Opinion
CASE NO. C02-0168C
April 22, 2002
ORDER
This action is before the Court on Plaintiffs' Motion to Remand (Dkt. No. 15) pursuant to 28 U.S.C. § 1447(c). After considering the submissions of the parties, this Court concludes that it does not have subject matter jurisdiction under either 28 U.S.C. § 1331 or 28 U.S.C. § 1333, and therefore GRANTS Plaintiffs' Motion to Remand.
This is a class action on behalf of American children who received vaccines containing "thimerosal," a biocide that contains ethyl mercury. Some multi-dose vaccines contain thimerosal to prevent the growth of bacteria after the vial's seal has been punctured. Plaintiffs contend that the vaccines exposed children to toxic doses of mercury, and in some cases caused neurological damage and neurodevelopmental problems such as autism. According to Plaintiffs, the various Defendants were involved in manufacturing thimerosal-containing vaccines or thimerosal, or administering such vaccines to children without warning of the potential dangers of the product or advising patients of non- thimerosal alternatives.
Unless Congress provides otherwise, removal is proper for "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). There is a strong presumption against removal jurisdiction, and Defendants bear the burden of proving that removal is proper. See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Defendants claim that removal is proper because the Court has both federal question and diversity jurisdiction. For the purposes of this Motion, the Court will consider Plaintiffs' first Complaint, because the propriety of removal must be evaluated by the pleadings as of the time of the petition for removal. Pullman Co. v. Jenkins, 305 U.S. 534, 537-38 (1939).
I. FEDERAL QUESTION JURISDICTION
Federal question jurisdiction exists for claims "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. The well-pleaded complaint rule states that for federal question jurisdiction, Plaintiff's Complaint must present a federal question on its face. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987); see also Louisville N.R. Co. v. Mottley, 211 U.S. 149, 152 (1908). The anticipation of a federal defense, including the defense of preemption, is not in itself enough to create federal jurisdiction, even if the complaint anticipates the defense and even if all parties concede that the federal defense is the only real issue. Caterpillar, 482 U.S. at 393. The "artfully- pleaded complaint' rule states that "a plaintiff may not defeat removal by omitting to plead necessary federal questions." Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 22 (1983). However, "the mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction." Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 813 (1986). Instead, "Congress has given the lower courts jurisdiction to hear... by removal from a state court, only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal law." Id. at 807, n. 2, quoting Franchise Tax Bd., 463 U.S. at 28; see also Chicago v. International College of Surgeons, 522 U.S. 156, 164 (1997) (emphasis added).
An additional corollary to the well-pleaded complaint rule is the "complete preemption" doctrine. If the preemptive effect of a statute is so extraordinary as to preempt an entire area of state law, then a claim based on the preempted state law is considered to arise under federal law, and removal is allowable. Caterpillar, 482 U.S. at 393. Only § 502(a) of the Employment Retirement and Insurance Security Act ("ERISA"); § 301 of the Labor Management Relations Act (LMRA); and specific types of Indian land grant rights have been interpreted to completely preempt state law for the purposes of federal question jurisdiction. See Caterpillar, 482 U.S. at 393; Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 (1987); Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666-67 (1974).
Defendants argue that the face of Plaintiffs' Complaint requires resolution of a substantial federal question concerning the applicability of the National Vaccine Injury Compensation Act ("Vaccine Act"), 42 U.S.C. § 300aa et seq., to Plaintiffs' claim, and the Vaccine Act should be the fourth federal law to completely preempt state court jurisdiction.
A. The National Vaccine Injury Compensation Act
The Vaccine Act establishes a no-fault compensation system for persons injured by vaccines. The Act provides that people who have suffered "vaccine-related injury" should commence a suit in the United States Claims Court. 42 U.S.C. § 300aa-11(a)(1). The Act provides that "No person may bring a civil action for damages in an amount greater than $1,000 or in an unspecified amount against a vaccine administrator or manufacturer in a State or Federal court for damages arising from a vaccine-related injury.., unless a petition has been filed, in accordance with [the Vaccine Act's procedure in] section 2116, for compensation under the [Vaccine Compensation] Program for such injury or death and. . . the United States Claims Court has issued a judgment." 42 U.S.C. § 300aa-11(a)(2)(A). In essence, the Vaccine Compensation Procedure provides that Plaintiffs must file a petition in the U.S. Claims Court ("Vaccine Court") and reject the resultant judgment before pursuing a claim in any other court.
