Opinion
MDL DOCKET NO. 1203, CIVIL ACTION NO. 03-20128.
June 12, 2003
MEMORANDUM AND PRETRIAL ORDER NO.
Before the court are the motions of plaintiff Fredda Rainey and defendant Dr. Luis Franco to remand this action to the Circuit Court of Jefferson County, Alabama. The motions are before the undersigned as the transferee judge in MDL 1203, the mass tort litigation involving the diet drugs commonly known as Fen-Phen. No federal claim for relief is alleged.
In brief summary, plaintiff filed suit for injuries sustained as a result of her use of Pondimin, one of the weight loss drugs. The complaint names as defendants: (1) Wyeth, the manufacturer of Pondimin and a party of diverse citizenship from the plaintiff; (2) nine Alabama sales representatives of Wyeth who plaintiff alleges marketed and promoted Pondimin; and (3) an Alabama doctor, Dr. Luis Franco, who prescribed Pondimin to the plaintiff.
Pondimin was the trade name under which Wyeth marketed fenfluramine, half of the diet drug cocktail known as "Fen-Phen." Dexfenfluramine, containing the same active ingredient as fenfluramine, was also marketed by Wyeth, and was known under the trade name Redux.
Wyeth was previously known as American Home Products Corporation.
Although plaintiff alleges that sales representative Neil Blanton was an Alabama resident, in his affidavit he states he is actually a citizen of Florida.
Plaintiff originally filed her complaint in the state court on November 5, 2002, more than five years after Pondimin was withdrawn from the market in September, 1997. On December 6, 2002, Wyeth removed the action to the United States District Court for the Northern District of Alabama. Thereafter, plaintiff and defendant Dr. Franco separately moved to remand under 28 U.S.C. § 1446. The Alabama federal court deferred ruling on plaintiff's motion, and the case was thereafter transferred to this court as part of MDL 1203.
The plaintiff and defendant Franco maintain that remand is appropriate because complete diversity does not exist as required under 28 U.S.C. § 1332(a). Defendant Wyeth counters that the non-diverse physician and sales representatives were fraudulently joined and thus should be disregarded for purposes of determining diversity of citizenship of the parties.
I.
Under the federal removal statute, "any civil action brought in a state court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court." 28 U.S.C. § 1441(a). Federal district courts have original jurisdiction over all civil actions between citizens of different states if the amount in controversy exceeds $75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a)(1). Complete diversity, of course, is required. State Farm Fire Cas. Co. v. Tashire, 386 U.S. 523, 530-31 (1967). If an action originally instituted in a state court could have been brought in federal court pursuant to diversity jurisdiction, the defendants may remove it to federal court provided certain procedures are followed and certain conditions met. 28 U.S.C. § 1441 and 1446. Similarly, if the federal court subsequently determines that it does not have subject matter jurisdiction over a removed action, it must remand the action to the state court where it originated. 28 U.S.C. § 1447(c). A plaintiff or a defendant may seek to remand the case, or the court may do so on its own motion. American Fire Cas. Co. v. Finn, 341 U.S. 6, 16-19 (1951); 16 Moore's Federal Practice, § 107.41[1][b][i] (Matthew Bender 3d ed.).See also Moses v. Ski Shawnee, Inc., 2000 WL 1053568 at *2 (E.D. Pa. July 31, 2000).
Under our Court of Appeals decision in Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990), joinder is fraudulent `where there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendant or seek a joint judgment.' The presence of a party fraudulently joined cannot defeat removal. Wilson v. Republic Iron Steel Co., 257 U.S. 92, 97 (1921).
As an MDL court sitting within the Third Circuit, we must apply our Court of Appeals' fraudulent joinder standard. See In re Korean Airlines Disaster, 829 F.2d 1171, 1174 (D.C. Cir. 1987); In re Ikon Office Solutions, Inc. Secs. Litig., 86 F. Supp.2d 481, 485 (E.D. Pa. 2000). As discussed above, we must decide whether there is a "reasonable basis in fact or colorable ground supporting the claim against the joined defendant."Boyer, 935 F.2d at 111.
We recognize that the burden on Wyeth to establish fraudulent joinder is a heavy one. Wilson, 257 U.S. at 111. While we "must resolve all contested issues of substantive fact in favor of plaintiff," we do not take this to mean we must blindly accept whatever plaintiff or the defendant seeking remand may say no matter how incredible or how contrary to the overwhelming weight of the evidence. Id. We are also cognizant that the removal statute must be construed narrowly, and "all doubts should be resolved in favor of remand." Steel Valley Auth. v. Union Switch and Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987) (citation omitted). The Supreme Court made it clear inWilson that if a plaintiff contests a defendant's assertion that joinder of another defendant was a sham to defeat removal, the District Court must determine the facts from the evidence.Wilson, 257 U.S. at 98. We are not to decide automatically in favor of remand simply because some facts may be said to be in dispute.
