Opinion
Master File 00 Civ. 2843 (LAK)
February 27, 2002
This Document Relates to: 01 Civ. 3460, 01 Civ. 3461.
PRETRIAL ORDER NO. 60 (Disposition of Certain Remand Motions)
Plaintiffs in Grayer v. Pfizer, Inc., 01 Civ. 3460, and Cason v. Pfizer, Inc., 01 Civ. 3461, have sued the manufacturers of the prescription drug Rezulin as well as Mississippi pharmacies and pharmaceutical sales representatives for injuries allegedly caused by Rezulin. The cases were removed to federal court by the manufacturer defendants on the basis of diversity of citizenship and were transferred to this Court by the Judicial Panel on Multidistrict Litigation. The plaintiffs, all citizens of Mississippi, have moved to remand the cases on the ground that the presence of the nondiverse pharmacy and territory representatives as defendants destroys the complete diversity necessary for removal. Because the Court finds all the nondiverse defendants have been joined improperly, the motions to remand are denied.
As this Court has stated previously, there is no reasonable possibility that plainitffs' claims against the pharmacy defendants will succeed under Mississippi law. See In re Rezulin Prods. Liab. Litig, 133 F. Supp.2d at 288-92 ("Rezulin I"). In consequence, the pharmacy defendants were joined improperly and their presence is immaterial for diversity purposes.
As this Court already has held, Mississippi law imposes no duty to warn consumers on pharmaceutical sales representatives. See Rezulin I, 133 F. Supp.2d at 282. Even if there were such a duty, the claims in Grayer and Cason would fail to state a claim against the sales representatives because plaintiffs have failed to allege sufficiently that the territory representative defendants knew or had reason to know that Rezulin was defective and unreasonably dangerous. See id. at 283. The affidavits of the two physicians that plaintiffs have submitted do not save their claims because the affidavits do not attest to any facts indicating that the representatives had or should have had such knowledge.
The lack of factual allegations regarding the sales representatives' knowledge of Rezulin's alleged defects is fatal also to the plaintiff's claim under the Mississippi deceptive advertising statute. Miss. Code Ann. § 97-23-3. The statute holds liable persons who "knew, or might on reasonable investigation have ascertained [an advertisement] to be untrue, deceptive or misleading." Id. Plaintiffs' catch-all allegation that "defendants knew or should have known that these statements, representations, omissions, advertisements, or promotional schemes were deceptive, false, incomplete, misleading and untrue when made" fails to state a claim against the territory representatives under the Mississippi deceptive advertising statute. Additionally, the statute applies to advertisements that are circulated to or placed before the public, directly or indirectly, and nowhere have plaintiffs alleged facts upon which a court could find that the territory representatives supplied information regarding Rezulin to anyone other physicians. It is not necessary for this Court to decide whether the Mississippi courts would find the communication of information about Rezulin to physicians sufficient to sustain a claim that the territory representatives circulated to or placed before the public advertisements about Rezulin. Plantiffs' claims would fail in any event because of the lack of factual allegations regarding the sales representatives' knowledge.
Cason Cpt. ¶ 38, Grayer ¶ 38.
The plaintiffs in Grayer and Cason assert a negligence claim against the territory representatives as well. In essence, this is a claim for negligent misrepresentation because the plaintiffs allege that representatives breached their duty to report truthfully and use reasonable means to ascertain the truth of the representations they were making regarding Rezulin. There is no reasonable possibility that this claim against the territory representatives will succeed because the plaintiffs have failed to allege either that the territory representatives made any misrepresentation to the them and that they relied on any such misrepresentation. See Rezulin I, 133 F. Supp.2d at 285. Indeed, the territory representatives have submitted affidavits in which each states that he or she has "made no representations by way of promotion or advertising or otherwise, or any statements whatsoever . . . regarding Rezulin to any plaintiff or to the general public."
Cason Cpt. ¶ 43, Grayer Cpt. ¶ 43.
Affidavit of Alice E. Bonar ¶ 4; Affidavit of Liesl Daly Bold ¶ 4; Affidavit of Bob Hensarling ¶ 4; Affidavit of David L. Lemoine ¶ 4; Affidavit of Karen Massingale-Ewan ¶ 4; Affidavit of Lee Miers ¶ 4.
The Court notes that plaintiffs in these cases have misconstrued the meaning of the Mississippi Supreme Court's statement in Wyeth Labs., Inc. v. Fortenberry, 530 So.2d 688 (Miss. 1988). The statement relied on by plaintiffs, "if there is no physician in the role of learned intermediary then the drug manufacturer has a duty to adequately warn the consumer," id. at 692, simply does not support plaintiffs' remand position in this case. Because physicians undertook to treat the plaintiffs, "a special relationship, between physician and patient, [was] formed; this relationship receives special protection in law." Swayze v. McNeil Labs., Inc., 807 F.2d 464, 471 (5th Cir. 1987). It seems that plaintiffs' argument is that because the physicians who prescribed Rezulin would have been more learned intermediaries had they known of Rezulin's alleged defects, the entire learned intermediary doctrine is inapplicable to their relationships with their patients. This simply is not the law of Mississippi. "When the physician-patient relationship does exist, as here, we hesitate to encourage, much less require, a drug manufacturer to intervene in it." Id. Plaintiffs' arguments about direct-to-consumer advertising notwithstanding, this is not a case in which "no individualized medical judgment invervene[d] between the manufacturer of a prescription drug and the ultimate consumer." Reyes v. Wyeth Labs., 498 F.2d 1264, 1276 (5th Cir. 1974). While the Mississippi Supreme Court may find that a manufacturer's decision to engage in direct-to-consumer advertising alters the scope of the manufacturer's liability, it does not follow that this would alter the scope of liability of the pharmacies or territory representatives in the instant cases.
As an alternative to remanding the case to state court for lack of subject matter jurisdiction, the plaintiffs ask the Court to abstain from exercising jurisdiction. Because the nondiverse defendants were joined improperly, there is federal diversity jurisdiction over both cases. As a result, there is no basis for the assertion that the Court is required to abstain. Plaintiffs' arguments urging that the Court exercise its discretion to abstain are unpersuasive. The fact that state law will provide the rules of decision on the substantive issues in the complaints does not outweigh the other factors in the discretionary abstention balance. The requirements of diversity jurisdiction have been met and the manufacturer defendants therefore have a right to a federal forum. Additionally, these cases are two of the hundreds that have been transferred to this Court for pretrial purposes. There simply is no reason for the Court to abstain in these cases.
The motions for mandatory or discretionary abstention and to remand in Grayer v. Pfizer, Inc., 01 Civ. 3460, and Cason v. Pfizer, Inc., 01 Civ. 3461, are denied.
SO ORDERED.