Opinion
Master File, 00 Civ. 2843 (LAK)
April 4, 2002
This Document Relates to: 01 Civ. 8154. PRETRIAL ORDER NO. 72 (Disposition of Remand Motion)
In Scott v. Warner-Lambert, 01 Civ. 8154, plaintiff, a citizen of Florida, has sued the manufacturers of Rezulin as well as Eckerd Corporation, a company with its principal place of business in Florida. The manufacturer defendants removed the case to federal court on the basis of diversity of citizenship. Plaintiff moves to remand, asserting that Eckerd's presence destroys complete diversity. Because there is no reasonable possibility that plaintiff can succeed in her cause of action against Eckerd, the motion to remand is denied.
Under Florida law, as plaintiff appears to recognize, a pharmacy may not be held liable for dispensing drugs in accordance with duly written prescriptions. McLeod v. W.S. Merrell Co., 174 So.2d 736 (Fla. 1965); see also Oberoi v. American Home Prods. Corp., No. 99-2317-CIV-T-24C, (M.D.Fla. Nov. 23, 1999) (order granting motion to remand) ("Oberoi Order"). Relying on Oberoi, plaintiff argues that she has not sued Eckerd as a dispenser of prescriptions but rather as a marketer, promoter, seller, and/or distributor of Rezulin. The Court need not decide whether plaintiff is correct in relying on Oberoi for the proposition that under Florida law it is possible to state a claim against a pharmacy acting in the capacity of marketer, promoter, seller, or distributor because any such claim advanced by Scott in this case lacks a basis in fact sufficient to defeat removal.
The Court notes, however, that in at least one instance, Florida law imposes a duty of care on pharmacies that is narrower than that imposed by the law of some other states. Other states impose a duty on pharmacies to warn patients of possible drug interactions when prescribing multiple drugs. See, e.g., Dooley v. Everette, 805 S.W.2d 380, 385 (Tenn.Ct.App. 1990) (whether Tennessee law imposes on pharmacists a duty to warn of drug interactions is a question of fact for the jury). Florida law imposes no such duty. See, e.g., Johnson v. Walgreen Co., 675 So.2d 1036 (Fla.Dist.Ct.App. 1996) ("The question presented is whether [the pharmacy] fulfilled its duties when it accurately filled [the decedent's] lawful prescriptions, but failed to warn him or his doctors of the potential adverse drug interactions such a combination pf prescriptions might cause. We determine that no such duty to warn exists in Florida.").
As this Court previously has noted, "[t]he Second Circuit's standard for fraudulent joinder allows for removal despite the presence of non-diverse defendants if the claims against those defendants have no basis in fact." In re Rezulin Products Liab. Litig., 133 F. Supp.2d 272, 281 (S.D.N.Y. 2001) ("Rezulin I"). In response to plaintiff's motion to remand, defendants have submitted the affidavit of Michael Lops, the vice-president of legal compliance for Eckerd. In his affidavit, Lops states that "Eckerd is not, and has never been, in the business of making, creating, manufacturing, assembling, designing, sterilizing, testing, evaluating, packaging, marketing, advertising, or warranting and/or assisting in any of the aforesaid acts involving Rezulin." Lops Aff. ¶ 3. He further states that "Eckerd pharmacies had no knowledge of any alleged defective condition with respect to Rezulin and did not in any way cause or contribute to any alleged defective condition with said drug," and "Eckerd's only involvement with this drug was the filling of prescriptions for customers in accordance with the instructions of their doctors." Id. Plaintiff has not responded to the affidavit in any way. The Court can conclude only that plaintiff's claims against Eckerd as a marketer, promoter, seller, and/or distributor of Rezulin lack any reasonable basis in fact. See Rezulin I, 133 F. Supp.2d at 281. In consequence, Eckerd's presence is immaterial for diversity purposes.
The Court already has held that consideration of an affidavit such as Lops' in opposition to motions to remand is appropriate. Rezulin I, 133 F. Supp.2d at 281.
Accordingly, plaintiff's motion to remand in Scott v. Warner-Lambert, 01 Civ. 8154, is denied.
SO ORDERED.