ORDER AND REASONS

CARL J. BARBIER, Judge.

Before the Court is plaintiff's Motion to Remand. Rec. Doc. 10. Defendants Pardue Pharma L.P., The Purdue Frederick Company, and Purdue Pharma, Inc. (collectively, "Purdue") oppose the motion; defendant Dr. Jacqueline Cleggett-Lucas has filed her own motion to dismiss and to remand (Rec. Doc. 15), which is not set for hearing until April 10. Plaintiff's motion, set for hearing on Wednesday, March 27, 2002, is before the Court on briefs without oral argument. For the following reasons, the Court finds that plaintiff's motion should be granted, and this matter should be remanded to state court.

BACKGROUND

On January 3, 2002, plaintiff Joseph Catalano filed his original petition in the Civil District Court for the Parish of Orleans, alleging what are essentially medical malpractice claims against Dr. Jacqueline Cleggett-Lucas as a result of having taken the drug OxyContin prescribed by her. Petition, ¶¶ 4-10. He also seeks respondeat superior damages from her employer, JCL Enterprises, LLC. Id., ¶ 11. Against the remaining drug company defendants, Purdue and Abbott Laboratories (alleged manufacturers and distributors of OxyContin) plaintiff alleges,inter alia, that their products are defective because they are "unreasonably dangerous" and are marketed without "proper, adequate warnings," which do not "accurately reflect the scope and severity of possible side effects." Id., ¶¶ 47-57. As a result, plaintiff alleges that the pharmaceutical defendants are liable under theories of strict liability, products liability, failure to adequately warn, negligence, redhibition, fraudulent misrepresentation, and breach of implied and express warranties. Id., ¶ 37.

Also on January 3, 2002, plaintiff sent a letter to the Louisiana Patients Compensation Fund and the Commissioner of Administration, informing them of Catalano's negligence claim and seeking information on whether Dr. Cleggett-Lucas and JCL Enterprises were members of the Fund. Rec. Doc. 10, Exhs. B C.

On February 6, 2002, Purdue removed the action to this Court, alleging that the non-diverse defendants had been fraudulently joined; plaintiff subsequently filed the instant motion to remand.

DISCUSSION

Defendants contend that Dr. Cleggett-Lucas and her employer are fraudulently joined for two reasons: "First, prescription bars the plaintiff's claims against these defendants. Second, plaintiff has not yet commenced any action against the non-diverse defendants as a matter of law, so the court should ignore their citizenship." Notice of Removal, Rec. Doc. 1, ¶ 4(c).

With respect to defendants' second point, that is, that Cleggett-Lucas and JCL are fraudulently joined because at the time of removal, commencement of an action against them by filing a lawsuit was not possible since the claims against them had not been administratively presented to a medical review panel (see La. R.S. 40:1299.47(B)), the Court adopts the reasoning contained in the applicable portion of Judge Engelhardt's opinion discussing this point in the recently decided case,Ohler v. Purdue Pharma, L.P., 2002 WL 88945, *4-*7 (E.D. La., Jan. 22, 2002).

In Ohler, the defendants made the same argument that they do here — that Cleggett-Lucas was improperly and fraudulently joined because at the time of removal, a state court action against her would have been premature, and thus that commencement of an action by filing a lawsuit was not possible. Relying on the Fifth Circuit's opinion inBadon v. R J R Nabisco, Inc., 224 F.3d 382 (5th Cir. 2000) and other precedents, Judge Engelhardt found that the issue of whether or not a claim was "commenced" in state court was not relevant to the determination of fraudulent joinder allegations against the plaintiff. In so holding, the Court noted the "long unbroken line of cases in the Eastern District of Louisiana addressing the issue . . . whether a non-diverse physician defendant is" fraudulently joined' when suit is filed in state court prematurely (before completion of medical review panel proceedings), and recognizing that a premature petition under Louisiana's Medical Malpractice Act does not preclude a finding that the petition states a cause of action against medical defendants. 2002 WL 88945 at *5, citing Erdey v. American Honda Co., Inc., 96 F.R.D. 593, 596 (M.D.La. 1983). Put another way, the test for fraudulent joinder asks whether a plaintiff has stated a potentially viable claim against an instate defendant, and courts have held that "[p]rematurity does not trump viability." Doe v. Cutter, 774 F. Supp. 1001, 1004 (E.D. La. 1991).

Applying the rationale of Ohler to the case at bar, the Court finds that the alleged prematurity of the plaintiff's medical malpractice claims against the non-diverse defendants does not dictate a finding that Cleggett-Lucas was fraudulently joined.

With respect to Purdue's argument that the claims against the non-diverse defendants should be dismissed based upon its affirmative defense of prescription, the Court finds that this is not sufficient to prevent remand. Under the law of Louisiana, the prescriptive period for medical malpractice claims runs from the date of the plaintiff's discovery of his injury or damages. By its nature, this is often a fact-intensive inquiry; that is especially true in this case, where part of the damages plaintiff claims include his alleged addiction to OxyContin, which is unlikely to have a clear-cut onset date.

And, while it is well-settled that the Court may employ a summary judgment type procedure to pierce the pleadings when considering questions of fraudulent joinder, the summary judgment procedure is insufficient to resolve the issue of prescription when the question cannot be resolved on the face of the pleadings or other undisputed facts, but instead requires a fact-based inquiry. "At a hearing on the exception of prescription, the parties are allowed to call witnesses to testify and the factfinder is allowed to weigh credibility. On summary judgment, this is prohibited." Labbe Service Garage. Inc. v. LBM Distributors, Inc., 650 So.2d 824, 829 (La.App. 3d Cir. 1995), citingSmith v. Our Lady of the Lake Hospital, 639 So.2d 730, 751 (La. 1994) ("Summary judgment is seldom appropriate for determinations based on subjective facts, such as motive, intent, good faith, knowledge and malice.").

Because the issue of prescription will in this case involve factual questions not amenable to resolution by summary judgment, the question must be reserved for the fact-finder. Thus, defendants' affirmative defense of prescription does not preclude the remand of this case.

The Fifth Circuit has held unequivocally that "[i)f the plaintiff has any possibility of recovery under state law against the party whose joinder is questioned, then the joinder is not fraudulent in fact or law." Burden v. Dynamics Corp., 60 F.3d 213, 216 (5th Cir. 1995) (emphasis added). Further, it is not the role of the district court presented with a fraudulent joinder claim to "determine whether the plaintiff will actually or even probably prevail on the merits of the claim;" rather, the Court "look[s] only for a possibility that the plaintiff might do so." Id. In this case, the Court's review of the record, the memoranda of counsel, and applicable law, do not convince it that' there exists no possibility of recovery against Dr. Cleggett-Lucas under state law, and thus the Court finds that she was not fraudulently joined. Accordingly, pursuant to 28 U.S.C. § 1447 (c),

IT IS ORDERED that plaintiff's Motion to Remand should be GRANTED and this matter is hereby REMANDED to the Civil District Court for the Parish of Orleans.