Opinion
Civil Action No. L-03-53
June 27, 2003
MEMORANDUM AND ORDER
Pending before the Court are Plaintiff's Motion to Remand, Defendant Wyeth's Motion to Stay All Proceedings Pending Transfer to MDL-1203, Defendant David Garza's Motion for Summary Judgment, and Defendant Wyeth's Motion for Leave to File Supplemental Post-Hearing Briefing. This Court heard arguments; from parties at a May 15, 2003 hearing on Plaintiff's Motion to Remand. For the following reasons, Plaintiff's Motion to Remand is DENIED, Defendant Wyeth's Motion to Stay All Proceedings Pending Transfer to MDL-1203 is DENIED in part and GRANTED in part, Defendant David Garza's Motion for Summary Judgment is GRANTED, and Defendant Wyeth's Motion for Leave to File Supplemental Post Hearing Briefing is DENIED.
I. Factual Background
Plaintiff Nancy Bejarano ("Plaintiff" or "Ms. Bejarano") is a Texas resident who was treated by Defendant Dr. David Garza ("Dr. Garza") between approximately January 1996 and January 1997. Over the course of his treatment of Ms. Bejarano, Dr. Garza prescribed Pondimin (fenfluramine) and Redux (dexfenfluramine) for obesity. Dr. Garza last saw Ms. Bejarano in January 1997. (Def. Wyeth's Resp. in Opp'n to Pl.'s Mot. to Remand Ex. G, H.)
Fenfluramine was commonly referred to and known as "fen-phen." Wyeth manufactured, marketed, and distributed the drug under the trade name Pondimin. (Pl.'s Orig. Pet. at 4.) Dexfenfluramine contains the same active ingredient as fenfluramine, and was manufactured, marketed, and distributed by Wyeth under the trade name Redux. Id. Both drugs were withdrawn from the market on September 15, 1997 when the Federal Food and Drug Administration ("FDA") issued a press release explaining that the drugs were being withdrawn because of findings that connected the drugs to heart valve abnormalities, including aortic regurgitation and mitral regurgitation, that could be discovered with an echocardiogram. Id. (See also Def. Wyeth's Resp. in Opp'n to Pl.'s Mot. to Remand at 11.) The FDA press release recommended that "patients using either of these[, that is Redux or Pondimin,] products stop taking them. Users of these two products should contact their doctors to discuss their treatment." (Def. Wyeth's Notice of Removal Attach. 5 at 1.)
Wyeth's own press releases, also issued on September 15, 1997, recommended that those who had taken the drugs contact their physicians, and noted that, in the studies upon which these recommendations were based, patients who suffered no symptoms were still at risk for abnormal echocardiograms. (Def. Wyeth's Notice of Removal Attach. 1-3.) Symptoms of abnormal heart valve findings included shortness of breath, chest pain, fainting, swelling of the ankles, or a new heart murmur. (Def. Wyeth's Notice of Removal Attach. 1.) Furthermore, there was extensive media coverage of the dangers associated with fen-phen diet drugs, both in the national printed press and broadcast media as well as in the local press. ( See Def. Wyeth's Notice of Removal Attach. 6-56.)
Ms. Bejarano stipulates that she suffered no symptoms until 2001, when she experienced generalized symptoms including shortness of breath and heart palpitations. She dismissed these symptoms, however, as resulting from stress and anxiety. (Pl.'s Mem. in Supp. of Mot. to Remand at 11.) Not until July 2002, after Ms. Bejarano continued to experience these symptoms and they became progressively worse, as well as experiencing fatigue and decreased tolerance to exercise, did she seek medical advice and an echocardiogram. At that time, she became aware that her health conditions were related to serious valvular regurgitation for which she will require surgery to repair her damaged heart valves. Id. at I, 11.
II. Procedural Background
Ms. Bejarano filed the instant suit on March 10, 2003, in state court, alleging negligence, design defect and marketing defect in connection with Wyeth's conduct in the marketing, promoting, and distributing of Pondimin and Redux. Ms. Bejarano also sued her doctor, Dr. David Garza, for medical negligence and fraud in prescribing Pondimin and Redux to her and concealing material information which exacerbated her injuries.
