Opinion
Case No. 6:02-cv-1428-Orl-19KRS
April 10, 2003
ORDER
This case comes before the Court upon the following:
1. Plaintiff's Motion for Remand and Memorandum of Points and Authorities in Support Thereof (Doc. Nos. 17 and 18); Defendants' Joint Memorandum of Law in Opposition to Plaintiff's Motion to Remand (Doc. No. 36); and
2. Plaintiffs Motion for Permission to File a Reply Memorandum in Support of Plaintiff's Motion for Remand (Doc. No. 39).
BACKGROUND
On October 30, 2002, Plaintiff filed a class action complaint in the Eighteenth Judicial Circuit Court in and for Brevard County, Florida, against the manufacturers and distributors of the drag OxyContin stating claims for violation of the Florida Deceptive and Unfair Trade Practices ("FDUTPA") and medical monitoring. (Doc. No. 2). On November 29, 2002, Defendants removed the action to this Court alleging jurisdiction under both 28 U.S.C. § 1332 (diversity of citizenship) and 1331 (federal question). On December 20, 2002, Plaintiff filed a motion for remand (Doc. No. 18) to which Defendants responded on January 23, 2003. (Doc. No. 36). Since the question before the Court involves the legal issue of subject matter jurisdiction, the Court will not present the factual allegations of the complaint except as needed to support its analysis of the legal issue.
ANALYSIS
1. Diversity Jurisdiction
Removal from a state to a federal court is controlled by 28 U.S.C. § 1441 which provides, in relevant part' that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States . . ." Original jurisdiction may be premised on diversity of citizenship where the suit is between citizens of different states and the amount in controversy exceeds the statutorily prescribed amount, currently $75,000.00. 28 U.S.C. § 1332. In the instant case, Plaintiff does not dispute diversity but argues that Defendants have not met their burden of proof to establish the amount in controversy.
Generally, in a class action lawsuit, if no single plaintiff's claim satisfies the requisite amount in controversy, there is no diversity jurisdiction. Members of a class may not aggregate their claims to reach the jurisdictional amount. Morrison v Allstate Indemnity Company, 228 F.3d 1255, 1262 (11th Cir. 2000). Where a plaintiff has specifically claimed less than the jurisdictional amount m state court, a defendant must prove to a "legal certainty" that the plaintiff would not recover less than the jurisdictional amount if he or she prevailed. Burns v. Windsor Ins. Co., 31 F.3d 1092, 1094 (11th Cir. 1994). Where, as in the instant case, the damages are unspecified, a preponderance of the evidence standard applies. Sierminski v. Transouth Financial Corporation, 216 F.3d 945 (11th Cir. 2000).
In the instant case, Plaintiff alleges that Defendants' conduct violated the FDUTPA by their widespread and aggressive marketing campaign promoting OxyContin to physicians and the public as suitable for first line pain treatment; their aggressive and widespread marketing campaign promoting OxyContin's controlled-release feature as an effective safeguard against opioid addiction and an effective means of delivering smooth and continuous 12-hour pain relief; the lack of adequate warnings and instructions regarding the risks and defects of OxyContin; and the defective product design of OxyContin. Plaintiff seeks all equitable injunctive relief and penalties available under Florida's Consumer Protection Procedures Act, including treble damages and/or the statutory penalty amount; the refund of all monies spent by Plaintiff and class members on OxyContin; attorney's fees and costs, including pre-judgment and post-judgment interest, as well as the establishment of a comprehensive medical monitoring program.
The medical monitoring program would require Defendants to notify individuals who have received OxyContin of the potential harm from taking OxyContin; provide for screening evaluations and regular medical examinations for all members of the class, including physical and psychological examinations, illicit drug use testing or other appropriate procedures; provide for the creation, maintenance and operation of a registry in which relevant medical information concerning OxyContin and addiction is gathered, maintained, and analyzed; fund further studies of the long-term effects of OxyContin; publish and otherwise disseminate all such information to members of the class, their physicians, and the medical community at large; and provide funds for substance abuse, treatment and rehabilitation programs for Plaintiff and members of the class.
