Smith v. Smithkline Beecham Corp.

WHITNEY SMITH, et al., Plaintiffs,

v.SMITHKLINE BEECHAM CORP., et al., Defendants.

Civil No. 11-56-ART

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION PIKEVILLE

Dated: July 13, 2011

MEMORANDUM OPINION & ORDER

Diligent investigation of facts and thorough legal briefing are common—indeed, expected—in federal court. Less common is when a party's own diligence fatally undermines its chances of success. But that is exactly what has happened to defendant SmithKine Beecham's efforts to establish federal jurisdiction over this case. SmithKline has gathered a significant amount of evidence establishing that the non-diverse defendant, Dr. Tom McGuire, did not prescribe Paxil for plaintiff Whitney Smith during the first trimester of her pregnancy. According to SmithKline, this evidence, in conjunction with scientific evidence demonstrating that ingestion of Paxil after the first trimester could not have caused her son's birth defects, establishes that Smith has no claim against Dr. McGuire. SmithKline therefore asks the Court to ignore Dr. McGuire's his non-diverse citizenship and exercise jurisdiction over the case under the doctrine of fraudulent joinder. But this argument, if accepted, would also defeat Smith's claims against SmithKline—it would conclusively establish that Paxil did not cause her son's injuries. Therefore, under the "common defense rule," it is an attack on the merits of Smith's case as a whole, not on the propriety of Dr.McGuire's joinder. Because SmithKline has not shown that Dr. McGuire was fraudulently joined, this Court lacks jurisdiction over this case, and Smith's motion to remand is granted.

BACKGROUND

Whitney Smith gave birth to two twin boys on May 4, 2009. They were five weeks premature. One of the twins had serious health problems, including congenital heart defects and respiratory difficulties. He underwent two open heart surgeries during the first three months of his life to correct these defects.

Smith believes that her use of Paxil (or its generic form, paroxetine) during her pregnancy caused her son's health problems. On May 4, 2010, she filed suit in Kentucky state court against SmithKline Beecham, the maker of Paxil, and Dr. Tom O. McGuire, her gynecologist. Smith v. SmithKline Beecham Corp., No. 10-73, R. 1-1 at 3 ("Complaint"). Smith alleged that Dr. McGuire prescribed her Paxil during her first trimester to help with sleeping problems. Complaint ¶ 19. One month later, SmithKline removed the suit to this Court. Because Dr. McGuire, like Smith, is a citizen of Kentucky, the case lacked complete diversity. Therefore, SmithKline could only establish federal jurisdiction by demonstrating that Smith had fraudulently joined Dr. McGuire for the purpose of defeating diversity. See Coyne v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999). SmithKline argued that Smith did not have a colorable claim against Dr. McGuire because there was no evidence showing that he prescribed her Paxil during her first trimester. Smith filed a motion to remand, which the Court granted on August 30, 2010. The Court held that Dr. McGuire had not been fraudulently joined because there was a factual dispute as to whether he had givenSmith a first-trimester Paxil prescription and all factual disputes must be resolved in favor of remand. Smith, No. 10-73, R. 39 at 9-10.

The case went back to state court. On December 22, 2010, Smith filed an amended complaint. The crux of her allegations against both SmithKline and Dr. McGuire remained the same, although she removed the reference to the first trimester in her allegations against Dr. McGuire. The amended complaint simply alleges that Dr. McGuire prescribed Smith Paxil at some point "[d]uring her pregnancy." Amended Complaint, R. 1-2 at 68, \ 20. In the meantime, SmithKline did its homework, collecting evidence to show that Smith did not receive a first-trimester Paxil prescription from Dr. McGuire. Smith conceived her twins on or around September 18, 2008, which means that her first trimester (lasting approximately twelve weeks) ended around December 11, 2008. But, according to SmithKline, all of the available evidence shows that Smith did not receive a prescription for Paxil (or paroxetine) from Dr. McGuire prior to February 5, 2009—well beyond the end of her first trimester. This evidence is compelling and includes the following:

• In an interrogatory, SmithKline asked Smith to list all of the pharmacies from which she obtained Paxil or paroxetine. R. 1-26 at 9. Smith identified three pharmacies—Walmart, Economy, and Citizens. Id. SmithKline then issued subpoenas to fifteen of these pharmacies' locations in the area where Smith worked and lived. Only two pharmacies—Economy and Citizens—had records for Smith, and neither had a prescription in Smith's name for Paxil or paroxetine from earlier than February 5, 2009. R. 1-19. Employees from each pharmacy confirmed that neither had any record of a first-trimester Paxil prescription for Smith. R. 1-32 at 32; R. 1-33 at 17.

