Opinion
MDL Docket No. 1203, Civil Action No. 03-20587, 03-20385, 03-20379, 03-20590.
May 14, 2004
MEMORANDUM AND PRETRIAL ORDER NO.
Before the court are the motions of numerous class members in four separate actions to remand to the appropriate Mississippi state courts their claims against defendants: (1) Wyeth, (2) in-state physicians who have prescribed Wyeth's diet drugs Pondimin and/or Redux for plaintiffs; (3) Indevus Pharmaceuticals, a manufacturer of dexfenfluramine; (4) two named sales representative defendants; and (5) John Does 1-25, who appear to be anonymous Mississippi resident sales representatives. The state court actions were captioned Margie Broom, et al. v. Marcus Hogan, et al. (Miss. Cir. Ct. Coahoma County, filed Dec. 27, 2002); Cynthia Dillon, et al. v. Dennis Sims, M.D., et al. (Miss. Cir. Ct. Pike County, filed Dec. 30, 2002); Mona Allen-Kelly, et al. v. Calvin Masterson, M.D., et al. (Miss. Cir. Ct. Lincoln County, filed Dec. 30, 2002); andLana Smith, et al. v. Jasper D. Moore, M.D., et al. (Miss. Cir. Ct. Bolivar County, filed Dec. 30, 2002).
Wyeth was previously known as American Home Products Corporation ("AHP").
Plaintiffs in these actions, with the exception of plaintiffs Ruby Cooley, James Fuller and Mary Franks, have exercised their right of intermediate or back-end opt-out under the Nationwide Class Action Settlement Agreement ("Settlement Agreement") inBrown v. American Home Products Corporation, CIV. A. No. 99-20593 (E.D. Pa. Aug. 28, 2000) ("Pretrial Order ("PTO") No. 1415"). The Settlement Agreement 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.
Wyeth alleges that plaintiffs Cooley, Fuller and Franks exercised the Accelerated Implementation Option, which if true would preclude them from asserting an Intermediate or Back-End Opt-Out right. We need not address this issue for the reasons articulated in this Memorandum.
Plaintiffs filed their complaints in the Circuit Courts of Coahoma County, Pike County, Lincoln County and Bolivar County, Mississippi, respectively, in December, 2002. Wyeth timely removed these actions, asserting that plaintiffs fraudulently joined the in-state physician and in-state sales representative defendants in an attempt to defeat federal diversity. Thereafter, plaintiffs moved to remand these actions under 28 U.S.C. § 1447(c). The Mississippi federal courts deferred ruling on plaintiffs' motions, and the cases were then transferred to this court as part of MDL 1203, the mass tort litigation involving the diet drug known as fen-phen. No federal claims for relief are alleged.
I.
In brief summary, plaintiffs, all of whom are citizens of Mississippi, filed suits for injuries sustained as a result of their use of the diet drugs known as Pondimin and/or Redux. The defendant Wyeth, the manufacturer of Pondimin and Redux, and Indevus Pharmaceuticals are parties of diverse citizenship from the plaintiffs. The defendant physicians who prescribed Pondimin and/or Redux to plaintiffs in these matters and the defendant sales representatives who allegedly promoted Pondimin and Redux are purportedly citizens of Mississippi.
Plaintiffs maintain that remand is appropriate because complete diversity does not exist as required under 28 U.S.C. § 1332(a). Wyeth counters that the non-diverse physicians in these matters were fraudulently joined because the applicable two-year statute of limitations bars plaintiffs' claims against these non-diverse defendants. See MISS. CODE ANN. § 15-1-36 (West 2003). As to the claims against the in-state sales representative defendants, Wyeth asserts that plaintiffs' strict liability and negligence claims fail because sales representatives are not actually "sellers" of goods, but merely agents of Wyeth. In addition, Wyeth argues that pursuant to the learned intermediary doctrine, the sales representatives were under no duty to warn plaintiffs about the risks associated with the ingestion of diet drugs. Thus, Wyeth maintains, plaintiffs' claims against these non-diverse defendants should be disregarded for purposes of determining diversity of citizenship of the parties. Plaintiffs respond that the statute of limitations has not expired against the in-state physicians because they discovered their injuries less than two years prior to filing their claims. With regard to the claims against the in-state sales representative defendants, plaintiffs assert that the sales representative defendants are proper parties in these matters because they acted as agents of Wyeth and distributed diet drugs with knowledge of their dangerous propensities.
The statute of limitations is not an issue in plaintiffs' claims against Wyeth, which has waived its right to assert the statute of limitations defense in return for the plaintiffs giving up their right to sue Wyeth for "punitive, exemplary, or multiple damages." Settlement Agreement § IV.D.3.c; see PTO No. 2625 and PTO No. 2680.
II.