The parties disagree as to whether the injuries alleged in Plaintiffs' Complaint constitute "vaccine-related" injuries for the purpose of the Vaccine Act. Plaintiffs cite the Vaccine Act's definitions section, which defines "vaccine-related injury or death" as "an illness, injury, condition, or death associated with one or more of the vaccines set forth in the Vaccine Injury Table, except that the term does not include an illness, injury, condition, or death associated with an adulterant or contaminant intentionally added to such a vaccine." 42 U.S.C. § 300aa-33(5). According to Merriam-Webster's Medical Desk Dictionary, adulterate means "to corrupt, debase, or make impure by the addition of a foreign or inferior substance [and especially] to prepare for sale by replacing more valuable with less valuable or inert ingredients" and contaminate means "to soil, stain, or infect by contact or association." Both sides argue that the plain language of the statute resolves the issue. Defendants rely primarily on the Secretary of Health and Human Services's "Statement of Interest" filed in King v. Aventis Pasteur, No. CV 01-1305-AS (D. Ore. filed Mar. 5, 2002) (Arguing that injuries allegedly due to thimerosal are covered by the Vaccine Actt whereas Plaintiffs primarily rely on the Findings of Magistrate Judge Ashmanskas in the same case (recommending a remand to state court) and Haggerty it Wyeth Ayerst Pharm., 79 F. Supp.2d 182 (E.D.N.Y. 2000) (remanding case because the Vaccine Act does not confer federal question jurisdiction over state law claims).
If, as Plaintiffs suggest, thimerosal is an adulterant or contaminant added to the vaccine, then their state law claims are not within the scope of the Vaccine Act. If Plaintiffs' interpretation of the Act is correct, they may continue with the claim in state or federal court without first pursuing the Vaccine Act's procedure in the United States Court of Claims. If on the other hand Defendants' interpretation of the Vaccine Act is correct, then the claim must be dismissed, and Plaintiffs may choose to pursue a claim through the Vaccine Compensation Program.
Defendants' argument is essentially that Plaintiffs' state law claims — including negligence, failure to warn, common law fraud, strict product liability, unjust enrichment and medical negligence — are preempted by the Vaccine Act. However, this assertion does not merit removal because "[f]ederal preemption is ordinarily a federal defense to the plaintiffs suit. As a defense, it does not appear on the face of a well-pleaded complaint, and, therefore, does not authorize removal to federal court" Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 64 (1987); see also Caterpillar, 482 U.S. at 393. Defendants assert that the applicability of the Vaccine Act to Plaintiffs' claims is not just a federal defense. However, the important question presented is whether Plaintiffs' claims are inconsistent with the federal Vaccine Act; this is essentially a question of preemption. Whenever preemption of a state law by a federal act is disputed, important federal interests are likely to be implicated. Nevertheless, the Supreme Court has stated that the defense of federal preemption is not sufficient to invoke federal question jurisdiction, even if it is the only issue in the case. See Id. While the Vaccine Act may or may not have the eventual effect of preempting Plaintiffs' state law claims, the possibility of a preemption defense does not confer federal jurisdiction in this case.
Defendants also argue that the Vaccine Act completely preempts state court jurisdiction. Even assuming arguendo that the Vaccine Act has such extraordinary force that it converts any state law claim into a federal claim for the purposes of the well-pleaded complaint rule, this Court declines to extend that theory to this case. Even in cases involving ERISA or the LMRA, complete preemption does not apply to state law claims that arguably fall outside the preemptive scope of the statute. Caterpillar, 482 U.S. at 396. Because it is unclear whether Plaintiffs' state law claims fall within the scope of the Vaccine Act. the Act cannot he said to completely preempt state jurisdiction over this case.
II. DIVERSITY JURISDICTION
Defendants contend that removal is proper because the Court should exercise diversity jurisdiction. 28 U.S.C. § 1332(a)(1). In a class action, the Court will look only at the citizenship of the named class representatives to ascertain diversity. Snyder v. Harris, 394 U.S. 332, 340 (1969). Plaintiffs named in the original Complaint are Washington State residents. All of the named vaccine manufacturer and thimerosal manufacturer Defendants are headquartered and have their principal place of business outside of Washington State. Plaintiffs also include several "John Doe" Defendants. The rules of Washington Superior Court allow Plaintiffs to designate Defendants with fictitious names when the true names are unknown, and Plaintiffs may amend the pleading when the John Doe Defendants' real names becomes known. Wash. CR 10 (2002). However, for the purposes of federal diversity jurisdiction, the citizenship of Defendants listed with fictitious names is disregarded. 28 U.S.C. § 1441(a).