• In his deposition, Dr. McGuire testified that he only wrote one Paxil prescription for Smith, and that he wrote it on February 5, 2009. R. 1-16 at 25-26.

• In response to SmithKline's discovery request that Smith produce all Paxil prescription bottles in her possession, Smith only produced one, which had an original prescription date of February 5, 2009. R. 1-28

• During her deposition, Smith testified that she only had one conversation about Paxil with Dr. McGuire, and that Dr. McGuire handed her the Paxil prescription immediately after that conversation. R. 1-14 at 265-70. The only Paxil prescription signed by Dr. McGuire that was produced in the course of discovery was the February 5, 2009, prescription, which provided for five refills. R. 1-21.

• Smith visited Buchanan General Hospital on November 8, 2008—in the middle of her first trimester. The admissions paperwork asked Smith to list all medications she was currently taking, and Smith only listed prenatal vitamins. She did not list Paxil or paroxetine. R. 1-23.

In fact, the only evidence in the record showing that Smith received a first-trimester Paxil prescription from Dr. McGuire is her own deposition testimony. Smith specifically testified that Dr. McGuire prescribed her Paxil in "late October, early November" of 2008. R. 1-14 at 131. She admitted during her testimony that she could not produce any records of the October/November 2008 prescription or specifically identify the pharmacy at which she had the prescription filled. Id. at 132-33.

Armed with this evidence, and evidence that the kinds of defects from which Smith's son suffers could only have been caused by ingestion of Paxil during the first trimester, SmithKline removed the case to this Court for a second time on April 14, 2011. Smith filed a motion to remand, R. 10, to which SmithKline responded, R. 14, and Smith replied, R. 16. The Court held oral argument on Smith's motion to remand on June 28, 2011. Both parties filed supplemental briefs after oral argument. R. 23, 24, 25.

DISCUSSION

This is SmithKline's argument in a nutshell: Aside from Smith's own uncorroborated deposition testimony, all of the evidence shows that Dr. McGuire did not prescribe her Paxil during her first trimester. And, because it is supposedly a scientific impossibility that Paxil use after the first trimester could have caused the congenital heart defects from which Smith's son suffers (a baby's heart is already fully formed by the end of the first trimester), Smith cannot show that Dr. McGuire's prescription caused her son's injuries. Therefore, Smith does not have a colorable cause of action against Dr. McGuire. He has thus been fraudulently joined, and the Court should disregard his non-diverse citizenship and exercise jurisdiction over the case.

Resolving the merits of this argument would be a complicated affair. Although the Sixth Circuit recognizes the doctrine of fraudulent joinder generally, see Coyne, 183 F.3d at 493; Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 949 (6th Cir. 1994), it has provided very little guidance on how courts should resolve fact-intensive arguments like those that SmithKline advances. SmithKline's argument is not, after all, that Smith has failed to plead a cause of action against Dr. McGuire—Smith plainly alleges in her complaint that her son's "cardiac defects . . . were caused by Paxil, which [she] ingested during her pregnancy pursuant to a prescription given by Dr. McGuire." Amended Complaint ¶ 39. Rather, SmithKline invites the Court to "pierce the pleadings"—a practice the Sixth Circuit has neither explicitly blessed nor forbidden, but which other circuits allow, see, e.g., Cavallini v. State Farm Mut. Auto. Ins. Co., 44 F.3d 256, 263 (5th Cir. 1995)—and consider affidavits,depositions, and other evidence to determine whether Smith's claims against Dr. McGuire are supported by the facts.

Deciding whether to pierce the pleadings would be just the tip of the iceberg. If the Court did so, it would then have to determine the proper standard to apply. How overwhelmingly must the evidence demonstrate the infirmity of Smith's claims against Dr. McGuire? Again, the Sixth Circuit has provided little guidance, stating the standard with the question-begging formulation: "the removing party must present sufficient evidence that a plaintiff could not have established a cause of action against non-diverse defendants under state law." Coyne, 183 F.3d at 493 (emphasis added). Courts within this circuit have said that the standard for establishing fraudulent joinder is even higher than the standard for prevailing on a motion to dismiss under Rule 12(b)(6). See Cordle v. Merck & Co., 405 F. Supp. 2d 800, 803 (E.D. Ky. 2005). But it is unclear how the Rule 12(b)(6) inquiry, which a court performs based solely on the complaint, would apply to a fraudulent joinder analysis involving depositions, affidavits, and other pieces of evidence. To make matters...