Opinion
MDL Docket No. 1203, Civil Action No. 03-20611.
September 28, 2004
MEMORANDUM AND PRETRIAL ORDER NO. 3993
Before the court is the motion of nine class members to remand to the Circuit Court for the City of St. Louis, Missouri, their actions against defendants Wyeth, Interneuron Pharmaceuticals, Inc. ("Interneuron"), and seven current or former sales representatives employed by Wyeth: Sharon Jenkins, Regina G. Thomas, Paul F. Brodeur, Richard H. Flett, Richard L. Sommers, James R. Pearce, Jr., and Daniel Jaworowski. Plaintiffs' motion for remand is before the undersigned as the transferee judge in MDL 1203, the mass tort litigation involving Wyeth's diet drugs commonly known as fen-phen. No federal claim for relief is alleged.
Wyeth was previously known as American Home Products Corporation ("AHP").
I.
In brief summary, plaintiffs filed their lawsuits for injuries allegedly sustained as a result of their use of the diet drugs known as Pondimin and/or Redux. Four of the plaintiffs are citizens of Missouri. The remaining five plaintiffs are citizens of five different states: Indiana, Oklahoma, Illinois, California, and Michigan. Wyeth, the manufacturer of Pondimin and Redux, and Interneuron, a co-promoter of Redux, are parties of diverse citizenship from all of the plaintiffs. Six of the sales representatives are purportedly citizens of Missouri while one is believed to be a citizen of Illinois.Plaintiffs originally filed their petitions in the Circuit Court for the City of St. Louis in June, 2003, more than five years after fen-phen was withdrawn from the market in September, 1997. On July 17, 2003, Wyeth removed the action to the United States District Court for the Eastern District of Missouri. The Missouri federal court deferred ruling on plaintiffs' remand motion, and the cases were then transferred to this court as part of MDL 1203.
Under Missouri practice, the first pleading in a civil lawsuit is known as a petition. See Mo. R. Civ. P. 53.01.
The 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 sales representatives were fraudulently joined and that plaintiffs were fraudulently misjoined.
II.
This court addressed similar issues presented by plaintiffs' remand motions in Pretrial Order ("PTO") No. 3207 in Ross v. Wyeth, et al., CIV.A. No. 03-20362 (E.D. Pa. Jan. 13, 2004), and in PTO No. 3213 in Savage v. Wyeth, et al., CIV.A. No. 03-20254 (E.D. Pa. Jan. 14, 2004), which are also part of the nationwide diet drug litigation. In Ross, we laid out in detail the standards for removal based on diversity jurisdiction and fraudulent joinder of the physician defendants in that case.See PTO No. 3207 at 3-5.III.
The key issue in this case is whether the non-diverse defendant sales representatives were fraudulently joined as defendants for the purpose of destroying diversity of citizenship and preventing removal. Plaintiffs assert claims in strict liability, negligence, and fraud against these sales representatives.
Wyeth argues that plaintiffs' petitions do not state colorable claims against these defendants because plaintiffs have failed to allege facts that would establish individual liability on the part of the sales representatives. Specifically, Wyeth asserts that plaintiffs have no colorable claims against sales representatives Paul Brodeur and Richard Sommers because they never promoted Pondimin or Redux. Wyeth supports its position by offering affidavits of these sales representatives stating that they never promoted Pondimin or Redux.
In addition, Wyeth contends that plaintiffs Jocelyn Byrd and James Moran have no colorable claims against the sales representatives because these plaintiffs ingested only Pondimin, and none of the sales representative defendants named in these actions promoted this drug. Again, Wyeth supports its position with uncontested affidavits of the defendant sales representatives. In their efforts to refute the sales representatives' sworn testimony, plaintiffs have produced exhibits that indicate Wyeth and its predecessors promoted Pondimin through its sales forces. While plaintiffs' documentation of Wyeth's efforts to promote Pondimin may be probative of plaintiffs' claims against Wyeth, they contain nothing that arguably rebuts the sworn testimony of the sales representative defendants in this case. See, e.g., Davis, et al. v. Wyeth, et al., CIV.A. No. 03-128 at 7 (M.D. Ga. June 10, 2004). As this court found in Memorandum and PTO No. 2886, inRainey v. Wyeth, et al., CIV.A. No. 03-20128 (E.D. Pa. June 12, 2003) and Memorandum and PTO No. 3856 in Bankston, et al. v. Wyeth, et al., CIV.A. No. 03-20765 (E.D. Pa. Aug. 12, 2004), uncontroverted sales representatives' affidavits are sufficient to establish fraudulent joinder. Based on these affidavits, there is no possibility that plaintiffs Byrd and Moran can recover against defendant sales representatives. Thus, the sales representative defendants are fraudulently joined as to plaintiffs Byrd and Moran.
