Opinion
CASE NO. 19-81474-CIV-SINGHAL
03-02-2020
Philip B. EPSTEIN, Plaintiff, v. GILEAD SCIENCES, INC., Charles Packard, Cesar Pizarro, and Luis Grullon, Defendants.
Debra Daumit Klingsberg, Law Offices of Kramer & Klingsberg, George William Kramer, Delray Beach, FL, for Plaintiff. Alycia Degen, Pro Hac Vice, Debra Elaine Pole, Joshua E. Anderson, Pro Hac Vice, Sidley Austin LLP, Los Angeles, CA, Barbara Bolton Litten, Gunster Yoakley & Stewart, P.A., West Palm Beach, FL, for Defendants.
Debra Daumit Klingsberg, Law Offices of Kramer & Klingsberg, George William Kramer, Delray Beach, FL, for Plaintiff.
Alycia Degen, Pro Hac Vice, Debra Elaine Pole, Joshua E. Anderson, Pro Hac Vice, Sidley Austin LLP, Los Angeles, CA, Barbara Bolton Litten, Gunster Yoakley & Stewart, P.A., West Palm Beach, FL, for Defendants.
ORDER
RAAG SINGHAL, UNITED STATES DISTRICT JUDGE
THIS CAUSE has come before the Court upon Plaintiff, Philip B. Epstein's, Motion to Remand (DE [15] ). Defendants Gilead Sciences, Inc. ("Gilead"), Charles Packard ("Packard"), Cesar Pizarro ("Pizarro"), and Luis Grullon ("Grullon") (collectively, "Defendants") have filed a Memorandum in Opposition to Plaintiff's Motion to Remand (DE [18] ). Plaintiff has filed a Reply Memorandum (DE [19] ) and the matter is ripe for review.
I. BACKGROUND
Plaintiff filed suit in the Florida circuit court for damages he allegedly sustained as a result of having ingested the prescription medications Atripla and Viread (the "medications") for the treatment and management of Human Immunodeficiency Virus-1 ("HIV") infection. Gilead manufactured the medications and Packard, Pizarro, and Grullon are alleged to have been sales representatives who promoted and marketed the medications to physicians, hospitals, and community health agencies in South Florida.
Plaintiff alleges that the medications contained the drug compound tenofovir which, when activated inside the human body, fights HIV by blocking the protein that HIV needs to replicate itself. Plaintiff's doctors prescribed Atripla, and then Viread, to Plaintiff for a period of about three years, after which his physicians changed his antiretroviral regimen to one that did not contain tenofovir. Plaintiff alleges that Atripla and Viread contained a form of tenofovir known as TDF that is toxic to kidneys and bones in the prescribed amounts and, as a result of taking Atripla and Viread, he sustained damage to both his kidneys and bones. Plaintiff alleges that Gilead knew that TDF posed a safety risk to patients' kidneys and bones, but misrepresented the safety of Atripla and Viread when promoting the medications to doctors. Plaintiff has filed suit against Gilead, alleging claims of product liability, fraud, Florida's Deceptive and Unfair Trade Practices Act, and breach of express and implied warranties. Plaintiff has also alleged claims for strict product liability and negligence against Gilead, Packard, Pizarro, and Grullon.
Gilead removed the case to this Court (DE [1] ) on the basis of diversity of citizenship, 28 U.S.C. § 1331(a)(1). Although Plaintiff's Complaint alleged that the individual Defendants are citizens of Florida, Gilead's Notice of Removal contends that the individual Defendants were fraudulently joined to defeat federal diversity jurisdiction. On December 16, 2019, Plaintiff filed a Motion to Remand to State Court (DE [15] ).
II. LEGAL STANDARDS
A defendant may remove to federal court "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). Federal courts have original jurisdiction over civil actions where the amount in controversy exceeds $75,000 and the action is between citizens of different states. 28 U.S.C § 1332(a)(1). "Diversity jurisdiction requires complete diversity; every plaintiff must be diverse from every defendant." Triggs v. John Crump Toyota, Inc. , 154 F.3d 1284, 1287 (11th Cir. 1998).
