Opinion
Master File (MDL No. 1348) 00 Civ. 2843 (LAK)
April 3, 2002
PRETRIAL ORDER NO. 70 (Disposition of Certain Remand Motions) This Document Relates to: 01 Civ. 7763, 01 Civ. 7764, 01 Civ. 7765, and 01 Civ. 7767.
Plaintiffs in these four actions, all citizens of Mississippi, have brought claims against the manufacturers of Rezulin and also against pharmaceutical territory representatives, themselves citizens of Mississippi, and Mississippi pharmacies for injuries allegedly suffered as a result of use of the drug Rezulin. The claims were brought in Mississippi state court, removed to federal court by the manufacturer defendants, and transferred to this Court for pretrial purposes along with hundreds of other cases involving Rezulin. The matters now are before the Court on plaintiffs' motions to remand. Because there in no reasonable possibility that the plaintiffs will be able to recover against the nondiverse defendants, their presence is immaterial for diversity purposes. In consequence, the motions to remand are denied.
This Court already has ruled that pharmacists in Mississippi have no duty to warn patients of possible harmful side effects of drugs prescribed by physicians and that this is fatal to plaintiffs' claims for negligence, breach of warranty and strict liability. In re Rezulin Products Liab. Litig., 133 F. Supp.2d 272, 289-90 nn. 55-56 (S.D.N.Y. 2001) ("Rezulin I"). It is fatal also to the claim of negligent misrepresentation, as it is based on a theory of failure to warn. Finally, as plaintiffs do not allege facts to support a claim that the pharmacies knew of Rezulin's alleged dangers, there is no reasonable possibility that they will succeed on their fraud and deceit claims against the pharmacy defendant.
Plaintiffs' claims against the territory representatives fare no better. Plaintiffs have not alleged facts sufficient to support a finding that the territory representatives knew or had reason to know of Rezulin's alleged defects. Nor have they alleged that the defendant territory representatives failed to warn plaintiffs' particular physicians and that this failure proximately caused plaintiffs' injuries. As a result, there is no reasonable possibility that plaintiffs will succeed on their negligence claims against the territory representative. Id. at 282. Because plaintiffs' strict liability claims, although inartfully stated, are based the failure to warn, plaintiffs have failed to allege facts sufficient to succeed on this theory as well. Plaintiffs' failure to allege facts sufficient to support a finding that the territory representatives knew that Rezulin was unsafe but withheld the truth to mislead the plaintiffs is fatal to their claims of fraud, deceit and negligent misrepresentation. Id. at 283. Finally, plaintiffs cannot succeed on a breach of warranty claim against the territory representatives because they were not sellers of Rezulin for the purposes of the drug's warranty. Id. at 286.
E.g., Andrews Cpt. ¶ 64 ("At all times herein, the drug Rezulin was unseasonably dangerous, defective and unsafe for consumption by the general public. The drug reached the Plaintiffs herein and Plaintiffs' decedents and was consumed without having been warned of the harmful side effects of the drug.").
Because the Court finds that all the nondiverse defendants in Hurlbert v. Parke-Davis, No. 01 Civ. 7763, Shows v. Parke-Davis, No. 01 Civ. 7764, Andrews v. Parke-Davis, No. 01 Civ. 7765, and King v. Parke-Davis, No. 01 Civ. 7767, are joined improperly, the motion to remand in each case is denied.
SO ORDERED.