Opinion
Civil Action No: 02-473, Section: "J" (1)
April 9, 2002
ORDER AND REASONS
Before the Court is plaintiff's Motion to Remand (Rec. Doc. 8). Defendants Purdue Pharmna L. P., The Purdue Frederick Company, and Purdue Pharma, Inc. (collectively, "Purdue") and Abbott Laboratories, Inc. ("Abbott") oppose the motion. Plaintiff's motion, set for hearing on Wednesday, April 10, 2002, is before the Court on briefs without oral argument. For the following reasons, the Court finds that plaintiff's motion should be granted, and this matter should be remanded to state court.
BACKGROUND
Plaintiff filed a petition in Orleans Parish, Louisiana, on January 11, 2002, alleging that non-diverse defendant Dr. David Jarrott negligently prescribed OxyContin to her, while in the course and scope of his employment with non-diverse defendant Jarrott, A professional L.L.C., D.M. Plaintiff also names as non-diverse defendant pharmacies, Tyler Drugs, Inc. d/b/a Downtown Drugs and Medicine Shoppe Pharmacy, asserting claims of negligence with respect to the filling of plaintiff's OxyContin prescriptions.
Against the remaining drug company defendants, Purdue and Abbott Laboratories (alleged manufacturers and distributors of OxyContin) plaintiff alleges that their products are defective because they are unreasonably dangerous and are marketed without adequate warnings. As a result, plaintiff alleges that the pharmaceutical defendants are liable under theories of strict liability, products liability, failure to adequately warn, negligence, redhibition, fraudulent misrepresentation, and breach of implied and express warranties.
On June 22, 2001, Plaintiff's counsel sent a letter to the Louisiana Patients Compensation Fund and the Commissioner of Administration via certified mail, informing them of Plaintiff's negligence claim, seeking information on whether Dr. Jarrott was a member of the Fund, and requesting the formation of a medical review panel. Rec. Doc. 8, Exhs. B C.
On February 21, 2002, Purdue and Abbott removed the action to this Court, alleging that the non-diverse defendants had been fraudulently joined. Plaintiff subsequently filed the instant motion to remand.
DISCUSSION
Defendants contend that Dr. Jarrott and his employer were fraudulently joined in order to prevent removal, because (1) prescription bars the plaintiff's claims against these defendants; and (2) the plaintiff has not yet commenced any action against the non-diverse defendants as a matter of law, so the court should ignore their citizenship.
This Court recently addressed these precise arguments in the case ofJoseph Catalano, Jr. v. Dr. Jacqueline Cleggett-Lucas, et al., No. Civ.A. 02-330 (E.D.La. March 28, 2002). As to the first argument, that prescription bars Plaintiff's claims against Dr. Jarrott, this Court explained in the Catalano case that this argument is insufficient to prevent remand under these facts:
Under the law of Louisiana, the prescriptive period for medical malpractice claims runs from the date of the plaintiff's discovery of his injury or damages. By its nature, this is often a fact-intensive inquiry; that is especially true in this case, where part of the damages plaintiff claims include his alleged addiction to OxyContin, which is unlikely to hate a clear-cut onset date. And, while it is well-settled that the Court may employ a summary judgment type procedure to pierce the pleadings when considering questions of fraudulent joinder, the summary judgment procedure is insufficient to resolve the issue of prescription when the question cannot be resolved on the face of the pleadings or other undisputed facts, but instead requires a fact-based inquiry. . . .
Because the issue of prescription will in this case involve factual questions not amenable to resolution by summary judgment, the question must be reserved for the fact-finder. Thus, defendants' affirmative defense of prescription does not preclude the remand of this case.Catalano, No. Civ.A. 02-330, at 6-7 (citations omitted).
With respect to Defendants' second argument, that Dr. Jarrott's and his employer's citizenship should be ignored, because, at the time of removal, Plaintiff had not commenced a state court action against those defendants because no request was filed before a medical review panel, this Court again adopts the reasoning contained in the applicable portions of Judge Engelhardt's opinion discussing this exact issue in another recently-decided case, Ohler v. Purdue Pharma, L.P., No. Civ.A. 01-3061, 2002 WL 88945, *4-*7 (E.D.La., Jan. 22, 2002).
In Ohler, the defendants made the same argument that they do here — that the physician was improperly and fraudulently joined because at the time of removal, a state court action against her would have been premature, and thus that commencement of an action by filing a lawsuit was not possible. Relying on the Fifth Circuit's opinion in Badon v. R J R Nabisco, Inc., 224 F.3d 382 (5th Cir. 2000) and other precedents, Judge Engelhardt found that the issue of whether or not a claim was "commenced" in state court was not relevant to the determination of fraudulent joinder allegations against the plaintiff. In so holding, the Court noted the "long unbroken line of cases in the Eastern District of Louisiana addressing the issue . . . whether a non-diverse physician defendant is `fraudulently joined' when suit is filed in state court prematurely (before completion of medical review panel proceedings), and recognizing that a premature petition under Louisiana's Medical Malpractice Act does not preclude a finding that the petition states a cause of action against medical defendants." 2002 WL 88945 at *5, citing Erdey v. American Honda Co., Inc., 96 F.R.D. 593, 596 (M.D.La. 1983). Put another way, the test for fraudulent joinder asks whether a plaintiff has stated a potentially viable claim against an in-state defendant, and courts have held that "(p]rematurity does not trump viability." Doe v. Cutter, 774 F. Supp. 1001, 1004 (E.D. La. 1991). Applying the rationale of Ohler to the instant matter, the Court concludes that the alleged prematurity of the plaintiff's medical malpractice claims against the non-diverse defendants does not dictate a finding that Dr. Jarrott and his employer were fraudulently joined.
The instant case, as in Catalano, is distinguishable from Ohler in that Plaintiff herein did file a request for review with the Louisiana Patients Compensation Fund and the Commissioner of Administration by certified letter sent on June 22, 2001. However, as in Ohler, the administrative review process has not been exhausted.
The Fifth Circuit has held unequivocally that "[i]f the plaintiff has any possibility of recovery under state law against the party whose joinder is questioned, then the joinder is not fraudulent in fact or law." Burden v. Dynamics Corp., 60 F.3d 213, 216 (5th Cir. 1995) (emphasis added). Further, it is not the role of the district court presented with a fraudulent joinder claim to "determine whether the plaintiff will actually or even probably prevail on the merits of the claim;" rather, the Court "look[s] only for a possibility that the plaintiff might do so." Id. In this case, the Court's review of the record, the memoranda of counsel, and applicable law, do not convince it that there exists no possibility of recovery against Dr. Jarrott or his employer under Louisiana law, and thus the Court finds that those non-diverse defendants were not fraudulently joined. Accordingly, pursuant to 28 U.S.C. § 1447(c),
Because the Court finds that two of the non-diverse defendants were not fraudulently joined, it need not reach the question of whether any of the other non-diverse defendants were fraudulently joined.
IT IS ORDERED that Plaintiff's Motion to Remand should be GRANTED and this matter is hereby REMANDED to the Civil District Court for the Parish of Orleans.