Opinion
MASTER FILE 00 Civ. 2843 (LAK), This Document Relates to: 01 Civ. 7761.
April 18, 2002
PRETRIAL ORDER NO. 78 (Remand Motion in Fortney v. Pfizer, Inc.)
In Pretrial Order No. 71, the Court ordered the plaintiffs in Fortney v. Pfizer, Inc., No. 01 Civ. 7761, to provide the Court with a copy of Exhibit A which purportedly was filed along with the complaint in the state court in Mississippi. Familiarity with the prior order is assumed.
Paragraph 95 of the complaint in Fortney promises that Exhibit A will "identif[y] which defendant-physician prescribed Rezulin to each plaintiff" (emphasis added). The exhibit does no such thing. What it does is indicate that each of the four remaining nondiverse physician defendants allegedly prescribed Rezulin to one of the plaintiffs. As for the remaining plaintiffs, who number over 350, the exhibit contains no indication that any one of them ever was prescribed Rezulin by one of the nondiverse physician defendants. Because these plaintiffs do not allege a doctor-patient relationship, is no reasonable possibility that they will be successful in their claims against the nondiverse physician defendants. However, the Court cannot now rule out the possibility that the four plaintiffs who do allege that the nondiverse physician defendants prescribed Rezulin to them might succeed in holding these defendants liable. In consequence, the citizenship of these defendants is material for diversity purposes and, as they are citizens of the same state as the plaintiffs, their presence destroys the complete diversity that must exist in order for the Court to exercise diversity jurisdiction over this action.
Plaintiffs voluntarily dismissed their claims against two such defendants.
But the fact that four of the plaintiffs have made allegations against nondiverse defendants that are sufficient to warrant remand does not end the matter. As the Court previously has held, the joinder of plaintiffs who have no connection to each other except the fact that they ingested Rezulin constitutes misjoinder. See, e.g., In Re Rezulin Prods. Liab. Litig., 168 F. Supp. 2 d 136, 146 (S.D.N.Y. 2001). For this reason, the plaintiffs in Fortney are misjoined. Because the misjoinder of plaintiffs with claims against the nondiverse defendants would destroy complete diversity, the Court will sever the claims of those four plaintiffs so as to preserve the defendants' right to removal of the remainder of the action. See id. at 148.
Accordingly, the claims of plaintiffs Michael Bridges, Kathy Walker Hamilton, Earlene Allen, and Charlie Akins are severed from the actions of their co-plaintiffs and the motions to remand of these four plaintiffs are granted. The motions to remand of the remaining plaintiffs in Fortney v. Pfizer, Inc., No. 01 Civ. 7761, are denied.
SO ORDERED.