Opinion
MDL Docket No. 1203, Civil Action No. 03-20290.
April 2, 2004
MEMORANDUM AND PRETRIAL ORDER NO.
Thirty-one plaintiffs, all citizens of Mississippi, originally instituted this personal injury action against Wyeth and twenty-two in-state physicians in the Circuit Court of Jasper County, Mississippi on December 30, 2002. Wyeth timely removed the action to the United States District Court for the Southern District of Mississippi. That court deferred ruling on plaintiffs' motion to remand, and the case was then transferred to this court as part of MDL 1203. We now decide plaintiffs' pending motion.
Wyeth was previously known as American Home Products Corporation ("AHP").
The plaintiffs in this action have exercised their right of intermediate 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 encompasses 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. Unlike initial opt-outs, later opt-outs continue to be class members even though they now have separate lawsuits pending.
I.
Plaintiffs assert claims of negligence, negligence per se, strict products liability (design defect and failure to warn) misrepresentation, and breach of warranties against Wyeth, the manufacturer of Pondimin and Redux. All but two of the plaintiffs assert claims of negligence against in-state physician defendants who prescribed Wyeth's diet drugs Pondimin and/or Redux for them.
The plaintiffs maintain that remand is appropriate because complete diversity does not exist as required under 28 U.S.C. § 1332(a). While Wyeth is of diverse citizenship, the physicians are not. Wyeth counters that the physicians were fraudulently joined because the applicable two-year statute of limitations bars plaintiffs' claims against them. See MISS. CODE ANN. § 15-1-36 (West 2003). Thus, Wyeth argues, plaintiffs' claims against these non-diverse defendants should be disregarded for purposes of determining diversity of citizenship. Plaintiffs respond that the statute of limitations has not expired because they discovered their injuries less than two years prior to filing their complaint against the non-diverse defendants. Finally, plaintiffs contend that Wyeth is estopped from asserting that the statute of limitations has expired as to any physician defendants.
The statute of limitations is not an issue in plaintiffs' claims against Wyeth, which has waived its right to assert this defense in return for the plaintiffs' giving up their right to sue Wyeth for "punitive, exemplary, and multiple damages." Settlement Agreement § IV.D.3.c; see PTO No. 2625 and PTO No. 2680.
II.
This court addressed identical issues presented by plaintiffs' remand motion 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. In French, we explained 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.
Wyeth argues that plaintiffs' complaint does not state colorable claims against these defendants because plaintiffs' claims are barred by the Mississippi statute of limitations. The statute provides in relevant part:
For any claim accruing on or before June 30, 1998, and except as otherwise provided in this section, no claim in tort may be brought against a licensed physician, osteopath, dentist, hospital, institution for the aged or infirm, nurse, pharmacist, podiatrist, optometrist or chiropractor for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.
MISS. CODE ANN. § 15-1-36(1) (emphasis added). For any claim accruing on or after July 1, 1998, the statute of limitations is the same for all relevant purposes.
The statute of limitations for claims accruing after July 1, 1998 adds tolling provisions for fraudulent concealment and instances when a foreign object is left in a patient's body.See MISS. CODE. ANN. § 15-1-36(2)(a), (b). Both provisions require a plaintiff to bring an action within two years of the time when the alleged injury or fraud should have been discovered, and no later than seven years after the alleged act of neglect. See id.
In French, we set forth the standard for when an action "accrues" under Mississippi law. See PTO No. 3281 at 6. In short, an action accrues when a patient can reasonably be held to have knowledge of the injury itself, cause of injury, and the conduct of the medical practitioner. Fortenberry v. Mem'l Hosp. at Gulfport, Inc., 676 So.2d 252, 255 (Miss. 1996); see also First Trust Nat'l Ass'n v. First Nat'l Bank of Commerce, 220 F.3d 331, 336-37 (5th Cir. 2000); In re Catfish Antitrust Litig., 826 F. Supp. 1019, 1031 (N.D. Miss. 1993).
Plaintiffs contend that they brought their action within two years "from the date the alleged act . . . with reasonable diligence might have been first known or discovered." MISS. CODE. ANN. § 15-1-36(1). According to plaintiffs, they could not have reasonably discovered their purported injuries until their alleged heart problems were diagnosed after reviewing their echocardiograms. Plaintiffs assert that their diagnoses occurred less than two years prior to filing their complaint. Wyeth counters that plaintiffs should have been on notice of their stated injuries as a result of the widespread publicity accompanying the withdrawal of the diet drugs from the market in September, 1997. Wyeth further contends that plaintiffs should have known about their alleged injuries at the very latest in March, 2000, after Wyeth's extensive publicity campaign.