This court addressed many of the same issues presented by plaintiffs' remand motions in PTO No. 3281 in French, et al. v. Wyeth, et al., CIV. A. No. 03-20353 (E.D. Pa. Feb. 18, 2004), which is also part of the nationwide diet drug litigation. InFrench, we laid out in detail the standards for removal based on diversity jurisdiction and fraudulent joinder. See PTO No. 3281 at 2-4. Because we examined the same legal issues as they applied to nearly identical facts in French, we need not revisit them here.III.
With regard to the physician defendants in these actions, the key issue is whether they have been fraudulently joined solely for the purpose of destroying diversity of citizenship and preventing removal. For the same reasons set forth in French, we find "no reasonable basis in fact or colorable ground" supporting plaintiffs' claims against the instate physicians.Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990).
As discussed in greater detail in French, plaintiffs' claims against the in-state physicians are time barred because their complaints were clearly filed outside the two year statute of limitations. See MISS. CODE. ANN. § 15-1-36. In short, the statute began running, "when the plaintiff[s] should have reasonably known of some negligent conduct, even if the plaintiff[s did] not know with absolute certainty that the conduct was legally negligent." Sarris v. Smith, 782 So.2d 721, 725 (Miss. 2001). As we found in French, the publicity surrounding the withdrawal of the diet drugs put plaintiffs on inquiry notice of their claims in September, 1997 or, at the very latest by March, 2000, at the height of Wyeth's extensive media campaign.
In light of the massive publicity concerning the health risks associated with the use of diet drugs and the determination by this court after a full hearing that diet drug injuries are not latent, we find that plaintiffs in the exercise of reasonable diligence should have discovered their injuries at the very latest by March, 2000. Thus, they needed to have filed their complaints by March, 2002. Because they did not do so until December, 2002, their claims against the in-state physicians are clearly time barred.
IV.
Plaintiffs in these cases also appear to argue that the statue of limitations is tolled against the physician defendants because the physicians have fraudulently concealed facts which would alert plaintiffs about the dangers associated with the use of diet drugs. We previously addressed this same issue in Cockrell, et al. v. Wyeth, et al. (E.D. Pa. Mar. 9, 2004). Where fraud or concealment of tortious conduct is alleged, Mississippi law specifies that "the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence should have been, first known or discovered." MISS. CODE ANN. § 15-1-36(2)(b).
As in Cockrell, we find that plaintiffs' complaints are devoid of facts, allegations, or information suggesting that an affirmative act of concealment was perpetrated by the physician defendants to conceal the plaintiffs alleged injuries. Thus, there is "no reasonable basis in fact or colorable ground" on which plaintiffs can invoke the fraudulent concealment saving provision to toll the statute of limitations because plaintiffs have failed to set forth the conduct that constitutes fraudulent concealment under Mississippi law. Boyer, 913 F.2d at 111;see also Reich v. Jesco, Inc., 526 So.2d 550, 552 (Miss. 1998) (citations omitted).
Plaintiffs assert that this court should remand their respective actions because their fraud claims are governed by the three year statute of limitations codified in MISS. CODE ANN. § 15-1-49. We disagree. This statute provides a three year limitations period for "[a]ll actions for which no other period of limitation is prescribed." MISS. CODE ANN. § 15-1-49. As noted above, plaintiffs have failed to establish a cause of action in fraud. Plaintiffs' claims against the physicians are clearly governed by the two-year statute of limitations codified in MISS. CODE ANN. § 15-1-36.
Accordingly, we find that Wyeth has met its heavy burden of showing that the in-state physician defendants are fraudulently joined.
V.
Plaintiffs also assert that the statute of limitations defense does not apply to the physician defendants under the Settlement Agreement. We addressed this issue in PTO No. 3391, in Bobbie Amiker, et al. v. Wyeth, et al., CIV. A. No. 03-20343 (E.D. Pa. April 2, 2004). For the same reasons stated inAmiker, the in-state physician defendants retain the benefit of the statute of limitations defense pursuant to § IV.D.3.c of the nationwide Settlement Agreement. See PTO No. 3391, at 7-9.
VI.
Plaintiffs also bring claims in negligence and strict liability against Wyeth's in-state sales representatives Forest Bratley and Susan Bodney. Wyeth argues that these defendants are fraudulently joined. We note first that there is no indication in plaintiffs' complaints that any of the plaintiffs, or any of the plaintiffs' doctors, received any drugs from these sales representative defendants. Further, any allegations of misrepresentation or fraud fall short of what is required under both federal and Mississippi law. See Fed.R.Civ.P. 9(b); Miss. R. Civ. P. 9(b); Allen v. Mac Tools Inc., 671 So.2d 636, 642 (Miss. 1996);Brabham v. Brabham, 483 So.2d 341, 342 (Miss. 1986).