When a case is removed based on diversity jurisdiction, as this case was, the case must be remanded to state court if there is not complete diversity between the parties, or one of the defendants is a citizen of the state in which the suit is filed, § 1441(b)." Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1332 (11th Cir. 2011) (citations omitted). "However, ‘[w]hen a plaintiff names a non-diverse defendant solely in order to defeat federal diversity jurisdiction, the district court must ignore the presence of the non-diverse defendant and deny any motion to remand the matter back to state court.’ " Id. (quoting Henderson v. Washington Nat. Ins. Co. , 454 F.3d 1278, 1281 (11th Cir. 2006) ). In such a case, the addition of the non-diverse defendant is considered a "fraudulent joinder."
The Eleventh Circuit has held that "[t]he determination of whether a resident defendant has been fraudulently joined must be based upon the plaintiff's pleadings at the time of removal, supplemented by any affidavits and deposition transcripts submitted by the parties. " Legg v. Wyeth , 428 F.3d 1317, 1322 (11th Cir. 2005) (emphasis in original) (quoting Pacheco de Perez v. AT & T Co. , 139 F.3d 1368, 1380 (11th Cir. 1998). The procedure used to resolve a claim of fraudulent joinder "is similar to that used for ruling on a motion for summary judgment under Fed. R. Civ. P. 56(b)." Id. at 1322-23 (quoting Crowe v. Coleman , 113 F.3d 1536, 1538 (11th Cir. 1997) ) (additional citations omitted). All questions of fact must be resolved in favor of the plaintiff. Id. at 1323 (quoting Cabalceta v. Standard Fruit Co. , 883 F.2d 1553, 1561 (11th Cir. 1989) ). However, when the defendants have submitted affidavits that are undisputed by the plaintiff, the court cannot resolve facts in the plaintiff's favor based solely on the unsupported allegations in the plaintiff's complaint. Legg , 428 F.3d at 1333.
To establish fraudulent joinder, "the removing party has the burden of proving [by clear and convincing evidence] that either: (1) there is no possibility the plaintiff can establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant into state court." Stillwell, 663 F.3d at 1332 (quoting Crowe , 113 F.3d at 1538 )). "To determine whether the case should be remanded, the district court must evaluate the factual allegations in the light most favorable to the plaintiff and must resolve any uncertainties about state substantive law in favor of the plaintiff." Crowe , 113 F.3d at 1538. "If 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 the joinder was proper and remand the case to the state court." Stillwell , 663 F.3d at 1333 (quoting Coker v. Amoco Oil Co. , 709 F.2d 1433, 1440–41 (11th Cir.1983), superseded by statute on other grounds as stated in Georgetown Manor, Inc. v. Ethan Allen, Inc. , 991 F.2d 1533 (11th Cir.1993) ).
III. ANALYSIS
Plaintiff moves to remand this case to state court, because the individual defendants – Packard, Pizarro, and Grullon – are not diverse from him. Plaintiff is a citizen of Florida, as are Pizarro and Grullon. Thus, unless it can be shown that Pizarro and Grullon were fraudulently joined, the case must be remanded. Packard, Pizarro, and Grullon each submitted affidavits (DE [18-1] [18-2] and [18-3] ) in opposition to the Motion to Remand.
Defendant Packard has submitted an affidavit attesting that he resides in Georgia and has never lived in Florida (DE [18-1] ). Thus, Packard's presence in this action does not affect diversity jurisdiction. Because he was joined in the state court action, his presence in this case is included in the fraudulent joinder analysis.
Packard was employed by Gilead as a field sales representative in South Carolina from 2001 to 2003. After that he served as the HIV Regional Director for the Southeast and Caribbean from 2003 to 2008. During his time at Gilead, Packard never distributed, sold, or promoted Viread or Atripla to healthcare professionals in Florida. He never made any statements or representations about Viread or Atripla to any healthcare professionals other than statements authorized by Gilead in the course of his employment. When he made such statements, he acted exclusively in his capacity as a Gilead employee.
