Opinion
Civil Action No. 02-8283
April 17, 2003.
Presently pending before this Court is the Motion to Remand filed by Plaintiffs Joann and Donald Walsh in which Plaintiffs argue that the instant action was improperly removed from the Court of Common Pleas in Philadelphia County. Plaintiffs contend that this Court does not have subject matter jurisdiction over the matter since there is not diversity among the parties and ask this Court to remand the matter to state court. For the following reasons, Plaintiffs' motion will be granted.
I. BACKGROUND
Plaintiffs Joann and Donald Walsh, both citizens of the Commonwealth of Pennsylvania, commenced this action against Defendants, David Tabby, D.O. ("Dr. Tabby"), Purdue Pharma, L.P. ("Purdue"), and Rite Aid Pharmacy ("Rite Aid") by filing a Writ of Summons on June 10, 2002. Plaintiffs then filed a Complaint in the Court of Common Pleas of Philadelphia County on October 7, 2002, alleging that Joann Walsh ("Walsh") became addicted to the prescription drug OxyContin and suffered physical, mental and emotional injuries as a result of her addiction. In her Complaint, Walsh alleges the following: failure to obtain informed consent against Dr. Tabby; negligent misrepresentation against Purdue; and negligence, failure to adequately warn, strict liability, breach of express and implied warranty and negligence per se against Dr. Tabby, Purdue and Rite Aid.
The pertinent facts as alleged in Walsh's Complaint are as follows. Walsh began medical treatment with Dr. Tabby in 1996 after she was diagnosed with Reflex Sympathetic Dystrophy ("RSD") as a result of injuries sustained from her stepping on a nail. Initially, Dr. Tabby prescribed the pain relievers Percocet and Vicodin for the pain stemming from Walsh's RSD. In January 1997, Dr. Tabby, began prescribing OxyContin for Walsh's pain. OxyContin is a prescription pain relief medication manufactured by Defendant Purdue. Plaintiff avers that Dr. Tabby assured her that OxyContin was not addictive nor could it cause damage to her liver or kidneys. In the summer of 1997, Walsh decided to have a spinal stimulator implanted in her spine in lieu of treating her RSD symptoms with OxyContin. However, the spinal stimulator failed to relieve Walsh of her pain, so Dr. Tabby recommended that Walsh begin taking OxyContin again.
Walsh continued to take OxyContin on a daily basis from 1997 until 2001. In March 1999, Dr. Tabby increased Walsh's dosage of OxyContin despite [her] concerns she expressed to him regarding reports she had read about the deadly and addictive effects of OxyContin. However, Dr. Tabby allegedly assured Walsh that her dosage was not abnormally high.
During this time period, Walsh's prescriptions of OxyContin were filled by the pharmacy at Defendant Rite Aid.
In October 2001, two agents from the Attorney General's Office approached Walsh and informed her that there was an investigation into her OxyContin use because her prescriptions were said to be abnormally high. The agents informed Walsh that they believed that she and Dr. Tabby were illegally distributing the prescription drug OxyContin. Walsh informed Dr. Tabby about the Attorney General's investigation at which time Dr. Tabby refused to further treat her or to recommend another physician for her treatment. At that point, Walsh began to wean herself off of OxyContin and eventually she admitted herself into a drug rehabilitation center in February of 2002 for her addiction to the pain reliever. Walsh alleges that she continues to suffer from injuries related to her addiction to OxyContin.
On November 1, 2002, Purdue filed a Notice of Removal of this action pursuant to 28 U.S.C. § 1441, et seq., on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332. In its Notice of Removal, Purdue, a Delaware corporation, alleges that Plaintiffs fraudulently joined Dr. Tabby and Rite Aid Corporation, both Pennsylvania citizens, in order to defeat diversity and its removal from state court. On November 29, 2002, Walsh filed a Motion to Remand the matter to the Court of Common Pleas pursuant to 28 U.S.C. § 1447(c) which provides, in pertinent part, that "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). In her motion to remand, Walsh asserts that the action was improperly removed from state court since she has pleaded viable claims against both Dr. Tabby and Rite Aid. Accordingly, Walsh contends that the joinder of the parties was proper, and, therefore, diversity is not complete because Walsh and the two Defendants, Dr. Tabby and Rite Aid, are citizens of Pennsylvania.
Section 1332(a)(1) states: "The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between — (1) citizens of different States."
II. STANDARD OF REVIEW
It is well settled Third Circuit jurisprudence that removal statutes "are to be strictly construed against removal and all doubts should be resolved in favor of remand." Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992) (quoting Steel Valley Auth. v. Union Switch Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1997) (citing Abels v. State Farm Fire Cas. Co., 770 F.2d 26, 29 (3d Cir. 1985)). The only way that Purdue may avoid remand is by demonstrating that Dr. Tabby and Rite Aid were fraudulently joined, but this requires a "heavy burden of persuasion" to make such a showing. Batoff, 977 F.2d at 851.
A court will find fraudulent joinder "where there is no reasonable 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." Id. (internal citations omitted). The district court must "focus on the plaintiff's complaint at the time the petition for removal was filed. In so ruling, the district court must assume as true all factual allegations of the complaint." Id. at 852 (citing Steel Valley, 809 F.2d at 1010). Furthermore, the court must "resolve any uncertainties as to the current state of controlling substantive law in favor of the plaintiff." Id. (internal citations omitted). Lastly, "if there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that joinder was proper and remand the case to state court." Boyer v. Snap-On Tools, Corp., 913 F.2d 108, 111 (3d Cir. 1990) (citing Coker v. Amoco Oil Co., 709 F.2d 1433, 1440-41 (11th Cir. 1983)).
