Opinion
3-03-CV-1576-L
December 3, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's orders of reference on November 20, 2003, came on to be heard Defendant Wyeth-Ayerst Laboratories Division of American Home Products Corp. (Wyeth)'s Motion to Stay All Proceedings Pending Transfer to MDL-1203 filed on July 14, 2003, and Plaintiff's Opposed Motion to Remand filed on July 28, 2003, and having considered the relevant pleadings and the attachments thereto and the arguments presented by counsel at the hearing the magistrate judge makes the following findings and recommendation:
Plaintiff filed this case in the 191st Judicial District Court of Dallas County, Texas, against Wyeth and others, including Otto F. Puempel, D.O., and Patrick Joseph Kirlin, D.O. — both of whom are citizens of Texas. In her petition Ms. Speaker alleges claims predicated on injuries sustained by Pondimim and/or Redux, prescription diet medications formerly distributed by Wyeth.
On July 14, 2003, Wyeth removed the case to this court, arguing that the non-diverse defendant doctors were fraudulently joined. On the same date it filed its motion to stay all proceedings in this court. Plaintiff in turn filed her motion to remand on July 28, 2003.
In its motion to stay Wyeth contends that the non-diverse defendants were fraudulently joined, that claims regarding injuries allegedly caused by the use of Pondimin and Redux are the subject of an MDL proceeding pending in MDL-1203 assigned to the District Court for the Eastern District of Pennsylvania, and that this action should be transferred to the MDL court for a decision on the fraudulent joinder issue. Plaintiff opposes the transfer on the basis that a transfer would unduly delay a decision on the fraudulent joinder issue as well as a decision on her motion to remand.
Although Wyeth's argument that transfer of this case to the MDL court will insure uniformity in decision and avoid potential conflicting opinions has some facial appeal, there are other factors which suggest that this court should address the merits of Wyeth's fraudulent joinder issue and Plaintiff's motion to remand. A number of Texas federal courts have agreed with Wyeth's argument and have transferred cases to the MDL court. Other Texas federal courts have ruled on the merits of Wyeth's fraudulent joinder claim. In the magistrate judge's opinion at least two factors support my view that the fraudulent joinder motion to remand issues should be addressed in this forum. At this juncture I am informed that the MDL court has not yet addressed the fraudulent joinder issue in the context of Texas state substantive law. Therefore any decision expressed by this court will not create a conflict. Secondly, there exists no principled reason why this court cannot construe and apply Texas substantive law as adequately as the MDL court sitting in Pennsylvania. In fact, arguably this court is in a better position to address Texas substantive law than the MDL court. Finally, were this court to transfer this case to the MDL court, there may be an extended period of time before that court can rule on these issues, given that it is called upon to apply the substantive law of multiple states with respect to diet drug claims before it. Accordingly, the magistrate judge is of the opinion that the District Court should decide the issues raised by the parties with respect to fraudulent joinder and remand.
The undisputed facts establish that Plaintiff was seen by Drs. Puempel and Kirlin in doctor-patient relationships in 1995, the sole purpose of which was to obtain weight loss prescription medications manufactured by Wyeth. The last prescriptions for the medications were issued by these doctors prior to the end of 1995. In May 2002 an echocardiogram performed on Plaintiff resulted in a report which diagnosed moderate mitral regurgitation. Plaintiff filed her original petition in state court on May 29, 2003.
Wyeth contends that any claims which Plaintiff could have brought against either doctor are time barred. In addressing this issue the court considers it pertinent to make two observations. Although all defendants in this action have not consented to Wyeth's removal, such is not necessary when removal is based upon a claim of fraudulent joinder of non-diverse defendants. E.g. see Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 815 (5th Cir. 1993). The magistrate judge is equally mindful that in evaluating Wyeth's assertion of fraudulent joinder, any unchallenged or contested issues of fact and any ambiguities of state law must be resolved in Ms. Speaker's favor. Travis v. Irby, 326 F.3d 644, 649 (5th Cir. 2003). However, the court must determine whether there is a reasonable basis, not merely a theoretical one, for predicting that state law might impose liability. See Ross v. Citifinancial, Inc., 344 F.3d 458, 462 (5th Cir. 2003) (citations omitted).