In order to defeat Plaintiff's motion for remand, Defendants must show by a preponderance of the evidence that Plaintiff's combined requests for relief satisfy the amount in controversy. The elements that must considered in establishing the amount in controversy include Plaintiff's requests for the reimbursed purchase price of the OxyContin, treble damages and/or the statutory penalty amount under the FDUTPA, attorney's fees, and the value to the Plaintiff of the medical monitoring fund.
For purposes of establishing the amount in controversy, the purchase price of OxyContin, damages sought under FDUTPA, and attorney's fees may not be aggregated. See Morrison v. Allstate Indemnity Company, 228 F.3d 1255 (11th Cir. 2000). Defendants assert that the combined cost of these requests for relief, even without aggregation, more likely than not will exceed $75,000. However, Defendants provide nothing more than conclusory allegations in support of their position. The FDUTPA, § 501.211(2) allows consumers to recover actual damages, plus attorney's fees and court costs. Given the number of potential Plaintiffs, the damages and attorney's fees would have to be excessively large for Plaintiff's pro rata share to meet the $75,000 jurisdictional requirement. See Id. at 1264. At this stage in the litigation, the amount of damages, refund of drug costs, and attorney's fees that might ultimately be due Plaintiff are simply too speculative to support an assumption that Plaintiff will meet the jurisdictional amount.
Plaintiff asserts that OxyContin now garners more in sales than any other Schedule II narcotic in the United States, amounting to more than 1.5 billion dollars in sales in 2001. For 2001 Florida ranked 5th out of 50 states and the District of Columbia for OxyContin prescriptions per 100,000 population.
The costs associated with the medical monitoring program are more problematic. As previously noted, in a class action suit if no single plaintiff's claim satisfies the amount in controversy there is no diversity jurisdiction. The only exception to this rule is if multiple plaintiffs have a unified, indivisible interest in some common fund that is the object of litigation, permitting them to aggregate their individual stakes to reach the amount in controversy threshold.Morrison, 228 F.3d at 1262. Defendants contend that the medical monitoring fund requested by Plaintiff constitutes such a common fund. Given the extensive medical monitoring relief sought by Plaintiff and the potential size of the class, Defendants argue it is facially apparent that the requisite jurisdictional amount is satisfied. However, the Court does not need to make that determination because it finds that the requested medical monitoring fund is not a common fund in which the potential class members have a common and undivided interest.
There is a common thread in the relevant case law regarding this issue. A common and undivided interest is rather uncommon, existing only when the defendant owes an obligation to the plaintiffs as a group and not to individuals severally. Id. at 1262. The paradigmatic "common fund" cases assert claims to a piece of land, a trust fund, an estate, an insurance policy, alien, or an item of collateral, which plaintiffs claim as common owners or in which they share a common interest arising under a single title or right. Id. at 1263 (citing Gilman v. BHC Secs., Inc., 104 F.3d 1418, 1424 (2d Cir. 1997)). Under the "common fund" exception, aggregation is permitted only in those situations where there is not only a common fund from which the plaintiffs seek relief, but also where the plaintiffs have a joint interest in the fund such that unless plaintiff's rights are affected by the rights of co-plaintiffs, there can be no aggregation. Id. (citing Eagle Star Ins. Co. v. Maltes, 313 F.2d 778 (5th Cir. 1963)). Moreover, the Supreme Court has unequivocally stated that the modem class action procedure does not alter the well-settled limitation on aggregating the claims of multiple plaintiffs. Id. (citingSynder v. Harris, 394 U.S. 332 (1969)).