On matters of substantive law, "[i]f there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that joinder was proper and remand the case to state court." Boyer, 913 F.2d at 111 (citation omitted). We are mindful that our inquiry into Wyeth's claim of fraudulent joinder is less searching than that permissible when a party seeks to dismiss a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Batoff v. State Farm Ins. Co., 977 F.2d 848, 852 (3d Cir. 1992); see also Gaul v. Neurocare Diagnostic, Inc., No. 02-CV-2135, 2003 WL 230800, at *2 (E.D. Pa. Jan. 3, 2003). In other words, simply because a claim against a party may ultimately be dismissed for failure to state a claim does not necessarily mean that the party was fraudulently joined. The test is whether this court thinks there is a "reasonable basis" for finding the claim to be colorable, that is, whether it is "wholly insubstantial and frivolous." Batoff, 977 F.2d at 852.
II.
We first address defendant Wyeth's contention that Dr. Luis Franco, the prescribing physician and a citizen of Alabama, was fraudulently joined solely for the purpose of destroying diversity of citizenship and preventing removal. Plaintiff has brought claims against him for medical negligence, as well as general claims for fraud and fraudulent concealment.
Wyeth argues that the complaint does not state a colorable claim against Dr. Franco because it is time-barred under the Alabama Medical Liability Act ("AMLA"), which states in relevant part:
All actions against physicians, surgeons, dentists, medical institutions or other health care providers . . . must be commenced within two years . . . and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier, provided further, that in no event may the action be commenced more than four years after such act. . . .
Ala. Code § 6-5-482(a) (emphasis added). This statute governs all claims by a patient against her physician that arise from the physician-patient relationship, Collins v. Ashurst, 821 So.2d 173, 175 (Ala. 2001), and sets forth a two year limitations period. Ala. Code § 6-5-482(a). Pondimin was withdrawn from the market in September, 1997, while plaintiff's lawsuit was not filed until November, 2002. Plaintiff does not deny that more than two years have elapsed between the time when plaintiff ingested the diet drug and the time when the doctor was sued. Rather, she first argues that the two year statute of limitations does not bar the action because of the Alabama discovery rule, which allows a plaintiff to file suit within six months after the discovery of a medical injury.
The limitations period for a medical malpractice action under the AMLA begins to run upon the accrual of a cause of action, that is, when the act complained of results in legal injury to the plaintiff. McCormick v. Aderholt, 293 F.3d 1254, 1260 (11th Cir. 2002) (applying Alabama law). See also Grabert v. Lightfoot, 571 So.2d 293, 294 (Ala. 1990). The key inquiry in determining the accrual date of a claim is not the date of the doctor's negligent act, or the date on which the plaintiff became aware of the degeneration, but the time when she first suffered the ill effect of the wrongful act. Ex parte Sonnier, 707 So.2d 635, 637 (Ala. 1997). Since there is no latency period between ingestion of Pondimin and any injury, plaintiff's injury at the latest commenced, and thus the limitations period began to run, shortly after Pondimin went off the market in late 1997. Based on the two-year statute of limitations alone, plaintiff would have needed to file her complaint by late 1999. Clearly, her November, 2002 filing is well beyond this deadline.
Judge Louis C. Bechtle, who presided over the fairness hearing in connection with the approval of the Nationwide Class Action Settlement, found that there is no latency period between the time of diet drug use and injury. In his August 20, 2000 Order approving settlement, Judge Bechtle stated "[t]he absence of a latency period between ingestion of [the diet drug] and the development of clinically detectable [heart disease] is . . . confirmed by a number of studies . . ., [each of which finds] that there was no emergence of new disease after some latency period." Memorandum and Pretrial Order No. 1415 at 46 (Aug. 28, 2000).
However, as stated above, the discovery provision in Ala. Code § 6-5-482(a) modifies the AMLA's two year limitation and gives an additional six months to file a claim from the time of discovery or when it would have been reasonable to discover such injury. Plaintiff claims that she did not discover her injury until October, 2002, when she had an electrocardiogram ("EKG"). She therefore contends her action, filed a month later in November, 2002, falls within the six month safe harbor period.
We find that plaintiff's allegation that she did not discover her injury until October, 2002 has no reasonable basis in fact.Boyer, 913 F.2d at 111. Plaintiff admitted knowledge of her injury in March, 2000. On a form ("Orange Form #1") signed by plaintiff on March 29, 2000 to exercise her right to opt out of the national diet drug Settlement, she was asked to respond to the following: "If you believe you have an adverse condition related to the use of Pondimin . . . please briefly describe your condition below." Plaintiff answered "yes." Directly below this question, right above where plaintiff signed and dated the form, it stated that plaintiff "had an opportunity to read the Official Court Notice transmitted to Class Members in connection with the nationwide Class Action Settlement." The Official Court Notice of the Nationwide Diet Drug Class Action Settlement contained a penalty provision for false claims specifying that "[a]ll Settlement Forms must be signed under penalties of perjury." By signing and dating the Orange Form #1, plaintiff swore that she knew of her injury as early as March, 2000. Yet, she did not initiate the suit within the six month period allowed under the discovery provision of the AMLA. Ala. Code § 6-5-482(a).
