Summary
rejecting defendants' argument that the learned intermediary rule foreclosed plaintiff's strict liability suit against a pharmacist as a matter of Nevada law
Summary of this case from Little v. Purdue Pharma, L.P.Opinion
CV-S-02-0370-JCM-PAL
May 6, 2002
ORDER
On May 1, 2002, this Court conducted a hearing regarding Plaintiff's Motion for Remand and Request for Award of Attorneys in five (5) different cases, including the instant case. The Court having reviewed the motion, Defendants' Opposition to Motion to Remand, Plaintiff's Reply to Defendants' Opposition to Motion to Remand in all five (5) cases and the motions, oppositions and replies being substantially similar and all raising the same issues. The Court also having heard oral argument of counsel on May 1, 2002.
In considering motions for remand, the Ninth Circuit has stated: "[w]e strictly construe the removal statute against removal jurisdiction." SeeGaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) The Ninth Circuit has further emphasized that "the defendant always has the burden of establishing that removal is proper." Id.
In the present case, Defendants argue that the pharmacy defendant has been fraudulently joined and that, absent such defendant, diversity of citizenship exists. "When a non-diverse party has been joined as a defendant, then in the absence of a substantial federal question the removing defendant may avoid remand only by demonstrating that the non-diverse party was fraudulently joined." Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3rd Cir. 1992) A removing party who asserts that a defendant is fraudulently joined carries a "heavy burden of persuasion." Id. Joinder is fraudulent where "there is no basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendants or seek a joint judgment." Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3rd Cir. 1990); see also McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987) (A "colorable" claim against a non-diverse defendant will bar removal under the fraudulent joinder doctrine)
In evaluating a claim of fraudulent joinder, "any disputed questions and fact ambiguities in the controlling state law should be resolved in favor of the nonremoving party." Alexander v. Electronic Data Systems Co., 13 F.3d 940, 949 (6th Cir. 1994); see also Batoff, 977 F.2d at 851-52 (holding that the court must "resolve any uncertainties as to the current state of controlling substantive law in favor of the plaintiff.").
Plaintiff argues that Defendants have not met their burden of persuasion that there is "no basis in fact or colorable ground supporting" the claim against the non-diverse party in this case; the pharmacy defendant. Plaintiff relies upon Heredia v. Johnson, 827 F. Supp. 1522, 1525 (D. Nev. 1993) (J. Reed). In Heredia, the Court reasoned as follows:
Strict tort liability may be imposed upon sellers and those in the chain of distribution
as well as manufacturers for their role in placing a defective product into the stream of commerce. To the extent that the plaintiff here bases his strict liability count against Defendant Payless on the pharmacy's role in the chain of distribution, standing between the patient and the drug manufacturer and doctor, the claim is valid.Id. at 1524-1525. Plaintiff has also cited cases from other jurisdictions wherein pharmacists have been held liable under a variety of factual scenarios. See, e.g., Lasley v. Shrake's County Club Pharmacy, 179 Ariz. 583, 880 P.2d 1129, 1133 (Ariz.App. 1994); Cottam v. CVS Pharamacy, 436 Mass. 316, 320, 764 N.E.2d 814, 823 (Mass. 2002) ("Where, however, a pharmacy provides a more detailed list of warning, or, by way of advertising, promises to provide customers with information, it may thereby undertake a duty to provide complete warnings and information."); Happel v. Wal-Mart Stores, 2002 WL 440411 (Ill. 2002) (holding that a pharmacist had "a duty to warn about a known drug contraindication where the pharmacy is aware of a customer's drug allergies and knows that the medication prescribed . . . is contraindicated for a person with those allergies" and rejecting the learned intermediary doctrine because "[t]he duty we impose here is beyond the scope of the learned intermediary doctrine.")
Defendants argue that the there are numerous cases from other jurisdictions that have refused to hold pharmacists strictly liable. See, e.g., In re Rezulin Prods. Liab. Litig., 133 F. Supp.2d 272 (S.D.N.Y. 2001) (discussing the laws of several states) Plaintiff responds that Nevada law applies, that Heredia v. Johnson, supra, is the seminal case and that Defendants have not cited any Nevada case that holds that pharmacists can not be held strictly liable.
Defendants also argue that the Nevada Supreme Court has adopted the learned intermediary doctrine in Allison v. Merck Co., 878 P.2d 948 (Nev. 1994) Plaintiff relies upon the same case for the proposition that Nevada rejects the learned intermediary doctrine.
The Court has carefully examined both Heredia v. Johnson, supra, andAllison v. Merck Co., supra, and the other cases cited above. The Court finds that Defendants failed to carry their burden of persuasion that there is not a reasonable basis in fact or colorable ground for the strict liability claim against the pharmacy defendant(s). As the Court explained at the May 1, 2002 hearing, the Court believes that a pharmacist may be held liable as a distributor under Nevada law. As the Court further explained at the May 1, 2002 hearing, Allison v. Merck Co., 878 P.2d at 948, held that "[a]lthough manufacturers are not insurers of their products, for injuries caused by a defective product, responsibility is placed upon the manufacturer and the distributor of the defective product rather than upon the injured consumer." (Emphasis added)
IT IS THEREFORE ORDERED that Plaintiff's Motion for Remand is hereby granted on the grounds that this Court does not have subject matter jurisdiction based upon the claims asserted against the non-diverse defendant and this action is hereby remanded to the Eighth Judicial District Court in and for the County of Clark, State of Nevada.
IT IS FURTHER ORDERED that the request for award of attorneys fees is denied.