III. DISCUSSION
A. Walsh's Medical Malpractice Claim Against Dr. Tabby.
Walsh alleges that Dr. Tabby committed medical malpractice by over-prescribing OxyContin for an extended period of time without advising her about the harmful side-effects associated with the pain medication, the effects of which she continues to suffer from today. While the statute of limitations for medical malpractice claims in Pennsylvania is two years, Walsh contends that the "discovery rule" should apply which tolls the statute on the date when a patient could reasonably be expected to know of the injury. See Bigansky v. Thomas Jefferson University Hospital, 658 A.2d 423 (Pa.Super. 1995). Walsh contends that although she expressed concerns to Dr. Tabby regarding her consumption of OxyContin at various times throughout his treatment of her, Dr. Tabby continued to reassure her that her doses were not abnormally high and that OxyContin was not addictive. As a result of these reassurances, Walsh argues that she did not become aware of the dangers of OxyContin until October 2001 when the two agents from the Attorney General's office approached her about the investigation into her use of OxyContin.Purdue argues that Walsh's claim against Dr. Tabby is time-barred, and that this Court should preclude the application of the discovery rule in this matter because Walsh failed to use reasonable diligence to discover her alleged injuries. However, Purdue contends that, if the Pennsylvania discovery rule applies to this situation, then the two-year statute of limitations on Walsh's claim against Dr. Tabby expired, at the latest, in March 2001, two years after Dr. Tabby increased Walsh's OxyContin prescription in March 1999.
Pennsylvania has a two year statute of limitations for medical malpractice claims. 42 Pa.C.S.A. § 5524(2). However, in medical malpractice actions, the Court may apply the discovery rule which is an exception to the two year statutory period. The discovery rule is explained as follows:
an exception to this [two year statute of] limitation[s] has been articulated by our courts in medical malpractice cases where very often the patient (and prospective plaintiff) has no reason to believe that he has suffered an injury caused by the administration of a physician's treatment. The `discovery rule' concept is premised on the concept that where the existence of an injury cannot be reasonably ascertained, the statute of limitations does not begin to run until such time as the injury's existence is known or discovered, or becomes knowable or discoverable by the exercise of reasonable diligence. Bigansky, 658 A.2d at 427 (quoting Held v. Neft, 507 A.2d 839, 841 (1986) (quotations omitted).
In applying the discovery rule, Pennsylvania courts hold that "whether a plaintiff should have made a timely discovery of his or her injury is generally an issue for the jury unless the undisputed facts lead unerringly to the conclusion that the time it took to discover an injury was unreasonable as a matter of law." Id. (citing McDonald v. Rosen, 621 A.2d 128, 130 (1993).
As explained above, the Court's inquiry when deciding whether to remand an action to state court is limited to whether the claim is "wholly insubstantial and frivolous." Batoff, 977 F.2d at 852. Therefore, as long as Walsh has pleaded a "colorable" claim against Dr. Tabby, the joinder is proper and this matter must be remanded to the Philadelphia Court of Common Pleas. An inquiry into whether or not the discovery rule should apply to this matter would require a decision on the merits of Walsh's claim against Dr. Tabby. Such an inquiry is impermissible in a motion to remand. See Boyer, 913 F.2d 108. As the Third Circuit has previously articulated when determining whether to remand an action to state court, "a claim which can be dismissed only after an intricate analysis of state law is not wholly insubstantial and frivolous that it may be disregarded for purposes of diversity jurisdiction." Batoff, 977 F.2d at 853. Accordingly, it is possible, under a more searching inquiry such as in a motion to dismiss, that a claim against a party is ultimately dismissed for failure to state a claim upon which relief may be granted without having a fraudulent joinder. Id.
In the matter sub judice, Walsh has asserted that Dr. Tabby negligently treated her medical condition and that his negligence was not discovered until October 2001. Walsh filed her cause of action in the Court of Common Pleas of Philadelphia in October 2002, well within the two year statute of limitations for such actions. After accepting the allegations in her Complaint as true and resolving any uncertainties as to the controlling substantive law in Walsh's favor, I conclude that Walsh has stated a viable claim against Dr. Tabby for medical malpractice. As a result, Purdue has failed to sustain its heavy burden that Walsh fraudulently joined Dr. Tabby. Therefore, since Walsh has pleaded a viable claim against Dr. Tabby, a Pennsylvania citizen, my inquiry ends here and this matter must be remanded to the Philadelphia Court of Common Pleas since this Court lacks subject matter jurisdiction over the matter. See Boyer, 913 F.2d 108 (holding that once the court finds a cause of action against any one of the resident defendants, the federal court must find that joinder was proper and remand the case to state court).
IV. CONCLUSION
For all the foregoing reasons, Plaintiffs' Motion to Remand is granted because Purdue has failed to prove that Plaintiffs fraudulently joined Dr. Tabby.
An appropriate Order follows.
ORDER
AND NOW, this 17th day of April 2003, upon consideration of the Plaintiffs' Motion to Remand (Doc. 7), and any responses thereto, it is hereby ORDERED that said Motion is GRANTED. The Clerk of Court shall REMAND this matter to the Court of Common Pleas in Philadelphia County and mark this case as CLOSED.