Defendant Wyeth removed the case to federal court on April 10, 2003, alleging fraudulent joinder of Defendant Dr. Garza. Defendant Wyeth alleged that Dr. Garza is fraudulently joined because any possible cause of action him is time-barred by Texas's medical malpractice statute of limitations. If the Court finds that Dr. Garza is fraudulently joined, his citizenship becomes irrelevant for jurisdictional purposes, and this Court would have jurisdiction on diversity grounds. 28 U.S.C. § 1332. Plaintiff subsequently filed a motion to remand the case to state court claiming that Dr. Garza is properly named as a defendant because exceptions to the Texas statute of limitations apply in this case. Defendant Dr. Garza has also filed a motion for summary judgment or the basis of the statute of limitations, and both Defendants have filed a motion to stay all proceedings pending transfer to MDL-1203. Fen-phen cases have been transferred to that court before the Honorable Harvey Battle, III, in the United States District Court for the Eastern District of Pennsylvania in order to promote consistent results and judicial economy.
Tex. Rev. Civ. Stat. art. 459Oi § 10.01.
III. Defendant Wyeth's Motion to Stay All Proceedings Pending Transfer to MDL 1203 (as it pertains to the motions currently before this Court)
As a preliminary matter, this Court DENIES Defendant's Motion to Stay as it pertains to Plaintiff's Motion to Remand, Defendant Garza's Motion for Summary Judgment, and Defendant Wyeth's Motion for Leave to File Supplemental Post-Hearing Briefing. This Court retains jurisdiction despite the fact that the MDL panel issued a Conditional Transfer Order ("CTO") on May 13, 2003. Plaintiff timely filed a notice of opposition to the transfer on May 22, 2003, causing the CTO to be stayed until further order of the MDL Panel. Rule 7.4(c) of the Rules of Procedure of the Judicial Panel on Multidistrict Litigation. 28 U.S.C. foll. § 1407. This Court is not barred from ruling on the pending motions to remand and for summary judgment. In deciding whether to rule on the instant motions, the Court should consider whether the motion raise "issues likely to arise in other actions pending in the transferee court." Shields v. Bridgestone/ Firestone, Inc., 232 F. Supp.2d 715, 718 (E.D.Tex. 2002). If the motions raise issues similar to those raised in other actions in the transferee court, this Court should grant the motion to stay and refrain from ruling on the instant motions. "Allowing the transferee court to rule on issues common to multiple cases avoids the risk of inconsistent and conflicting ruling while conserving judicial resources by avoiding duplicative efforts." Id.
The Court will address Defendant Wyeth's Motion to Stay All Proceedings Pending Transfer to MDL-1203 as it applies to all subsequent motions below, after discussing the three pending motions as to which the Motion to Stay is denied.
Both Plaintiff's Motion to Remand and Defendant Dr. Garza's Motion for Summary Judgment primarily raise an issue specifically relating to the facts of this case and the law of this state, expressly whether the statute of limitations has run on Plaintiff's medical malpractice claims against Dr. Garza under Tex. Rev. Civ. Stat. art. 459Oi § 10.01. This question is precisely the kind of question that this Court is equipped to handle. Defendant Wyeth's Motion for Leave to File Supplemental Post — Hearing Briefing is also appropriately addressed by this Court because it is in support of Wyeth's position with regards to Plaintiff's Motion to Remand. Therefore, Defendant Wyeth's Motion to Stay is DENIED as it relates to the instant motions before this Court.