Plaintiffs' original Complaint also names Evergreen Pediatric Clinic ("Evergreen"), a Washington Corporation, as class representative for a defendant class of health care providers ("Medical Practitioner Defendants"). Thus, for removal to be proper based on diversity jurisdiction, Defendants have the burden of proving that Evergreen does not destroy diversity. Evergreen is conceded to be non- diverse, yet Defendants contend that their citizenship should be disregarded due to "fraudulent joinder." See Wilson v. Republic Iron Steel Co., 257 U.S. 92, 97 (1921). Fraudulent joinder allows the Court to disregard the citizenship of a non-diverse Defendant if Plaintiffs fail to state a claim against that Defendant "and failure is obvious according to settled law." Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1068 (9th Cir. 2001). Thus, in evaluating fraudulent joinder, the Court does not weigh the merits of Plaintiffs' claims beyond determining whether the claims are arguable under state law. See Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998).
Plaintiffs' amended Complaint also names Virginia Mason Health System and Virginia Mason Medical Center as class representatives of the defendant class. However, to ascertain jurisdiction, the Court will only consider Plaintiffs' original Complaint.
Although the caption of the original Complaint fails to specify that Evergreen is a representative of a defendant class, the text of the Complaint clarifies that point, and the Amended Complaint corrects the error. (Complaint at 12).
Defendants assert alternative reasons why the claims against the Medical Practitioner Defendants fail as a matter of law. First, Defendants assert that Plaintiffs' Complaint is insufficient to state a claim against them under settled principles of Washington law. Second, Defendants argue that the Medical Practitioner Defendants are fraudulently joined because the Vaccine Act bars Plaintiffs from suing vaccines administrators in state or federal court until a petition has been filed in the Vaccine Court pursuant to that Act, and no petition has been filed.
A. Washington Law Claims Against Medical Practitioner Defendant Class
The elements of a claim for health care related injuries in Washington are governed by chapter 7.70 of the Revised Code of Washington. Berger v. Sonneland, 144 Wn.2d 91, 106, 26 P.3d 257, 263-64 (Wash. 2001). That chapter defines "health care provider" to include, inter alia, doctors, nurses, hospitals and clinics. RCW § 7.70.020. The statute also sets forth the four traditional elements of negligence: duty, breach, proximate cause, and damage or injury. RCW § 7.70.040. Plaintiffs must also show that Medical Practitioner Defendants failed to meet the accepted standard of care, that the Medical Practitioner Defendants promised the patient that the injury suffered would not occur, or that Plaintiffs were injured as a result of health care that they did not consent to. RCW § 7.70.030.
Defendants' Opposition to Plaintiffs' Motion to Dismiss and Remand argues that Plaintiffs fail to state a claim because they fail to show "that the Medical Practitioner Defendants rendered medical services to these named Plaintiffs, and that the alleged negligence or failure to warn by the Medical Practitioner Defendants caused Plaintiffs' injuries." (Def.'s Opp. at 7). However, Defendant ignores the fact that Plaintiffs' Complaint designates a plaintiff class composed of "more than 30 million children in the United States" (Complaint at 3), against, inter alia, a Defendant class composed of "thousands of health care providers, general practitioners, family doctors, pediatricians and other medical doctors." While Medical Practitioner Defendants might later dispute this characterization, class certification is not the issue before the Court today. What is important for this Court is that Plaintiffs' Complaint states a claim on its face that is not obviously at odds with settled state law. This is enough to establish that the Medical Practitioner Defendants are not fraudulently joined.
B. Preemption by the Vaccine Act
Finally, Defendants contend that Plaintiffs' Complaint fails to state a claim against the Medical Practitioner Defendants because the Vaccine Act preempts Plaintiffs' claims. Defendants devote over half of their Opposition to this subject, skillfully arguing that Plaintiffs' claims are covered by the Vaccine Act, because they allege "vaccine related" injury, and not injuries due to an "adulterant or contaminant" that is not covered by the Act. In contrast, Plaintiffs assert that thimerosal is an adulterant or contaminant. The Court need not resolve the debate at this time, because it is plain that the statutory language is ambiguous. Defendants' burden is to prove that the allegedly fraudulently joined parties cannot be liable under any theory, and that the claim against them obviously fails according to settled law. See Morris, 236 F.3d at 1068; Ritchey, 139 F.3d at 1318; McCabe v General Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987). The meaning of the phrase "adulterant or contaminant" in the Vaccine Act is unsettled. Given the conspicuous ambiguity in the statute and the lack of decisive authority or legislative history on the subject, Plaintiffs' claims against the Medical Practitioner Defendants are at least arguably viable, and thus those Defendants are not fraudulently joined. Defendants have failed to prove that the Court has diversity jurisdiction.
III. CONCLUSION
Having considered the parties' submissions and concluding that it lacks subject matter jurisdiction, the Court accordingly GRANTS Plaintiff's Motion to Remand. This action is hereby DISMISSED without prejudice and REMANDED to the state court from which it originated.
The Clerk is directed to enter judgment accordingly.