The fact that plaintiff may not have known about the seriousness of her injury in March, 2000 is inconsequential. As noted above, the limitation period "begins to run when the first injury, however slight occurs, even though that injury may later become greater or different." Free v. Granger, 887 F.2d 1552, 1555-56 (11th Cir. 1989). See also McCormick v. Aderholt, 293 F.3d 1254, 1260 (11th Cir. 2002).
Plaintiff relies upon this court's Memorandum and Pretrial Order No. 2710 in Price v. American Home Products, CIV.A. No. 02-20229 (E.D. Pa. Jan. 17, 2003). However, that decision does not support plaintiff's position. In that case, also part of the national diet drug litigation, we deemed Wyeth's removal to have been improper and remanded. Among other things, the plaintiff there had not provided information on an Orange Form akin to the information given by the plaintiff here. Moreover, Price involved the law of the District of Columbia, not the law of Alabama.
Alternatively, the plaintiff contends that she has properly pleaded fraud and fraudulent concealment against the doctor, and therefore those claims at least are not barred by the statute of limitations. Where there is fraud or concealment of tortious conduct, the AMLA specifies that the statute of limitations may be tolled "until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have two years within which to prosecute his action." Ala. Code §§ 6-2-3, 6-5-482(b). Plaintiff claims in her complaint that the doctor committed actionable fraud by "failing to adequately warn her of the dangers and side effects associated with Pondimin use . . . knowingly concealing the dangers associated with the diet drug and failing to advise her to undergo a[n] . . . [EKG]." She alleges she did not learn about the fraud until October, 2002 when an EKG revealed heart damage.
There is no reasonable basis in fact to accept the October, 2002 date. As discussed above, plaintiff had actual knowledge of the injuries in March, 2000. Constant v. Wyeth, No. 3:03-0052, slip op. at 9 (M.D. Tenn. April 9, 2003). Thus, her fraud claims against Dr. Franco do not support her quest for remand.
The plaintiff's claims against Dr. Franco are barred by the statute of limitations. There is no colorable ground to support the claims against him, Boyer, 913 F.2d at 111, and he is fraudulently joined. Thus, we need not reach the issue of whether plaintiff's claims are also barred by the language in the AMLA that provides that "in no event may the action be commenced" after four years. Ala. Code § 6-5-482(a).
III.
We next turn to Wyeth's contention that nine sales representatives were fraudulently joined — Joy Boozer, David Wurm, Michael Crawford, Neil Blanton, Sam Wright, Steven Sells, Mitchell DeLoach, William Owen, and Karen Cunningham. At least eight of them are Alabama citizens and thus non-diverse defendants. Plaintiff has brought claims against the sales representatives, along with Wyeth, for their alleged fraudulent, negligent and/or wanton marketing, promotion, selling, and/or distribution of Pondimin.
We note first that there is no indication in the complaint that the plaintiff, or the plaintiff's physician Dr. Franco, received any drugs from the sales representative defendants. In fact, according to an uncontested affidavit submitted by Dan J. Shepherd, the Zone Vice President of Wyeth's Southern Business Unit, no Wyeth sales representative ever promoted Pondimin. Additional affidavits submitted by eight of the nine sales representative defendants further confirm that they never advertised, assembled, created, designed, detailed, distributed, labeled, made, manufactured, marketed, packaged, promoted, sold, sterilized, supplied or tested Pondimin, or trained anyone to do so, nor did they call or meet with Dr. Franco. Since Alabama law only holds corporate employees liable for wrongful actions in which they personally participate, plaintiff has no colorable claim against the sales representatives. Ex Parte Charles Bell Pontiac-Buick-Cadillac-GMC, Inc., 496 So.2d 774, 775 (Ala. 1986); Turner v. Hayes, 719 So.2d 1184, 1188 (Ala.Civ.App. 1997). In fact, in the complaint, plaintiff barely discusses the sales representatives except generally to aver their involvement in marketing and promoting Pondimin. In her brief in support of the motion to remand, she does not even mention them.
No affidavit was submitted for defendant Crawford, who plaintiff has been unable to serve. However, Mr. Shepherd states that Mr. Crawford similarly could not have promoted Pondimin.
Plaintiff has not provided a scintilla of evidence that the sales representative either promoted Pondimin generally or specifically to Dr. Franco. Since she has no colorable claim against them, we therefore find that they too were fraudulently joined.
IV.
Accordingly, the motions of plaintiff and of defendant Franco to remand to the state court of Alabama will be denied.
Defendant Franco alternatively requests, seemingly as an afterthought, that this court sever the plaintiff's claims against him and remand these claims to state court. However, Dr. Franco cites no authority for this proposition, and there does not appear to be consent by the parties to sever the claims against him. Further, as this court has determined as a matter of law that Dr. Franco was fraudulently joined, we will not sever and remand a non-colorable claim.
PRETRIAL ORDER NO.
AND NOW, this day of June, 2003, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that the motions of plaintiff Fredda Rainey and defendant Luis Franco to remand this action to the Circuit Court of Jefferson County, Alabama (Bessemer Division), are DENIED.