Pizarro has worked for Gilead as a field sales representative ("Therapeutic Specialist") in Miami-Dade County, Florida since December 2006. Grullon held the same position in Miami-Dade County from September 2007 to April 2012, and in New Jersey from April 2012 to May 2014. Neither man ever participated in the design, research, testing, or manufacturing of Viread or Atripla. Neither man ever promoted Viread to healthcare professionals anywhere in Florida. They promoted Atripla to healthcare professionals in Miami-Dade County, but never promoted Atripla to healthcare professionals in Palm Beach County. Neither man engaged in conversations with Plaintiff, and neither man knows the identity of any of Plaintiff's physicians. Both men state that in promoting Atripla, they always acted exclusively in their capacity as Gilead employees and never made any statements about Atripla to any healthcare professional other than statements and representations authorized by Gilead.
In response, Plaintiff has submitted the affidavit of one of his lawyers, Debra D. Klingsberg, who attached the LinkedIn profiles of Charlie Packard, Cesar Pizarro, and Luis Grullon (DE [19-1] ). Packard's LinkedIn Profile stated that during his six years with Gilead he "executed a regional business plan to maximize our impact and establish Gilead as the number one company in the HIV market" and "[c]oordinated cross-functional partnerships with Marketing, Sales and Product Development and cross business functions to exceed sales expectations." Pizarro's LinkedIn profile states that from December 2006 to January 2015, he was "[r]esponsible for the business and scientific relationship with area physicians, hospitals and community health agencies focusing on the promotion for Atripla, Truvada, Complera and Stribild for the treatment of HIV." Grullon's LinkedIn profile states that he worked for Gilead from September 2007 to May 2014 and was "[r]esponsible for selling the antiretroviral portfolio Atripla & Truvada throughout Miami" and "[l]ead region in Atripla growth 120.03% and ranked top 5 nationally in 2012."
The Court expresses no opinion on the admissibility of the LinkedIn account profiles, but accepts them for purposes of the present motion only.
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1. Strict Liability
Count II of Plaintiff's Complaint alleges strict liability – failure to warn against Gilead and the individual Defendants. Defendants argue that Plaintiff cannot establish a strict liability failure to warn claim against any of the individual Defendants and, therefore, these Defendants were fraudulently joined to defeat diversity jurisdiction.
Florida courts have adopted strict liability as stated by the A.L.I. Restatement (Second) of Torts § 402(A) (1965). West v. Caterpillar Tractor Co. , 336 So.2d 80, 87 (Fla. 1976). "The underlying basis for the doctrine of strict liability is that those entities within a product's distributive chain ‘who profit from the sale or distribution of [the product] to the public, rather than an innocent person injured by it, should bear the financial burden of even an undetectable product defect.’ " Samuel Friedland Family Enterprises v. Amoroso , 630 So. 2d 1067, 1068 (Fla. 1994) (quoting N. Miami General Hosp., Inc. v. Goldberg , 520 So.2d 650, 651 (Fla. 3d DCA 1988) ). "Those entities are in a better position to ensure the safety of the products they market, to insure against defects in those products, and to spread the cost of any injuries resulting from a defect." Id.
The Florida courts "have limited the doctrine's application to manufacturers and others in the distributive chain, including retailers, wholesalers, and distributors." Wilssens v. Medtronic, Inc. , 2009 WL 9151079, at *7 (S.D. Fla. Jul. 23, 2009). Plaintiff, however, argues that strict liability should be extended to the manufacturer's (Gilead's) sales employees because they are within the "distributive chain" and involved in the marketing of the medications. The Court disagrees. The individual defendants are not retailers, wholesalers, or distributors of Atripla or Viread, they had no involvement in the testing, design, or research of the medications, and are not in a position to ensure the medications' safety, or to spread the cost of an injury resulting from their use. As such, the doctrine of strict liability does not apply to the individual defendants. See Wilssens , 2009 WL 9151079, at *8 (finding no reasonable basis to conclude that Florida courts would extend a strict liability claim to an individual sales representative); Clay v. Wyeth , 2004 WL 7330338, at *10 (M.D. Fla. Aug. 17, 2004) (same).
