the drug's known harmful propensities to a plaintiff's prescribing physician, the manufacturer and others in the drug's chain of distribution, such as pharmacists, are relieved of liability for harm caused by the drug. See Riddle v. Merck & Co., Civil No. 06-172-GPM, 2006 WL 1064070, at *3 (S.D.Ill. Apr. 21, 2006) (applying Illinois law); Hansen v. Baxter Healthcare Corp., 198 Ill.2d 420, 261 Ill.Dec. 744, 764 N.E.2d 35, 42-43 (2002); Kirk v. Michael Reese Hosp. & Med. Ctr., 117 Ill.2d 507, 111 Ill.Dec. 944, 513 N.E.2d 387, 392-93 (1987); Proctor v. Davis, 291 Ill.App.3d 265, 225 Ill.Dec. 126, 682 N.E.2d 1203, 1211 (1997); Leesley v. West, 165 Ill.App.3d 135, 116 Ill.Dec. 136, 518 N.E.2d 758, 761-62 (1988); Mahr v. G.D. Searle & Co., 72 Ill.App.3d 540, 28 Ill.Dec. 624, 390 N.E.2d 1214, 1229-30 (1979). The Court specifically has held in numerous other actions involving alleged personal injuries caused by Vioxx that the learned intermediary doctrine is a case-dispositive defense common to diverse and non-diverse defendants that cannot be asserted as a basis for fraudulent joinder. See, e.g., Nicol v. Merck & Co., No. 06-926-GPM, 2006 WL 3804887, at *2 (S.D.Ill. Dec. 22, 2006); Mannings v. Merck & Co., No. 06-634 GPM, 2006 WL 3366457, at *1 (S.D.Ill. Oct. 12, 2006); Hardaway v. Merck & Co., Civil No. 06-465-GPM, 2006 WL 2349965, at *2 (S.D.Ill. Aug. 11, 2006); Brooks v. Merck & Co., 443 F.Supp.2d 994, 998-1006 (S.D.Ill.2006). As the Court explained in Brooks,

Under 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.

* * * * * *

Once a manufacturer has given adequate warning of the known dangerous propensities of a prescription drug, a physician's decision to prescribe the drug becomes an issue of the physician's reasonable exercise of professional judgment.

443 F.Supp.2d at 999.

Accordingly, in this case, as in Brooks, "[i]f the Court holds that Merck gave adequate warning to physicians, thus absolving Walgreens of liability, Merck is absolved of liability as well. Thus, the learned intermediary doctrine clearly is an issue that goes not to the Court's jurisdiction but to the merits of Plaintiff's claims for relief." 443 F.Supp.2d at 1003. See also Bova v. U.S. Bank, N.A., 446 F.Supp.2d 926, 932-41 (S.D.Ill.2006) (rejecting allegations of fraudulent joinder premised on grounds equally dispositive of the liability of diverse and non-diverse defendants alike); Hauck v. ConocoPhillips Co., Civil No. 06-135-GPM, 2006 WL 1596826, at *5-9 (S.D.Ill. June 6, 2006) (same); Simmons v. Norfolk S. Ry. Co., 324 F.Supp.2d 914, 916-17 (S.D.Ill.2004) (same). Cf. Klohr v. Martin & Bayley, Inc., Civil No. 05-456-GPM, 2006 WL 1207141, at *3 (S.D.Ill. May 4, 2006) (in a case removed under 28 U.S.C. § 1452, noting that joinder of a diverse defendant would not permit the exercise of diversity jurisdiction on the grounds that the nondiverse defendant named in the case was fraudulently joined because the plaintiffs' misrepresentation claims were not cognizable under the Illinois consumer fraud statute: "[T]he Court could not find fraudulent joinder on the basis of a defense equally applicable as between [the diverse defendant] and [the non-diverse defendant]."); McNichols v. Johnson & Johnson, No. CIV. 06-160-GPM, 2006 WL 3360542, at *2 (S.D.Ill. Apr. 19, 2006) (expressing, "skeptic[ism]" about the propriety of a claim of fraudulent joinder based on the learned intermediary doctrine because the, defense "implicate[d] issues about foreseeability and causation germane to the liability of both the [diverse defendants] and [the non-diverse defendant]" in the case).

"To show fraudulent joinder, defendants must show a flaw specific to the joinder of the non-diverse party, which is the jurisdictionally relevant aspect of the claim." Nicol, 2006 WL 3804887, at *2. In this instance Merck asserts no flaw specific to the joinder of Walgreens and instead merely raises a defense equally dispositive of Smith's claims for relief against both Merck and Walgreens. However, "where there are colorable claims or defenses asserted against or by diverse and non-diverse defendants alike, the court may not find that the non-diverse parties were fraudulently joined based on its view of the merits of those claims or defenses. Instead, that is a merits determination which must be made by the state court." Brooks, 443 F.Supp.2d at 1002 (quoting Boyer v. Snap-on Tools Corp., 913 F.2d 108, 113 (3d Cir.1990)). Merck's allegations of fraudulent joinder are merely an assertion that Smith's case "[is] ill founded as to all the defendants," and therefore those allegations must be rejected. Id. (quoting Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U.S. 146, 153, 34 S.Ct. 278, 58 L.Ed. 544 (1914)). See also McNichols, 461 F.Supp.2d 736, at 739, 2006 WL 3360542, at *2 (citing Smallwood v. Illinois Cent. R.R. Co., 385 F.3d 568, 574 (5th Cir.2004)) (noting that, if a finding of fraudulent joinder as to a non-diverse defendant will have law-of-the-case effect as to the liability of diverse defendants, "the `jurisdictional' issue is in fact a challenge to the merits of a plaintiff's claim for relief that must be resolved in state court."); Davila v. American Home Prods. Corp., No. Civ. EP-03-CA-279(KC), 2004 WL 557176, at *4 (W.D.Tex. Feb. 3,...