IV. Plaintiff's Motion to Remand
A. Federal Jurisdiction
A defendant may remove any civil action brought in a State court to the proper federal district court when such a court has original jurisdiction over the action. 28 U.S.C. § 144(a). Federal jurisdiction is proper when a suit either arises in diversity or a federal question is involved. See 28 U.S.C § 1331, 1332. Neither party alleges a federal question in this case. Diversity jurisdiction is proper "where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different States." 28 U.S.C. § 1332. Additionally, "a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business." Id. The Fifth Circuit has construed 28 U.S.C. § 1446(b) to require that all defendants join in the removal petition. Johnson v. Helmerich Payne, Inc., 892 F.2d 422, 423 (5th Cir. 1990) (citing Tri-Cities Newspapers, Inc. v. Tri-Cities P P A Local 349, 427 F.2d 325 (5th Cir. 1970) and Harris v. Edward Hyman Co., 664 F.2d 943, 944 n. 3 (5th Cir. 1981)). "[A]s a general rule, removal requires the consent of all co — defendants. In cases involving alleged improper or fraudulent joinder of parties, however, application of this requirement to improperly or fraudulently joined parties would be nonsensical, as removal in those cases is based on the contention that no other proper defendant exists." Jernigan v. Ashland Oil, 989 F.2d 812, 815 (5th Cir. 1993) (per curiam).
B. Fraudulent Joinder
Plaintiff filed suit on March 10, 2003 in the 341st Judicial District court of Webb County, Texas. Defendant Wyeth removed to this Court on April 10, 2003. Although Defendant Dr. Garza did not expressly consent to the removal, as Defendant Wyeth has alleged that Plaintiff fraudulently joined Defendant Dr. Garza, no such consent is required. Id. Defendant Wyeth is a Delaware corporation with its principal place of business in New Jersey. Plaintiff is a resident of Laredo, Texas, as is Defendant Dr. Garza. Because Defendant Dr. Garza is a Texas resident, complete diversity does not exist, and this Court cannot retain jurisdiction unless Dr. Garza was fraudulently joined.
The moving party bears the burden of proving fraudulent joinder. Burden v. General Dynamics Corp., 60 F.3d 213, 217 (5th Cir. 1995). "The burden of persuasion on those who claim fraudulent joinder is a heavy one." Travis v. Irby, 326 F.3d 644, 649 (5th Cir. 2003). Thus, Defendant Wyeth bears this burden, and must put forward "evidence that would negate a possibility of liability" on the part of Defendant Dr. Garza. Id. at 650. The Fifth Circuit has explained the proper procedure for evaluating a claim of fraudulent joinder:
In evaluating fraudulent joinder claims, we must initially resolve all disputed questions of fact and all ambiguities in the controlling state law in favor of the non — removing party. We are then to determine whether that party has any possibility of recovery against the party whose joinder is questioned. We do not decide whether the plaintiff will actually or even probably prevail on the merits, but look only for a possibility that he may do so. If that possibility exists, then a good faith assertion of such an expectancy in a state court is not a sham and is not fraudulent in fact or in law.Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42-43 (5th Cir. 1992) (quotations and citations omitted).
The Fifth Circuit's standard for fraudulent joinder, however, is not completely clear. The most recent case to articulate the pertinent standard is Travis v. Irby, in which the court vacillated between two different formulations of what the moving party must prove: (1) that the non — moving party must have absolutely no possibility of recovery, and (2) that the non — moving party must not have a reasonable possibility of recovery. See generally Travis, 326 F.3d 644. See also Schauer v. Cargill, Inc., 2003 U.S. Dist. LEXIS 10035 at *18 (W.D. Tex. June 12, 2003). It therefore appears that the Fifth Circuit believes these two standards to be equivalent. Id.
The Fifth Circuit has also held that a summary judgment-like procedure should be used to resolve fraudulent joinder questions. See Travis, 326 F.3d at 646; Sid Richardson Carbon Gasoline Co. v. Interenergy Resources, LTD, 99 F.3d 746, 751 (5th Cir. 1996)in describing this procedure, the Travis Court explained that "the district court may . . . `pierce the pleadings' and consider summary judgment — type evidence in the record, but must also take into account all unchallenged factual allegations, including those alleged in the complaint, in the light most favorable to the plaintiff." Travis, 326 F.3d at 649 (citations omitted).
In order to determine whether Defendant Wyeth has met this burden, it is necessary to turn to the statute of limitations that Texas has set for medical malpractice claims and to apply it to the facts of this case.
