Opinion
CIVIL ACTION NO. 3:03-CV-1282-K
July 31st, 2003
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiffs' motion to remand and Defendant Wyeth's motion to stay. For the following reasons, Plaintiffs' Motion to Remand is GRANTED. Wyeth's Motion for Stay is DENIED AS MOOT.
I. Background
This is a personal injury case in which Plaintiffs Debra Rogers-Gamble and Margaret Creeger Hamilton seek damages for valvular heart disease allegedly caused by the diet drugs fenfluramine and dexfenfluramine, commonly known as Pondimin and Redux respectively. Plaintiffs sued Wyeth, which manufactured the diet drugs at issue, Walgreens Co., which distributed the drugs, and Drs. Lena Bruce and Dave McNeill, III, who prescribed the drugs.
Plaintiffs filed this case along with other individuals on August 29, 2002, in Jefferson County, Texas; however Plaintiffs were severed from that case and transferred to Dallas County. On June 6, 2003, Wyeth removed this case alleging diversity jurisdiction. It is undisputed that Plaintiffs and Drs. Bruce and McNeil are all Texas residents, but Wyeth contends that complete diversity exists because Drs. Bruce and McNeil were fraudulently joined. Wyeth does not challenge the validity of Plaintiffs' claims against the doctors. Instead, Wyeth argues that Plaintiffs cannot recover against either doctor because their claims are barred by limitations. Drs. Bruce and McNeil have not been served, and therefore, have not answered asserting limitations as an affirmative defense.
II. Legal Standard
To prove fraudulent joinder, the removing party must establish that "there is no reasonable basis for predicting that plaintiffs might establish liability . . . against the in-state defendants." Badon v. RJR Nabisco Inc., 224 F.3d 382, 393 (5th Cir. 2000). The removing party bears a heavy burden of proof. B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981). When deciding the fraudulent joinder issue, the Court must resolve all disputed facts and issues of state law in plaintiff's favor. Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir. 1983).
III. Analysis
The parties agree that Plaintiffs' claims against Drs. Bruce and McNeil is subject to a two-year statute of limitations. Tex. Rev. Civ. Stat. Ann. Art. 4590i, § 10.01. Generally, the limitation is absolute. Morrison v. Chan, 699 S.W.2d 205, 208 (Tex. 1985). However, it is subject to two exceptions. The two-year limitations period will be tolled if (1) the defendant doctor fraudulently concealed from the plaintiff the cause of action for medical malpractice or (2) it was impossible for the plaintiff to have discovered the injury before limitations expired. Borderlon v. Peck, 661 S.W.2d 907, 908-09 (Tex. 1983); Naegle v. Nelson, 685 S.W.2d 11, 12 (Tex 1985). Because limitations as an affirmative defense is a procedural device, it is waived if not pled. Tex. R. Civ. P. 94; Franco v. Allstate Ins. Co., 505 S.W.2d 789, 793 (Tex. 1974).
Because the parties assume for purposes of this motion that Plaintiffs' claims against Drs. Bruce and McNeil are cognizable, the Court must remand the case if there is any possibility that Plaintiffs will survive the limitations defense. Sid Richardson Carbon and Gasoline Co. v. Interenergy Resources, Ltd., 99 F.2d 746, 753(5th Cir. 1996). Therefore, to establish fraudulent joinder, Wyeth must show: (1) the limitations period expired; (2) Plaintiffs have no reasonable possibility of establishing that Drs. Bruce and McNeil fraudulently concealed Plaintiffs causes of action; and (3) Plaintiffs have no reasonable possibility of establishing that it was impossible for them to discover their injuries before limitations ran. In addition, the statute of limitations defense must be pled. Franco, 505 S.W.2d at 793. If any one element is missing, Plaintiffs could conceivably prevail against Drs. Bruce and McNeil, and complete diversity would exist. Although it is undisputed that more than two-years elapsed between the time Plaintiffs took the diet drugs and the time they brought suit, Wyeth failed to prove all of the elements necessary to establish federal jurisdiction.
First, Drs. Bruce and McNeil have not filed an answer asserting limitations as a defense. In fact, neither doctor has been served. The possibility remains that at least one of the doctors will wave the limitations defense by not pleading it. Moreover, the statute of limitations defense is not currently before the Court, because no party has pled it. The potential that the doctors may allege a limitations defense does not establish that Plaintiffs cannot recover against the doctors, and therefore, cannot serve as a basis for finding that the doctors were fraudulently joined.
Second, Wyeth has not established that Drs. Bruce and McNeil did not fraudulently conceal Plaintiffs causes of action. The same publicity that Wyeth argues put Plaintiffs on notice of their potential injuries could also serve as evidence that Drs. Bruce and McNeil knew of Plaintiffs' potential injuries but, fearing a malpractice lawsuit, fraudulently concealed the need for a cardiac examination. Therefore, viewing all facts in the light most favorable to Plaintiffs, Wyeth has established only a fact issue that would require resolution by a jury. It has not established that Plaintiffs cannot recover against Drs. Bruce and McNeil.
IV. Conclusion
Wyeth has not met its heavy burden of proof that would warrant a finding of fraudulent joinder. The Court determines that complete diversity does not exist, and that remand is necessary. Therefore, Plaintiffs motion to remand is GRANTED, and Wyeth's motion to dismiss is DENIED AS MOOT.
SO ORDERED.