Even assuming that any of the named sales representative defendants promoted Pondimin and/or Redux, we agree with Wyeth that its sales representatives do not assume individual liability merely by participating in their employer's purported failure to provide adequate information. See State of Missouri v. Kyger, 831 S.W. 2d 953, 956 (Mo.Ct.App. 1992) (citations omitted). Under Missouri law, an employee can be liable to a third party if he has complete control over his employer's premises or if he breaches some duty owed to the third party. Id. Here, the plaintiffs do not contend that the sales representatives had complete control over Wyeth's diet drugs. Instead, they allege that the sales representatives voluntarily assumed a duty to warn about the dangers of Pondimin and Redux. See Strickland v. Taco Bell Corp., 849 S.W. 2d 127 (Mo.Ct.App. 1993).
In Strickland, the court allowed plaintiff's wrongful death claim to survive summary judgment, relying on the Restatement (Second) of Torts § 323, which imposes a duty upon one who voluntarily undertakes to render services to another. TheStrickland court recognized that "one who acts gratuitously or otherwise is liable for the negligent performance of an act, even though there was no duty to act." Id. at 132. Unlike the restaurant manager in Strickland, who may have assumed a duty to help an intoxicated customer, Wyeth's sales representatives did not voluntarily undertake to render services to plaintiffs. In fact, the sales representatives never had any direct contact with plaintiffs, but merely relayed information from Wyeth to the physicians who purportedly prescribed Pondimin or Redux to these plaintiffs.
Plaintiffs in these cases argue that because Wyeth assigned the sales representatives the duty to relay warnings regarding the diet drugs to the prescribing physicians, the sales representatives assumed an additional duty to the plaintiffs. We disagree. Missouri courts have adopted the learned intermediary doctrine. See Krug v. Sterling Drug, Inc., 416 S.W.2d 143, 146 (Mo. 1967). Under this doctrine, the sales representatives had no duty to provide warnings directly to the patients. See In re Rezulin Prods. Liab. Litig., 133 F. Supp. 2d 272, 282 (S.D.N.Y. 2001). Instead, any duty to warn is fulfilled through the drug manufacturer's warning to the prescribing physician.Johnston v. Upjohn Co., 442 S.W. 2d 93, 95 (Mo.Ct.App. 1969). Accordingly, plaintiffs' contention that the sales representative defendants breached their duty to warn is without substance.
Plaintiffs also accuse the sales representatives of common law fraud. Under Missouri law, the elements of fraud are:
(1) a representation, (2) its falsity, (3) its materiality, (4) the speaker's knowledge of the falsity or his ignorance of its truth, (5) the speaker's intent that the representation should be acted upon by the hearer and in the manner reasonably contemplated, (6) the hearer's ignorance of the falsity of the representation, (7) the hearer's reliance on the truth of the representation, (8) the hearer's right to rely thereon, and (9) the hearer's consequent and proximately caused injury.Empire Bank v. Walnut Prods., Inc., 752 S.W.2d 404, 406 (Mo.Ct.App. S.D. 1988) (citations omitted). Both the Missouri and Federal Rules of Civil Procedure require that fraud be pleaded with particularity. Fed.R.Civ.P. 9(b); Mo. R. Civ. P. 55.15.
Plaintiffs, in their petitions, allege that the sales representatives "made false representations and omissions to Plaintiff's physician . . . including but not limited to, that [the diet drugs] were safe, had been adequately tested to determine safety, and did not present life-threatening dangers."See e.g., Castle Am. Pet. at ¶ 108. They further contend that the sales representatives made false representations "with the intent to defraud and deceive" the plaintiffs and prescribing physicians and that plaintiffs' prescribing physicians reasonably relied upon said misrepresentations. Id. at ¶¶ 110, 111. However, plaintiffs do not set forth any specific facts to support their conclusory allegations of fraud, but merely recite the elements of fraud. Accordingly, plaintiffs' attempt to allege fraud falls far short of what is required under federal or Missouri law.
In addition to the above arguments, Wyeth argues that remand is appropriate because plaintiffs' claims against the sales representative defendants are barred by the statute of limitations and because plaintiffs are fraudulently misjoined. Because we find "no reasonable basis in fact or colorable ground" supporting plaintiffs' claims against the sales representative defendants, we need not determine the statute of limitations or fraudulent misjoinder of plaintiffs issues. See Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990).
IV.
Plaintiffs also contend that Wyeth's removal was procedurally defective because some or all of the sales representative defendants did not consent to removal. We are not persuaded. A removing defendant need not obtain consent for removal from fraudulently joined defendants. See Anderson v. Am. Home Prods. Corp., 220 F. Supp. 2d 414, 424 (E.D. Pa. 2002), aff'd, 2004 WL 326993 (3d Cir. Feb. 23, 2004).
V.
Wyeth has met its heavy burden of showing that the instate sales representative defendants are fraudulently joined. Accordingly, we will deny the motion of the plaintiffs to remand this action to the Circuit Court for the City of St. Louis and will dismiss the petitions as to these sales representative defendants.
PRETRIAL ORDER NO. 3993
AND NOW, ____ this day of September, 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 claims against defendants Sharon Jenkins, Regina G. Thomas, Paul F. Brodeur, Richard H. Flett, Richard L. Sommers, James R. Pearce, Jr., and Daniel Jaworowski are DISMISSED.