C. Texas Medical Malpractice Statute 459Oi
Medical malpractice claims in Texas are governed by the Medical Liability and Insurance Improvement Act ("459Oi"). Tex. Rev. Civ. Stat. art. 459Oi. By enacting 459Oi, the Texas Legislature set a firm statute of limitations on medical malpractice cases of "two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim . . . for which the clam is made is completed." Tex. Rev. Civ. Stat. art. 459Oi § 10.01. Texas courts have delineated this statute as measuring the limitations period for medical negligence claims from one of three dates: (1) the occurrence of the breach or tort, (2) the last day of the relevant course of treatment, or (3) the last date of the relevant hospitalization. Id. See also Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001) (citing Husain v. Khatib, 964 S.W.2d 918, 919 (Tex. 1998)).
If the date of the alleged tort is ascertainable, then the statute must run from that date. Shah, 67 S.W.3d at 841 (citing Earle v. Ratliff, 998 S.W.2d 882., 887 (Tex. 1999)). "However, there may be instances when the exact date the alleged tort occurred cannot be ascertained. The second category in section 10.01 [of 459Oi] contemplates such a situation `wherein the patient's injury occurs during a course of treatment for a particular condition and the only readily ascertainable date is the last day of treatment.'" Id. (citing Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex. 1987)).
When injury has resulted from the taking of prescribed medication, the Texas Supreme Court has held that there "are some situations in which the statute would run from the date of the last drug treatment, if the course of that treatment is the direct cause of the injury." Gross v. Kahanek, 3 S.W.3d 518, 521 (Tex. 1999) (citing Rowntree v. Hunsucker, 833 S.W.2d 103, 105 (Tex. 1992)). This is precisely what: Plaintiff has alleged in the instant case. "In determining when a course of drug treatment ends, we consider such factors as: (1) whether the physician continues to examine or attend the patient, and (2) whether the condition requires further services from the physician." Id.
The Texas courts, however, have carved out two exceptions to 459Oi § 10.01 in order to preserve its constitutionality. These two exceptions are the "open courts" provision and fraudulent concealment. Without these exceptions, the relevant inquiry for the instant case — as can be gleaned from the factors listed by the Texas Supreme Court above — is when Dr. Garza's duty to Ms. Bejarano ended. Although the last date of treatment was in January 1997, the parties disagree as to whether or not Dr. Garza's duty as Ms. Bejarano's physician extended beyond that date. Not only will this inquiry be dispositive in a straight application of 459Oi in which no exception applies, but it will also be determinative in a fraudulent concealment analysis.
Constitutionality in this context refers to the Texas constitution as will be discussed below. TEX. CONST, art. 1, § 13.
Defendants provided an affidavit from Dr. Garza that the last date he treated Ms. Bejarano was in January 1997, as well as medical records to support that statement. (Def. Wyeth's Resp. in Opp'n to PL's Mot. to Remand Ex. G, H.) Plaintiff did not actually allege when her last appointment was, but provided no documentation to controvert Dr. Garza's affidavit.
This Court finds that, as a matter of Texas law, Dr. Garza's duty to Ms. Bejarano ended on the last date of treatment in January 1997, which is also when the doctor — patient relationship between them ended. Rotella v. Pederson, 144 F.3d 892, 897 (5th Cir. 1998) (citing Thames v. Dennison, 821 S.W.2d 380, 384 (Tex.App.-Austin 1991, writ denied)). See also Rowntree, 833 S.W.2d at 108. It is on that date that Dr. Garza. last saw Ms. Bejarano. He neither continued to examine her nor further prescribed medication past that date. Ms. Bejarano has provided no information to this Court that: she either sought to make a follow-up appointment past January 1997, nor that she in fact did see Dr. Garza after that date. Also, Ms. Bejarano's condition is not one that required "further services from the physician" as is contemplated by the Texas standard. Gross, 3 S.W.3d at 521. The relevant precedents appear to contemplate patients who have medical conditions that are ongoing and for which treatment is both continuously necessary and sought. Information available to this Court suggests that Ms. Bejarano's medical condition or treatment was not at all comparable.
Note that this will be discussed in further detail in the fraudulent concealment exception analysis.