IV.
As discussed in greater detail in French, supra, there was massive publicity from 1997 through March of 2000 concerning Wyeth's diet drugs and their connection to valvular heart disease. As a result, plaintiffs should have been aware of their injuries no later than March, 2000. Because plaintiffs did not file their action until December 30, 2002, their claims of negligence against the in-state physicians are time barred.
V.
Finally, plaintiffs assert that the physician defendants are estopped from raising a statute of limitations defense under the Settlement Agreement. We disagree. Section IV.D.3.c of the Settlement Agreement states in relevant part:
With respect to each Class Member who timely and properly exercises the Intermediate Opt-Out right and who initiates a lawsuit against any of the Released Parties within one year from the date on which the Intermediate Opt-Out right is exercised, the AHP Released Parties shall not assert any defense based on any statute of limitations or repose. . . . A Class Member timely and properly exercising an Intermediate Opt-Out right may not seek punitive, exemplary, or any multiple damages against the AHP Released Parties or the Non-AHP Released Parties; provided however, as consideration for being a Non-AHP Released Party and for receiving the benefit of this waiver of punitive, exemplary, and multiple damages, the Non-AHP Released Party must agree in writing not to assert any defense based on any statute of limitations or repose . . . and provided further that if the Non-AHP Released Party so agrees, then the Class Member may not recover more than the total amount of compensatory damages he or she is entitled to from all persons or entities in connection with any claimed injury arising from his/her use of Diet Drugs, except where such limitation is inconsistent with applicable law.
The language of § IV.D.3.c of the Settlement Agreement is clear in its instruction that any non-AHP released party retains the benefit of the statute of limitations provided that the party has not affirmatively waived the benefit in writing. The physician defendants in this action are clearly non-AHP released parties. Plaintiffs fail to contend or provide information that any of these physicians has agreed in writing to waive the statute of limitations. As such, the in-state physician defendants in these matters retain the benefit of the statute of limitations defense.
Non-AHP Released Parties include, inter alia:
All physicians who prescribed, and all pharmacists and pharmacies who dispensed, Pondimin and/or Redux to the extent that liability against such physicians, pharmacists or pharmacies is based on:
(1) the prescription or dispensing of Pondimin and/or Redux in a manner consistent with the product labeling; and/or
(2) the prescription or dispensing of Pondimin for any period longer than a "few weeks"; and/or
(3) the prescription or dispensing of Pondimin and/or Redux for concomitant use with Phentermine hydrochloride or Phentermine resin; and/or
(4) a claim that the physician's or pharmacist's liability stems solely from having prescribed or dispensed Pondimin and/or Redux; and/or
(5) a claim that the physician's or pharmacist's liability stems solely from the prescription or dispensing of a defective or unreasonably dangerous product.
Physicians, pharmacists and pharmacies are not Released Parties with respect to any claim based on their independent negligence or culpable conduct, not consisting of conduct described in paragraphs (1)-(5) of this Subsection I.48.e.
Settlement Agreement § I.48.e.
VI.
For the reasons more fully articulated in French, we find that Wyeth has met its heavy burden of showing that the instate physician defendants are fraudulently joined. Thus, we will deny the motion of the plaintiffs to remand this action to the Circuit Court of Jasper County, Mississippi and will dismiss the complaint as to these physician defendants.
We are only dismissing claims against those defendant physicians who appear on the MDL 1203 docket in this action.
PRETRIAL ORDER NO.
AND NOW, this day of April, 2004, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:(1) the motion of plaintiffs in Debra Meeks, et al. v. Wyeth, et al., CIV.A. No. 03-20290 (E.D. Pa.) to remand to the Circuit Court of Jasper County, Mississippi is DENIED;
(2) all claims in Meeks against defendants John G. Downer, M.D., Harold John Wheeler, M.D., Randall Toombs Huling, Jr., M.D., James Keith Stanford, B. Lewayne Lambert, M.S., Charles Osborn, M.D., F. Lee Neal, M.D., Robert Cooper, M.D., Troy Morris, M.D., Dr. Valencia P. Martin, Walter C. Gough, Jr., M.D., Guy Farmer, M.D., William Manley Wadsworth, M.D., John William Lewis, M.D., Dr. William Middleton, S. Jay McDuffy, M.D., Theodore T. Lewis M.D., Stephen Milam Shirley, M.D., Samuel Marcus Allen, II, M.D., William A. Middleton, M.D., and "Dr. Valencia P. Martin 1" are DISMISSED.