The Mississippi courts have clearly decided in the prescription drug context that the duty to warn does not extend to sales representatives. See e.g., Johnson v. Parke-Davis, 114 F. Supp.2d 522, 524-25 (S.D. Miss. 2000). In addition, under Mississippi law, sales representatives are not "sellers," but rather employees of the businesses which are the sellers.McCurtis v. Dolgencorp, Inc., 968 F. Supp. 1158, 1160-61 (S.D. Miss. 1997). As such, the employees are not liable for failure to warn. See id. There is "no reasonable basis in fact or colorable ground supporting the claim against" the sales representative defendants. Boyer, 913 F.2d at 111; see also Johnson, 114 F. Supp.2d at 524-25; In re Rezulin, 133 F. Supp.2d 272, 288-90 (S.D.N.Y. 2001).
VII.
Finally, plaintiffs bring claims against John Does 1-25, who appear to be anonymous in-state sales representatives of Wyeth. Plaintiffs purportedly name these unidentified defendants in an effort to defeat diversity. However, the removal statute provides that "the citizenship of defendants sued under fictitious names shall be disregarded." 28 U.S.C. § 1441(a). Thus, for the purposes of determining whether complete diversity exists so that these actions may remain in federal court, the citizenship of unidentified defendants is irrelevant.
VIII.
Wyeth has clearly met its heavy burden of showing that these defendants are fraudulently joined. Accordingly, we will deny the motions of the plaintiffs to remand these actions to the Mississippi state courts and will dismiss the complaints as to the in-state physicians and sales representative defendants.
We are only dismissing the claims against those defendant physicians who appear on the MDL 1203 docket in these actions. The plaintiffs' original complaints filed in the several Mississippi state courts named as defendants additional physicians who are not before this court.
PRETRIAL ORDER NO.
AND NOW, this day of May, 2004, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:(1) the motion of plaintiffs in Margie Broom, et al. v. Marcus Hogan, M.D., et al., CIV. A. No. 03-20587 (E.D. Pa.) to remand to the Circuit Court of Coahoma County, Mississippi is DENIED;
(2) all claims in Broom against Marcus Hogan, Glen Warren, Charles Tyler, Robert McKinney, G.A. Tubb, C.K. White, P.F. Hooper, Jim C. Barrett, Gary Reynolds, Charles Bear, Ernest Reeves (Deceased), Todd Fulcher, William Truly, Kelvin Sherman, Jim C. Barnett, Tony Hunt, Charles Cesare, Sara B. Schrader, Steven Himmelstien, Howard Clark, Dennis Adams, Robert F. Cooper, John Russel Barnes, Frank Wade, R.F. Cooper, Stephan Farrell, Joseph Roberts, Diane Ferguson, Forest Bratley, Susan Bodney, Miller, Freedman Lott, Haywood, Lunford, and Howard Clark are DISMISSED;
(3) the motion of plaintiffs in Cynthia Dillon, et al. v. Dennis Sims, M.D., et al., CIV. A. No. 03-20385 (E.D. Pa.) to remand to the Circuit Court of Pike County, Mississippi is DENIED;
(4) all claims in Dillon against defendants, Edsel F. Stewart Estate, Terry Westbrook, M.D., Terry R. Lowe, M.D., Leslie England, M.D., Charlie Parker, M.D., Unknown Seftall, M.D., Unknown Kumah, M.D., Forest Bratley, and Susan Bodney are DISMISSED;
(5) the motion of plaintiffs in Mona Allen-Kelly, et al. v. Calvin Masterson, M.D., et al., CIV. A. No. 03-20379 (E.D. Pa.) to remand to the Circuit Court of Lincoln County, Mississippi is DENIED;
(6) all claims in Allen-Kelly against defendants, Calvin Masterson, M.D., Lee Neal, M.D., Stewart Edsel Estate, Steven Morris, M.D., Alphonse Reed, M.D., Arthur Woods, Sr., M.D., Charles Gruich, M.D., Unknown Strong, M.D., Marie Moman, M.D., Billie Sollie (Estate of Patrick McClain, M.D.), G.T. Smith-Vanize, M.D., Charles McCullum, M.D., David Richardson, M.D., Steve Mills, M.D., Bruce Pruett, William Truly, M.D., Forest Bratley and Susan Bodne are DISMISSED;
(7) the motion of plaintiffs in Lana Smith, et al. v. Jasper D. Moore, M.D., et al., CIV. A. No. 03-20590 (E.D. Pa.) to remand to the Circuit Court of Bolivar County, Mississippi is DENIED; and
(8) all claims in Smith against defendants, Jasper D. Moore, M.D., Dr. W.L. Lanny Prichard, Charles Brock, Lee Harwell, Dr. Mason, Jack Bruce Pruett, Clarence D. Whigham, Robert Ritter (Deceased), Marcus Hogan, T.T. Lewis, Lee F. Neal, David Richardson, Ross Sherman, Dr. Frank Wade, Albert McNair, Arthur, Sr. (Deceased), Stephen Nmi Tramil, Stephan Farrell, Dr. Boyd Benefield, Alphonse Reed, M.D., Forest Bratley and Susan Bodney are DISMISSED.