In support of its claim that any claims against the prescribing doctors are barred by limitations, Wyeth relies on the provisions of art. 459Oi of the Medical Liability Insurance Improvement Act. Tex.Rev.Civ.Stat.Ann. art. 459Oi, § 10.01 (Vernon Supp. 2003). Under the express language of the statute as interpreted by the Texas Supreme Court,E.g. see Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001), the limitations period expired no later than the end of calendar year 1997, two years after the last prescription was issued by either doctor. Ms. Speaker does not seriously join issue on the time limit set out in art. 459Oi but rather argues that the open-courts doctrine predicated on Art. I, § 13 of the Texas Constitution creates an exception to the limitations period, and that she is entitled to bring claims against the doctors based upon the affirmative defense of fraudulent concealment to a limitations bar. Although both the open-courts doctrine and fraudulent concealment constitute defenses to claims that would otherwise be barred by limitations, the rationales for each are premised on different principles.
Effective September 1, 2003, § 74.251. Statute of Limitations on Health Care Liability Claims, Tex.Civ.Prac. Rem. Code, replaced § 10.01. However, this revision made no substantive changes in the limitations period.
Plaintiff also points out that Wyeth has waived limitations as a defense to claims which have been assigned to the MDL court. However, this fact does not estop Wyeth from showing that non-diverse defendants, named in the present action, are fraudulently joined because any claims against such defendants are barred by limitations.
Fraudulent concealment is based on the equitable principle that an alleged wrongdoer is estopped from asserting a limitations defense when his affirmative conduct in concealing the wrongdoing has misled the injured party in learning of the existence of conduct which would constitute an actionable claim. In the context of a claim that a physician has committed malpractice the Texas Supreme Court laid down the elements of fraudulent concealment in Earle v. Ratliff, 998 S.W.2d 882 (Tex. 1999). The opinion makes clear that the concealment must have occurred during the existence of a doctor-patient relationship and that "proof of fraudulent concealment requires more than evidence that the physician failed to use ordinary care; it also requires evidence the that defendant actually knew the plaintiff was in fact wronged, and concealed that fact to deceive the plaintiff.)Id. at 888.
In the present case it is undisputed that any doctor-patient relationship between Ms. Speaker and either of the two defendant doctors terminated with the issuance of prescriptions for Pondimim and/or Redux in 1995. There is no claim that Plaintiff ever communicated with either doctor following the termination of the doctor-patient relationship.
In her petition Plaintiff alleges that on a date after fen-phen products were withdrawn from the market on September 15, 1997, the United States Department of Health and Human Services issued a recommendation that all patients for whom such products were prescribed be given an echocardiogram and that the defendant doctors failed to advise her to undergo such a procedure. See Plaintiff's Original petition at pages 24-34 (Counts Six and Seven).
The recommendations alleged in Plaintiff's complaint post-dated the end of the doctor-patient relationship between Plaintiff and either doctor by at least 20 months. Her suggestion that the substantive law of Texas would recognize a duty on the part of a medical care provider to inform all patients — past and present — whenever opinions are expressed that a prescription drug may have deleterious side effects is wholly theoretical and contradicts the Texas Supreme Court's decision inEarle v. Ratcliff, supra, particularly when a patient, in the face of extensive publicity, discussed, infra, could have easily contacted the prescribing physician.
On a purely practical level, given the changes of residences which occur with former patients, efforts to contact former patients would often prove fruitless. On the other hand, it is clear that Ms. Speaker had no difficulty in locating and effecting service of process on the defendant doctors.
Moreover, consistent with the requirement that the facts be viewed in Ms. Speaker's favor, assuming that each doctor was aware of the HHS recommendation and other post-September 1997 literature raising questions concerning possible harmful effects of fen-phen products, their failures to notify her of these reports at most constituted negligent omissions on their parts, which falls short of showing that either had "actual knowledge that a wrong . . . occurred." Earle. supra, at 889. The absence of any communications at all further undermines any claim that either doctor concealed facts to deceive Plaintiff.
Therefore, as a matter of law Plaintiff cannot rely on a theory of fraudulent concealment to avoid having her claims against the non-diverse doctor defendants being barred by limitations.