Decisions of the Fifth Circuit Court of Appeals issued prior to October 1, 1981, are binding precedent on this Court. See Bonner v. City of Pritchard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
Defendants point to three cases that have held that a medical monitoring fund similar to the one requested in the instant case does constitute a common and undivided interest which must be viewed in the aggregate for determining the amount in controversy. See In re Rezulin Products Liability Litigation, 168 F. Supp.2d 136 (S.D.N.Y. 2001) ("Rezulin II"); Katz v. Warner-Lambert Co., 9 F. Supp.2d 363 (S.D.N.Y. 1998); In re Diet Drugs Products Liability Litigation, 1999 WL 673066 (E.D. Pa.).
In Katz v. Warner-Lambert Co., 9 F. Supp.2d at 363, plaintiffs in a suit against the makers of Rezulin, a drug used to treat diabetes, demanded that defendant warn users of the potential harms from Rezulin, regularly monitor users for such harms, and fund research to develop cures for said harms. Id. at 364. In In re: Diet Drugs Products Liability Litigation, 1999 WL 673066 (E.D. Pa), plaintiffs sued the makers of several popular diet drugs. They sought equitable relief including: creation of a medical "registry" for class members in which relevant demographic, medical and scientific information concerning class members would be recorded; a state-of-the-art echocardiogram for each class member; full cardiopulmonary examinations including a chest x-ray and electrocardiograms for each class member; medical research concerning the incidence, prevalence, natural course and history, diagnosis and treatment of diet drug induced valvular heart disease; accumulation and analysis of relevant medical demographic information from class members including, but not limited to, the results of echocardiograms and cardiopulmonary examinations performed on class members; and publication and dissemination of such information to members of the class and their physicians. Id. at *3 Finally, in In re: Rezulin Products Liability Litigation ("Rezulin II"), plaintiffs sought a court supervised medical monitoring trust fund to provide for a medical monitoring program that would include: locating persons who use or used Rezulin and notifying them of the drug's potential harm; gathering and forwarding to treating physicians information related to the diagnosis of injuries that might result from the use of Rezulin; and ongoing testing and monitoring of Rezulin users. Id. at 151.
In each of these cases, the court found that a claim for a medical monitoring and research fund was injunctive in nature. Where injunctive relief is requested, the amount in controversy is measured by the value of the object of the litigation measured from the plaintiffs perspective. Ericsson GE Mobile Communications, Inc. v. Motorola Communications Elecs., Inc., 120 F.3d 216, 218-20 (11th Cir. 1997). "In other words, the value of the requested injunctive relief is the monetary value of the benefit that would flow to the plaintiff if the injunction were granted." Cohen v. Office Depot, Inc., 204 F.3d 1069, 1077 (11th Cir. 2000).
The Katz court determined that, while the benefit to any individual member of the class is speculative because no one knows how much benefit any given plaintiff might derive from a medical monitoring fund, it is appropriately measurable as the cost to the defendant of creating such a fund, or at least the research portion of it. Katz v. Warner-Lambert Co., 9 F. Supp.2d at 364-65. Without such research expenditure, no plaintiff would be likely to receive any research benefit. Id. at 365. Accordingly, the court declared, "there is no question here of dividing the cost by the number of plaintiffs in the putative class to determine the value to each individual plaintiff . . . because the full amount of the research must be funded to benefit any single member of the contemplated class." Id. Thus, in Katz and in the other cases cited by Defendants which adopted the reasoning of Katz, the courts found that the medical monitoring and research funds met the "common fund" exception.
The Eleventh Circuit has not dealt with a medical monitoring fund, but it has specifically rejected the premise that where the value to an individual plaintiff of requested injunctive relief is speculative, the value may be measured by the cost to the defendant of providing such relief. Morrison v. Allstate Indemnity Company, 228 F.3d 1255, 1268 (11th Cir. 2000). In fact, it has declared that for determining the amount in controversy, the costs borne by a defendant in complying with an injunction are "irrelevant." Id. n. 9 (citing Cohen v. Office Depot, Inc., 204 F.3d at 1079 n. 8). In the instant case, as in Katz, the value to Plaintiff of the requested relief is speculative. Accordingly, for purposes of establishing diversity jurisdiction, the amount in controversy may not be determined by valuing the cost to the Defendants of providing the requested relief.
