Opinion
Civil Action No: 02-333, Section: "J" (3)
April 2, 2002
MINUTE ENTRY
Before the Court is a Motion to Remand and Request for Costs and Expenses Pursuant to 28 U.S.C. § 1447 (Rec. Doc. 16) filed by plaintiff Jacqueline Coleman. The Court granted Plaintiff's request to hear the motion on an expedited basis. The motion is before the Court on briefs without oral argument and is opposed by Bayer Corporation ("Bayer") and American Home Products Corporation, on behalf of itself and its unincorporated division, Wyeth Consumer Healthcare, f/k/a Whitehall-Robins Healthcare (collectively "Wyeth"). Having considered the various memoranda filed by both sides and the applicable law, the Court concludes, for the reasons that follow, that Plaintiff's motion should be GRANTED.
BACKGROUND
On November 8, 2001, Jacqueline Coleman, a Louisiana citizen, filed suit in the 24th Judicial District for the Parish of Jefferson, Louisiana seeking damages for heart failure she alleges resulted from her taking over-the-counter medications containing phenylpropanolamine ("PPA"). She brought suit against seven drug manufacturers and distributors whose products contained PPA and two businesses from which she purchased the medication, including Walgreens Louisiana Co., Inc. (d/b/a "Walgreens"). Plaintiff sued Walgreens, a Louisiana citizen, in its capacity as a retailer.
Defendants Bayer, Novartis Pharmaceuticals, and Wyeth removed Coleman's action to this Court pursuant to 28 U.S.C. § 1441, claiming that Plaintiff fraudulently joined Walgreens as a defendant in this action for the sole purpose of preventing removal based on diversity of citizenship. Defendants argue that Plaintiff fails to state a cause of action against Walgreens because no duty exists under Louisiana law that requires a pharmacy to advise or warn consumers of the adverse effects of a particular drug. Defendants further assert that Plaintiff does not have a reasonable basis to state a claim against Walgreens for a breach of warranty against redhibitory defects, because she cannot establish that Walgreens had knowledge of the alleged dangers of PPA.
Plaintiff asserts that she has stated several viable claims under Louisiana law against Walgreens, not as a pharmacy but as a seller/retailer, and moves the Court to remand the action to the 24th Judicial District for the Parish of Jefferson, Louisiana.
DISCUSSION
To prove fraudulent joinder, the removing party has the substantial burden of proving "`that there is absolutely no possibility that the plaintiff will be able to establish a cause of action against the in-state defendant in state court, or that there has been outright fraud in the plaintiff's pleading of jurisdictional facts.'" Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 259 (5th Cir. 1995) (quoting Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir. 1983)). The Fifth Circuit has further held that
if there is even a possibility that a state court would find a cause of action stated against any one of the named in-state defendants on the facts alleged by the plaintiff, then the federal court must find that the in-state defendant(s) have been properly joined, that there is incomplete diversity, and that the case must be remanded to the state courts.B., Inc. v. Miller Brewing Co., 663 F.2d 545, 550 (5th Cir. 1981).
Accordingly, the Fifth Circuit requires that a district court confronted with a claim of fraudulent joinder must "`evaluate all of the factual allegations in the plaintiff's state court pleading in the light most favorable to the plaintiff, resolving all contested issues of substantive fact in favor of the plaintiff' and `then examine relevant state law and resolve all uncertainties in favor of the nonremoving party.'" Cavallini, 44 F.3d at 259.
Plaintiff asserts that she has stated valid claims against Walgreens for (1) breach of the warranty against redhibitory defects; (2) failure to deliver a product of the kind specified by the seller; (3) failure to sell a product fit for its ordinary usage; (4) negligence; (5) intentional and willful conspiracy; (6) fraud and misrepresentation; and (7) negligent and reckless misrepresentation. In support of her claims, Plaintiff alleges that all of the defendants, including Walgreens, knew or should have known of the unreasonable dangerous side-effects of consuming products with PPA, prior to the Yale study being released and the FDA order to discontinue the manufacture of products containing PPA. Plaintiff argues that all the defendants knew or should have known of other studies, regulatory actions, incidences of injury and/or death, concerns about safety among scientists and other professionals, meetings among pharmaceutical industry officers and employees, the desire of certain defendants to stop or delay regulatory action, and the contents of many of the defendants' own files, plans, and reports regarding the adverse health risks of PPA.
In order to remand this matter, the Court need only find that there is a possibility of recovery under one of the stated causes of action, not that Plaintiff may prevail against Walgreens on all of her claims. See B., Inc. v. Miller Brewing Co., 663 F.2d 545, 550 (5th Cir. 1981). The Court does not "decide whether the plaintiff will actually or even probably prevail on the merits, but look only for a possibility that [s]he may do so." Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 43 (5th Cir. 1992) (citing Green v. merada Hess Corp., 707 F.2d 201 (5th Cir. 1983)).
Under Louisiana law, to determine whether a plaintiff has stated a cause of action, the Court asks "whether the law extends a remedy to anyone under the factual allegations of the petition." Louisiana Paddlewheels v. Louisiana Riverboat Gaming Comm'n, 94-2015, p. 4 (La. 11/30/94), 646 So.2d 885, 888, n. 3. Accordingly, the question to be answered is, whether in the light most favorable to plaintiff, the petition states any valid cause of action for relief. City of New Orleans v. Board of Commissioners of Orleans Levee District, 93-069 (La. 7/5/94), 640 So.2d 237, 253.
Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice. La. Civ. Code art. 2520. Redhibition claims are classified as either "good faith" or "bad faith," depending on whether the seller knew of the defects in the product sold. A seller is in bad faith when he knew of the vice of the thing he sold but failed to declare it. See Associates Financial Services Co., Inc. v. Ryan, 382 So.2d 215, 220 (La.App. 3d Cir. 1980).
In the instant action, Plaintiff alleges that Walgreens was such a bad faith seller. Plaintiff asserts that Walgreens not only was aware of the adverse health risks posed by PPA-containing products prior to the Yale study that was released in 2000, but also conspired with the other defendants to conceal that such products were unsafe for human consumption. Furthermore, Plaintiff specifically alleges that all of the defendants, Walgreens included, were aware, or should have been aware, that PPA was unsafe, through studies performed prior to the Yale study, concerns among the industry of the dangerous side effects of PPA, and case reports involving PPA.
Plaintiff in the instant case has specifically alleged that Walgreens had knowledge of the dangerous side effects of PPA and has stated facts, which if accepted as true for the. purposes of this motion, give rise to a viable cause of action in redhibition.
This does not mean that the Court concludes that Plaintiff has not also stated other causes of action under Louisiana law. Rather, as discussed above, for purposes of this remand, the Court need only find that Plaintiff could possibly recover on one cause of action.
Accordingly;
IT IS ORDERED that Plaintiff Jacqueline Coleman's Motion to Remand (Rec. Doc. 16) should be and is hereby GRANTED and the action is hereby REMANDED to the 24th Judicial District for the Parish of Jefferson, Louisiana.
IT IS FURTHER ORDERED that Plaintiff's request for costs and expenses is DENIED. Each side is to bear its own costs related to this matter.