Opinion
MDL DOCKET NO. 1203, CIVIL ACTION NO. 04-20739.
November 9, 2004
MEMORANDUM AND PRETRIAL ORDER NO.
Before the court is the motion of plaintiffs to remand to the Circuit Court of Okaloosa County, Florida.
Plaintiffs, citizens of Florida, have sued Wyeth, the manufacturer of Pondimin and Redux, a related company, Wyeth Pharmaceuticals, as well as Eckerd Corporation ("Eckerd"), a retail pharmacy chain that allegedly marketed, sold, promoted, and/or distributed Wyeth's diet drugs to plaintiffs. Plaintiffs have also named as defendants Wyeth's current and former sales representatives Richard Coe ("Coe") and Debra Berry ("Berry"). Wyeth and its related company are of diverse citizenship while Eckerd, Coe, and Berry are not. Plaintiff Peggy Tucker asserts claims for negligence, strict liability (defective design and failure to warn), fraudulent misrepresentation, fraudulent concealment, and civil conspiracy. Her husband, Terry Tucker, is a derivative claimant suing for loss of consortium. No federal claim for relief is alleged. The pending motion is before the undersigned as the transferee judge in Multi-District Litigation ("MDL") 1203, the mass tort litigation involving Pondimin and/or Redux.
Plaintiff Peggy Tucker has exercised her right of intermediate or back-end opt-out under the Nationwide Class Action Settlement Agreement ("Settlement Agreement") in Brown v. American Home Products Corporation, CIV.A. No. 99-20593 (E.D. Pa. Aug. 28, 2000) (Pretrial Order ("PTO") No. 1415), which encompassed persons who ingested Wyeth's diet drugs Pondimin and Redux. See e.g., Settlement Agreement at § IV.(A), (B), and (D)(4). Under the Settlement Agreement, those who have exercised an intermediate or back-end opt-out may sue Wyeth for compensatory damages in the tort system rather than obtain benefits from the AHP Settlement Trust.
Plaintiffs originally filed their complaint in the Circuit Court of Okaloosa County, Florida in November, 2003, over six years after the diet drugs were withdrawn from the market in September, 1997. Wyeth timely removed the case to the United States District Court for the Northern District of Florida, asserting that plaintiffs fraudulently joined defendants Eckerd, Coe and Berry. Thereafter, plaintiffs moved to remand this action under 28 U.S.C. § 1447(c). The Florida federal court deferred ruling on plaintiffs' motion, and the case was then transferred to this court as part of MDL 1203.
Wyeth contends that remand is inappropriate because the non-diverse sales representatives and Eckerd are fraudulently joined. This court addressed similar issues in Memorandum and PTO No. 3856 in Bankston, et al. v. Wyeth, et al., CIV.A. No. 03-20765 (E.D. Pa. Aug. 12, 2004), which is also part of the nationwide diet drug litigation. In Bankston, we laid out in detail the standards for removal based on diversity jurisdiction and fraudulent joinder. See id. Because we examined the same legal issues as they applied to nearly identical facts inBankston, we need not revisit them here.
As in Bankston, plaintiffs argue that complete diversity does not exist as required by 28 U.S.C. § 1332. Similarly, plaintiffs here deny Wyeth's allegations of fraudulent joinder of the sales representatives and Eckerd, the non-diverse defendants. For the same reasons set forth in Bankston, we find that plaintiffs have fraudulently joined Eckerd, Berry, and Coe in an effort to defeat federal diversity jurisdiction.
We will deny plaintiffs' motion to remand this action to the Circuit Court of Okaloosa County, Florida and will dismiss the complaint as to defendants Eckerd, Berry and Coe.
PRETRIAL ORDER NO.
AND NOW, this day of November, 2004, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:(1) the motion of plaintiffs to remand is DENIED; and
(2) all defendants in the above-captioned action except Wyeth and Wyeth Pharmaceuticals are DISMISSED.