2. Negligence
Count III of Plaintiff's Complaint alleges negligence against Gilead and the individual Defendants for failure to warn Plaintiff's doctors about the risks associated with the use of Viread and Atripla. Defendants argue Plaintiff has no reasonable basis for alleging a negligence claim against any of the individual Defendants and, therefore, these Defendants were fraudulently joined to defeat diversity jurisdiction.
To state a claim for negligence under Florida law, Plaintiff must establish that "(1) the defendant had a duty to protect the plaintiff; (2) the defendant breached that duty; and (3) the defendant's breach was the proximate cause of the plaintiff's injuries and resulting damages." Clay , 2004 WL 7330338, at *8. For purposes of a fraudulent joinder analysis, the court must consider the affidavits in the record and, "when a defendant's affidavit is undisputed by a plaintiff, the court cannot then resolve the facts in the plaintiff's favor based solely on the unsupported allegations in the complaint." Buckles v. Coombs , 2017 WL 38801, at *3 (M.D. Fla. Jan. 4, 2017) (citing Legg , 428 F.3d at 1323 ).
In this case, the individual Defendants have submitted affidavits that are uncontroverted. The affidavits establish that (1) Packard never distributed, sold, or promoted Viread or Atripla in Florida; (2) Pizarro and Grullon never distributed, sold or promoted Viread; (3) Pizarro and Grullon never promoted Viread or Atripla in Palm Beach County, Florida, where Plaintiff lives; (4) none of the individual Defendants know the identity of Plaintiff's physicians; and (5) none of the individual Defendants had special knowledge of the alleged risks associated with Viread and Atripla but, rather, all relied upon information provided by Gilead in the course of their employment, and had no independent knowledge or medical training.
Plaintiff has submitted no evidence that the individual Defendants knew or should have known of the risks caused by their promotion of Gilead's products or that Defendants had any contact with Plaintiff's doctors. As such, the Court finds that Defendants have established by clear and convincing evidence that there is no possibility that Plaintiff can establish a negligence claim against the individual Defendants. See Legg , 428 F.3d at 1322, n. 4 (finding fraudulent joinder where plaintiff failed to show defendant had ever promoted drug to plaintiff's physician); Buckles , 2017 WL 38801, at *4 (finding fraudulent joinder where uncontroverted evidence shows no possibility of establishing a negligence claim against sales representative); Wilssens , 2009 WL 9151079, at *6-7 (finding fraudulent joinder where record contained no evidence to support possibility of negligence claim against representative who had no medical training or role in developing product); Sobkowski v. Wyeth, Inc. , 2004 WL 3569704, at *5 (M.D. Fla. May 17, 2004) (finding fraudulent joinder where evidence did not show sales representatives possessed any independent knowledge of alleged dangers) (report and recommendation adopted as modified, 2004 WL 3581799 (M.D. Fla. Jun. 24, 2004).
IV. CONCLUSION
In view of the foregoing, the Court finds there is no reasonable basis in the record for predicting that Florida law might impose liability under either strict liability or negligence against the individual Defendants in this case. The Court concludes that for purposes of diversity jurisdiction, the sales representatives – Packard, Pizarro, and Grullon – should be considered fraudulently joined. Accordingly, it is hereby
ORDERED AND ADJUDGED that Plaintiff's Motion for Remand (DE [15] ) is DENIED. Defendants Charles Packard, Cesar Pizarro, and Luis Grullon are DISMISSED from this action.
DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 2nd day of March 2019.