1. "Open Courts" Provision
Although 459Oi has a strict two-year limitations period, the Texas Constitution guarantees that people bringing common — law claims will not be unreasonably or arbitrarily denied access to the courts. TEX. CONST, art. 1, § 13 ("All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law."). See also Shah, 67 S.W.3d at 841. "Consequently, our Constitution's open courts provision protects a person from legislative acts that cut off a person's right to sue before there is a reasonable opportunity to discover the wrong and bring suit." Id. (citing Neagle v. Nelson, 685 S.W.2d 11, 12 (Tex. 1985)).
Texas courts have interpreted "reasonable opportunity" to mean that a "showing must be made that due to the nature of the claim it was impossible or exceedingly difficult to discover the alleged wrong and bring suit within the two-year period." O'Reilly v. Wiseman, 2003 Tex. App. LEXIS 3461, *5-6 (Tex.App.-Austin 2003) (citing Shah, 67 S.W.2d at 846; Neagle, 685 S.W.2d at 28; Nelson v. Krusen, 678 S.W.2d 918, (Tex. 1984); Sax v. Votteler, 648 S.W.2d 661 (Tex. 1983)). The O'Reilly court is the most recent one to discuss this standard, and relies heavily on Shah in articulating the above standard. See Id. at *21-22; see also Shah, 67 S.W.2d at 846-47.
"It is the Plaintiff's burden to show that the nature of the claim was impossibly or exceedingly difficult to discover, and that she did not or could not have learned of the fact of injury within the two year period." Id. The plaintiff in O'Reilly was a woman with breast cancer who had to have a radical mastectomy after her mammogram was misread by her doctor. When her cancer was finally diagnosed, she had four months to file suit before the statute ran. Even though she was in the midst of treatment and surgery and had "discovered" the injury very shortly before the statute ran, the court did not calculate the statute from the time of her diagnosis but rather from the original mammogram. Id. at *25. "It is quite understandable that Ms. O'Reilly would concentrate on fighting her disease before pursuing her medical negligence claims, but because she had four months after discovering her injury in which to file such a claim against Dr. Wiseman, we cannot say that conditions made it impossible for her to do so." Id. Thus, the standard set by the Texas courts is an extremely stringent: one.
Texas courts have also found that a valid open courts claim does not re-start a two-year clock for statute of limitations purposes for a claim made under 459Oi:
Shah also attempted to clarify the `reasonable time standard' applicable when there is a valid open — courts claim. A plaintiff may not obtain relief under the open-courts provision if he does not use due diligence and sue within a reasonable time after learning about the alleged wrong. In Shah, the plaintiff knew about his alleged injury at least seventeen months before he brought suit. Because the plaintiff offered no valid explanation for the delay, the court concluded the suit was not filed within a reasonable time . . . Therefore, absent a valid explanation for delay which shows that the plaintiff was exercising due diligence, at least a one-year delay is likely to be considered unreasonable as a matter of law.Id., n. 13 at *24. Thus, although the courts look to the facts of each case, most Plaintiff's will be required to bring suit in less than one year after discovery occurs barring a valid explanation for delay.
Given the extent of the publicity surrounding fen-phen diet drugs, and given the stringent standard set by the Texas legislature and Texas courts, Ms. Bejarano had ample opportunity to reasonably discover her injury. She has not shown that it was "impossible" or "exceedingly difficult." Even if this Court were to start the statute of limitations from the time that Ms. Bejarano began to suffer symptoms in 2001, the suit is still barred under Texas law as she did not bring suit until almost two years after she could have reasonably discovered her injuries following the onset of symptoms.
2. Fraudulent Concealment
Fraudulent concealment in medical malpractice cases estops a doctor from relying on the statute of limitations to bar a Plaintiff's claims. Shah, 67 S.W.3d at 841; Bordelon v. Peck, 661 S.W.2d 907, 909 (Tex. 1983). "The plaintiff must show the health-care provider actually knew a wrong occurred, had a fixed purpose to conceal the wrong, and did conceal the wrong from the patient. Fraudulent concealment tolls, limitations until the plaintiff discovers the fraud or could have discovered the fraud with reasonable diligence." Shah, 67 S.W.3d at 841 (citations omitted). Breach of the physician's duty, while actionable, does not in and of itself constitute fraudulent concealment; there must be the element of willfully concealing the wrong. Earle v. Ratliff, 998 S.W.2d 882, 888 (Tex. 1999) (explaining that a doctor failing to remove gauze sponge from inside a patient following surgery may constitute negligence, but standing alone is not fraudulent concealment unless the doctor did so knowingly without informing the patient). "A person who asserts fraudulent concealment to avoid summary judgment on limitations must raise a genuine issue of material fact that would support his assertion." Id.
