Opinion
MASTER FILE 00 Civ. 2843 (LAK). This Document Relates to: 01 Civ. 3456, 01 Civ. 3457, 01 Civ. 3458, and 01 Civ. 3459.
February 21, 2002
PRETRIAL ORDER NO. 59 (Disposition of Certain Remand Motions)
Plaintiffs in Pruitt v. Pfizer, Inc., No. 01 Civ. 3456, Skinner v. Pfizer, Inc., No. 01 Civ. 3457, Sanders v. Pfizer, Inc., No. 01 Civ. 3458, and Maxwell v. Pfizer, Inc., No. 01 Civ. 3459, have sued the manufacturers of Rezulin as well as Mississippi pharmacies, physicians, and clinics 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-, physician-, and clinic-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.
This Court already has held that there is no reasonable possibility that Mississippi law would hold pharmacists strictly liable as sellers of prescription drugs. See In re Rezulin Prods. Liab., 133 F. Supp.2d at 288-92 ("Rezulin I"). Plaintiffs' attempt to sue each pharmacy "only in its capacity as the retail seller of Rezulin" does not save their claims. See id. at 292 ("[T]here is no basis for adopting the view that a pharmacist is a retail merchant like any other with respect to the sale of prescription drugs."). For the reasons stated in Rezulin I, the pharmacy defendants were joined improperly and their presence is immaterial for diversity purposes.
In order to maintain a medical malpractice claim against a physician in Mississippi, a plaintiff must (1) establish the doctor-patient relationship and its attendant duty, (2) identify the requisite standard of care, (3) establish a breach of that standard of care by the physician, (4) prove that the physician's noncompliance with that standard of care caused the plaintiff's injury, and (5) prove the extent of the plaintiff's damages. Plaintiffs do not allege a doctor-patient relationship between themselves and the physician-defendants. In all four cases, the plaintiffs simply allege that "Rezulin was prescribed to the Plaintiffs for the purpose of treating their diabetes." It is impossible to tell from the complaints whether any or all of the physician-defendants prescribed Rezulin to any or all of the plaintiffs. There is no reasonable possibility that plaintiffs can succeed in making out a claim against these physicians on the facts alleged, whatever the theory of liability.
Robinson v. Hawkins, 541 So.2d 1048, 1050-52 (Miss. 1989)
Maxwell, Pruitt, Sanders, and Skinners Cpts. ¶¶ 9.
The plaintiffs' claims against the clinics suffer from the same flaw. There is no allegation that any plaintiff was treated with or prescribed Rezulin at any of these clinics. Although the complaints allege that the physician and clinic defendants owed a duty of care to the plaintiffs, this conclusory allegation, unsupported by factual allegations, is insufficient to defeat remand. In consequence, the nondiverse physician and clinical defendants were joined improperly and their presence, too, is immaterial for diversity purposes.
Because the Court finds that all the nondiverse defendants in Pruitt v. Pfizer, Inc., No. 01 Civ. 3456, Skinner v. Pfizer, Inc., No. 01 Civ. 3457, Sanders v. Pfizer, Inc., No. 01 Civ. 3458, and Maxwell v. Pfizer, Inc., No. 01 Civ. 3459, are joined improperly, the motion to remand in each case is denied.
SO ORDERED.