Even if Eleventh Circuit law allowed the defendant's cost in providing relief to be considered in determining the amount in controversy, Defendants in the instant case have provided no information to support their contention that the medical monitoring fund requested would exceed $75,000. In contrast, in Katz the parties conceded that more than $75,000 would have to be expended to fund the research requested.Katz, F. Supp.2d at 365. Also, in Rezulin II defendants submitted an affidavit from the world's largest insurance broker and provider of health and employment benefits administration, which was familiar with the cost of court administered medical monitoring programs and had prepared bid packages for such programs. The affidavit stated that the base cost for the monitoring program sought in Rezulin II would exceed $75,000. Rezulin II, 168 F. Supp.2d at 153.
Additionally, the Eleventh Circuit has declared that aggregation is determined by the right asserted, not the relief requested. (emphasis added). Id. at 271. Thus, when an injunction protects rights that are separate and distinct among the plaintiffs, the value of the injunction to the plaintiffs may not be aggregated to sustain diversity jurisdiction. Id. In the instant case, the rights of potential individual plaintiffs to medical monitoring and treatment are separate and distinct. Each potential plaintiff received differing amounts of OxyContin and will have a differing need for medical monitoring. Some may require little or no monitoring and treatment, while others may require a great deal. Under those circumstances, the Eleventh Circuit has determined that, for purposes of aggregation, it is irrelevant that multiple insureds choose to remedy the alleged violation of their separate and distinct rights through a joint request for injunctive relief Id.
Based on the foregoing, the Court finds that Defendants have not shown by a preponderance of the evidence that the amount in controversy exceeds $75,000.00. Accordingly, Defendants have not shown that diversity jurisdiction resides in this Court.
2. Federal Question Jurisdiction
The presence of federal question jurisdiction is governed by the "well pleaded complaint" rule. Merrell Dow Pharmaceuticals. Inc. v. Thompson, 478 U.S. 804, 808 (1986). Pursuant to this rule, a case "arises under" federal law, and is therefore removable, only if a federal claim exists on the face of the plaintiff's complaint. Id. The fact that the plaintiffs state law claims may be preempted by federal law is insufficient to confer federal jurisdiction, and therefore removal is improper if based on a defense which implicates federal law. See Caterpillar Inc., v. Williams, 482 U.S. 386, 392 ("The fact that a defendant might ultimately prove that a plaintiff's claims are preempted does not establish that they are removable to federal court.").
However, courts have recognized two exceptions to this well-pleaded complaint doctrine. The first is sometimes referred to as the "substantial federal question" doctrine. In certain cases, the Supreme Court has held that a state law cause of action actually arises under federal law "where the vindication of a right under state law necessarily turns on some construction of federal law." Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 9 (1983). The second is the "complete preemption" doctrine. This doctrine requires more than the mere presence of even a substantial federal question. Complete preemption arises when Congress intends a federal statute to preempt a field of law so completely that state law claims are considered converted into a federal cause of action. Metropolitan Life Insurance Company v. Taylor, 481 U.S. 58, 63-65 (1987); Caterpillar v. Williams, 482 U.S. at 393 ("On occasion, the Court has concluded that the pre-emptive force of a statute is so `extraordinary' that it `converts an ordinary common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.'").