"Moreover, fraudulent concealment is a defense which flows from the patient — physician relationship. When the relationship ends, the duty to disclose, which is the basis of fraudulent concealment, ceases to exist." Thames v. Dennison, 821 S.W.2d 380, 384 (Tex.App.-Austin 1991, writ denied) (citing Borderlon, 661 S.W.2d at 910 (Barrow, J., dissenting)). See also Rotella v. Pederson, 144 F.3d 892, 897-98 (5th Cir. 1998); Savage v. Psychiatric Institution, 965 S.W.2d 745, 754 (Tex.App.-Ft. Worth 1998); Rhodes v. McCarron, 763 S.W.2d 518, 524 (Tex.App.-Amarillo 1988). While it seems to this Court that this rule makes little sense and is particularly harsh to Plaintiff's who reasonably discover an injury well after both the limitations period and their relationship with their doctor ends, leaving them with no recovery whatever, it is nonetheless the law in Texas. Ms. Bejarano, additionally, has not met her burden of showing an essential element of fraudulent concealment: that Dr. Garza knew about the harmful effects of the diet drugs he prescribed her and willfully concealed that knowledge from her. Rather, the FDA warnings concerning fen-phen only appeared in September 1997, eight months after the end of Dr. Garza's relationship with, and thus his duty to, Ms. Bejarano. Further, Ms. Bejarano has provided this Court with no evidence to controvert Dr. Garza's affidavit that their doctor — patient relationship ended in January 1997. Thus, because the doctor — patient relationship ended in January 1997 as did Dr. Garza's duty to Ms. Bejarano, Ms. Bejarano does not have a valid fraudulent concealment claim. She has also failed to show an exception to 459Oi under the open courts provision. The statute of limitations under 459Oi has run on Ms. Bejarano's claims against Dr. Garza, and Dr Garza has thus been fraudulently joined because there is no possibility of his liability. As Dr. Garza is fraudulently joined, this court has diversity jurisdiction pursuant to 28 U.S.C. § 1332. For these reasons, Plaintiff's Motion to Remand is DENIED.
V. Defendant Dr. Garza's Motion for Summary Judgment
Defendant Dr. Garza's Motion for Summary Judgment is predicated upon his assertion that the statute of limitations under Tex. Rev. Civ. Stat. art. 459Oi § 10.01 has run. As is discussed above, because this Court finds that Plaintiff's claims against Dr. Garza are time-barred, his motion for summary judgment is GRANTED.
VI. Defendant Wyeth's Motion for Leave to File Supplemental Post-Hearing Briefing
Defendant Wyeth's Motion for Leave to File Supplemental Post-Hearing Briefing is DENIED as moot as this Court has addressed the motion at issue in the hearing.
VII. Defendant Wyeth's Motion to Stay All Proceedings Pending Transfer to MDL 1203 (as it pertains to potential future motions made to this Court)
Because this case is not remanded and no issues of state law remain, and because fen-phen cases are being consolidated in the MDL court, Defendant Wyeth's Motion to Stay All Proceedings Pending Transfer to MDL 1203 is GRANTED as it pertains to all potential future motions made to this Court.
VIII. Conclusion
For the foregoing reasons, Plaintiff's Motion to Remand is DENIED, Defendant Wyeth's Motion to Stay All Proceedings Pending Transfer to MDL-120.3 is DENIED in part and GRANTED in part, Defendant David Garza's Motion for Summary Judgment is GRANTED, and Defendant Wyeth's Motion for Leave to File Supplemental Post-Hearing Briefing is DENIED.
IT IS SO ORDERED.
To insure full notice, each party who receives this notice shall forward a copy of it to every other party and affected non-party even though they may have been sent one by the Court.