Opinion
Civil Action No. 02-059, Section: E/1
March 11, 2002
RULING ON MOTION
This lawsuit was removed to Federal district court from the 34th Judicial District Court, Parish of St. Bernard, based on diversity jurisdiction. Rec. doc. #1. The only non-diverse defendants, Dr. Ida Fattel and Dr. Glenn Hedgpeth, filed a Rule 12(b)(6) motion to dismiss or stay. Rec. doc. #7. Plaintiffs oppose the motion. Rec. doc. #11. The matter was taken under submission on the parties' memoranda at an earlier date.
BACKGROUND
Defendant GlaxoSmithKline PLC ("GlaxoSmithKline") is a pharmaceutical company that manufactured and marketed the prescription drug "Lotronex" to treat Irritable Bowel Syndrome. Lotronex was first introduced to the U.S. market in February, 2000, and was withdrawn from the market in November, 2000, after reports of serious complications related to its use. Dr. Fattel and Dr. Hedgpeth prescribed Lotronex to treat the defendants, who had their prescriptions filled at pharmacies owned by defendants Walgreen Company, Sav-A-Center and Wal-Mart Stores, Inc. Plaintiffs, claiming damages as a result of their use of the Lotronex, allege various state law causes of action against defendants, including medical malpractice claims against the two physicians.
ANALYSIS
Dismissal of a complaint pursuant to Fed.R.Civ.P. 12(b)(6) is proper only if the pleadings on their face reveal beyond a doubt that the plaintiff can prove no set of facts that would entitle him to relief, or if an affirmative defense or other bar to relief appears on the face of the complaint. Garrett v. Commonwealth Mortg. Corp. of America, 938 F.2d 591, 594 (5th Cir. 1991). The Court must assume that the allegations in plaintiff's complaint are true, and must resolve any doubt regarding the sufficiency of plaintiff's claims in his favor.Fernandez-Monte v. Allied Pilots Ass'n., 987 F.2d 278, 284 (5th Cir. 1993). Motions to dismiss for failure to state a claim are disfavored in the law because the Federal Rules of Civil Procedure "require only 'notice' pleading — that is "a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests". Mahone v. Addicks Utility District of Harris County, 836 F.2d 921, 926 (5th Cir. 1988) (citingConley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957) (quoting Fed.R.Civ.P. 8(a)(2))).
Movants argue that plaintiffs' medical malpractice claims against them should be dismissed because they are premature. They point out that under the Louisiana Medical Malpractice Act, La. R.S. 40:1299.401 et seq., all malpractice claims against health care providers must submitted for review by a medical review panel prior to filing suit against the health care provider on those claims. Plaintiffs argue that the federal courts in Louisiana have held that prematurity, that is, failure to submit the claims to a medical review panel prior to filing suit, does not support dismissal of those claims against non-diverse defendants.
The issue before the court usually arises in the context of a plaintiff's motion to remand after removal by diverse defendants claiming that the non-diverse defendants are fraudulently joined. See, e.g., Erdey v. American Honda Co., Inc., 96 F.R.D. 593 (M.D. La. 1983); Doe v. Cutter Biological, 774 F. Supp. 1001 (E.D. La. 1991); Perry v. McNulty, 794 F. Supp. 606 (E.D. La. 1992); Kelly v. Danek Medical, Inc., 1994 WL 321074 (E.D. La.); Ohler v. Purdue Pharma, L.P., 2002 WL 88945 (E.D. La.). In its motion to dismiss, doctors Fattel and Hedgpeth do not allege fraudulent joinder, but simply argues that the suit against the non-diverse defendants is premature under Louisiana law therefore should be dismissed. There is no dispute that the defendant doctors are health care providers within the meaning of the Louisiana Medical Malpractice Act, or that plaintiffs' claim against them is a medical malpractice claim. It is not clear from the record whether plaintiffs' claims have been presented to a medical review panel, but that is not dispositive of the motion.
Plaintiffs have filed a motion to remand, which is set for oral argument at a later date. Rec. doc. #9.
A party alleging fraudulent joinder must prove that "there is no possibility that the plaintiff would be able to establish a cause of action against an in-state defendant in state court", essentially the same standard required to succeed on a Rule 12(b)(6) motion to dismiss. According to the district court in Cutter, "Epirocedural prematurity is not a conceptually accurate measure of fraudulent joinder if the claim theory asserted can be said to have plausible substantive merit. Prematurity does not trump viability." Id. at 1004; see also Erdey, 96 F.R.D. at 597 (Although the medical malpractice action against the medical defendants was premature, it "nevertheless stated a cause of action against those defendants."); Perry, 794 F. Supp. at 608 (Even though plaintiff is procedurally barred at that time from proceeding against the non-diverse medical defendants, "she certainly has stated a cause of action that could impose liability on the Louisiana defendants."; Kelly, 1994 WL 321074 2 (Even though plaintiffs chose to follow Louisiana law by not naming medical malpractice defendants in initial lawsuit, medical malpractice allegation included against those non-diverse and not yet named medical defendants stated a cause of action that might impose liability on them.); Ohler, 2002 WL 88945 5 (collecting Eastern District cases that have followed the rationale in Erdey.) That reasoning is likewise true for this motion to dismiss. Even if plaintiffs' suit against the defendant doctors is premature, is nevertheless states a potentially viable claim against those defendants in state court, thus survives defendants' motion to dismiss.
Cutter Biological, 774 F. Supp. at 1003, quoting B., Inc. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981).
Defendants have alternatively moved for a stay pending medical panel review. The Court finds that a stay at this time would be premature considering plaintiffs' pending motion to remand.
Accordingly, considering the complaint, the parties' memoranda, and the law, and for the reasons assigned, defendants Dr. Ida Fattel's and Dr. Glenn Hedgpeth's motion to dismiss or alternatively to stay, is DENIED.