The complete preemption doctrine has been invoked by the Supreme Court in only two cases, Avco Corp. v. Aero Lodge 735 Int'l Assoc. of Machinists Aerospace Workers, 390 U.S. 557 (1967, and Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 (1987). In Avco, the Court addressed the nature of a state law claim that was virtually identical to one actionable under § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. Section 301 specifies that suits for violations of contracts between the collective bargaining unit and the employer, or between collective bargaining units themselves, are actionable in federal court. In Metropolitan Life, the federal provision at issue was § 502(a)(1)(b) of the Employee Retirement Income Security Act ("ERISA"). Section 514(a) of ERISA states that "this subchapter and subchapter III of this chapter shall supercede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan." Based on this language, the Court held that Congress had made clear that, as with § 301 of the LMRA, "any action" that could be filed pursuant to § 502(a)(1)(B) of ERISA "arises under" federal law and is removable. Id. at 65-66. Thus, the Court reemphasized that complete preemption exists only exists where Congress has clearly manifested an intent to make causes of action under a federal statute removable to federal court. Id. at 66
In the instant case, Defendants argue that Plaintiff's claims raise substantial issues of federal law because they ask a state court for injunctive relief that would displace the Congressionally mandated role of the FDA in the approval, marketing, manufacturing, and distributing of OxyContin. Defendants assert that the sweeping injunctive relief sought by Plaintiff "strikes at the heart of a complex federal regulatory process and squarely raises a federal question." (Defendants' Motion in Opposition to Remand, Doc. No. 36, p. 18). Defendants cite the Federal Drug and Cosmetic Act ("FDCA") and the Controlled Substances Act as the basis for their claim of federal jurisdiction (Notice of Removal at 7-10, ¶ 8(a)-(d), Doc. No. 1).
Although Defendants do not explicitly claim that Plaintiff's claims fall under the complete preemption doctrine, they imply that such is the case by stating, inter alia, that Plaintiff seeks to "displace the Congressionally mandated role of the FDA"; that the injunctive relief Plaintiff seeks would "strip the FDA of its explicit authority"; and that the "breadth and sweep of Plaintiff's attempt to usurp the federal system," cannot be overemphasized. (Defendant's Memorandum in Opposition to Remand, p. 17, Doc. No. 36).
In Merrell Dow Pharmaceuticals, Inc. v. Thompson. 478 U.S. 804 (1986), the Supreme Court addressed the issue of whether violations of the FDCA presented a "substantial federal question." In Merrell Dow the plaintiffs had brought suit in state court against the manufacturer of the drug Bendectin, alleging that the manufacturer's violation of the FDCA constituted negligence. Damages were sought on common-law theories of negligence, breach of warranty, strict liability, fraud, gross negligence and alleged "misbranding" of the drug. Id. at 804. The Court noted that there was no federal cause of action for violations of the FDCA, and emphasized the importance of this factor in what it characterized as the "well settled framework for evaluating whether a federal cause of action lies." Id. at 811. "The significance of the . . . assumption that there is no federal cause of action cannot be overstated," the Court said. United States District Judge. Id. at 812. That Congress omitted a private right of action is "tantamount to a congressional conclusion that the presence of a claimed violation of the statute as an element of a state cause of action is insufficiently `substantial' to confer federal-question jurisdiction." Id. at 814. Where Congress has not provided a private federal remedy for violation of a statute, it would "flout" or at least "undermine" congressional intent for the courts to provide such a remedy. Id. at 812.
In the instant case, m order to prevail under either the substantial federal question doctrine or the complete preemption doctrine, Defendants would have to show that the FDCA or CSA created the rights Plaintiff seeks to vindicate and a private cause of action to enforce such rights. Defendants fail to show that Congress clearly intended for removal jurisdiction to be available under either statute for parties defending against common law claims, or state statutory claims. Accordingly, they have not established a right to removal in the instant case on federal question grounds.
Although they are not controlling, the Court notes several recent decisions involving the same corporate Defendants and factually similar claims where removal jurisdiction on the federal question basis was denied. See McCallister v. Purdue Pharma, L.P., 164 F. Supp.2d 783 (S.D.W. Va. 2001); Ohler v. Purdue Pharma., L.P., 2002 WL 88945 (E.D. La. 2002); and Little v. Purdue Pharma, L.P., 227 F. Supp.2d 838 (S.D. Ohio 2002).
CONCLUSION
Based on the foregoing, the Court rules as follows:1. Plaintiff's Motion for Remand (Doc. No. 17) is GRANTED.
2. Plaintiff's Motion for Permission to File a Reply Memorandum in Support of Plaintiff's Motion for Remand (Doc. No. 39) is DENIED.