Plaintiff also asserts that the open courts provision of the Texas state constitution permits her to bring her action against the non-diverse doctors beyond the two-year limitations period. This provision applies "only if it would be impossible or exceedingly difficult to discover the injury" within the limitations period. O'Reilly v. Wiseman, 107 S.W.3d 699, 702 (Tex.App. — Austin 2003, pet. denied) (Emphasis added). TheO'Reilly court noted some lack of clarity as to which party bears the burden of proof when a plaintiff seeks to rely on the open courts doctrine. However, this court is limited to the question of whether Ms. Speaker can make a colorable claim for application of the rule to assert claims against the non-diverse defendants.
Wyeth argues that the widespread publicity which accompanied the withdrawal of its products from the market precludes any colorable basis for a finding that it would have been impossible or exceedingly difficult for Plaintiff to discovery her injury caused by her ingestion of the prescription diet drugs. In support of its argument it has submitted numerous reports which appeared in the national and local print and broadcast media at the time Pondimim and Redux were taken off the prescription drug market. See Defendant's Notice of Removal, Exhibits 3 through 45. In addition Defendant has submitted copies of attorney ads published in the Dallas Morning News in October, November and December 1997. Id. Exhibits 24-26.
The media coverage prominently reported possible links to heart conditions caused by the drugs and covered the period from September 15, 1997 into November 1997, followed by stories regarding lawsuits in August 1999 in which a jury found Wyeth's predecessor liable. In the face of the veritable blizzard of publicity concerning the withdrawn of the drugs and the possible injuries which resulted, particularly in the fall of 1997, there is no reasonable possibility that a Texas court would find that it was impossible or exceedingly difficult for Ms. Speaker to have discovered her injury no earlier than two years prior to the date on which she filed her petition in state courts.
Even if it be assumed arguendo that Plaintiff's claim of fraudulent concealment were viable, it would no longer constitute a defense to a limitations bar once she otherwise had a reasonable opportunity to discover the alleged wrong and bring suit before the limitations period expired. Earle v. Ratcliff, Supra, 998 S.W.2d at 889.
Plaintiff has also included media reports in her exhibits.See Appendix to Plaintiff's Brief in Support of Opposed Motion to Remand. Exhibit 7. She contends that these reports permitted a reasonable person to have concluded that additional follow up was unnecessary. See Plaintiff's Brief at page 13, n. 1. Aside from the fact that they post-date the substantial media coverage with respect to the withdrawal of the drugs, many of these reports do not appear to have been disseminated to the public at large and in other instances appear to have been published in the San Jose, California Mercury News. The fact that some of the reports contained attributions to Wyeth personnel or to doctors who undertook studies underwritten by Wyeth expressing opinions that the drugs did not result in injuries is of no consequence in determining whether Plaintiff could have discovered her injuries. Indeed, were a pre-suit denial of liability by a potential defendant sufficient to invoke the open courts doctrine, limitations on the filing of actions would be totally eviscerated and effectively eliminated.
Ms. Speaker further claims that Wyeth itself is a non-diverse defendant. See Plaintiff's Reply to Wyeth's Response in Opposition to Plaintiff's Motion to Remand at page 5. She simply misapprehends the difference between venue for a suit against a party doing business in Texas as set out in § 15.001(a), Tex.Civ.Prac. Rem. Code for the purposes of venue and of a Texas state court's authority to exercise personal jurisdiction over a defendant party and "citizenship" as defined under 28 U.S.C. § 1332(a)(1). In the present case it is undisputed that Wyeth is neither incorporated in Texas, nor does it maintain its principal place of business in Texas.
Finally, Plaintiff argues that she was prohibited from bringing an action arising out of her use of Wyeth's products pursuant to PTO 1415.See Plaintiff's brief in support of her motion to remand filed on July 28, 2003, at pages 20-21. Aside from the fact that she cites no authority which would bring her within the purview and under the jurisdiction of the MDL court, her argument is fatally flawed by the fact that PTO 1415 was not entered until August 28, 2000.
RECOMMENDATION:
For the foregoing reasons it is recommended that the District Court find that Plaintiff's claims against Defendants Otto F. Puempel and Patrick Joseph Kirlin are barred by limitations and that they are therefore fraudulently joined as defendants in this action and that the court enter its order denying Plaintiff's Opposed Motion to Remand and order that the action be transferred to the District Court for the Eastern District of Pennsylvania (MDL No. 1203) for further proceedings.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.