Summary
finding that plaintiff fraudulently joined a pharmacy that was merely a distributor of a product
Summary of this case from In re Prempro Products LiabilityOpinion
CASE NO. CV-01-J-2303-NW
October 2, 2001
MEMORANDUM OPINION and ORDER
This action is before the court on the plaintiffs' motion to remand (doc. 5) and defendant Redmont Pharmacy, Inc.'s motion to dismiss (doc. 3). The plaintiffs have filed a supplemental brief in support of their motion to remand.
The plaintiffs filed this action in the Circuit Court of Franklin County, Alabama under the Alabama Extended Manufacturer's Liability Doctrine and other state law theories to recover for injuries sustained by Andrew Wiggins, the child of the plaintiffs, after his ingestion of Dimetapp, which contains Phenylpropanolamine ("PPA"). Plaintiff's motion to remand at 1. The plaintiffs assert that Deborah Wiggins purchased this product, manufactured by defendant American Home Products Corporation ("American Home"), from defendant Redmont Pharmacy ("Redmont"). Complaint at ¶ 54. This product was distributed as an over-the-counter remedy. Complaint at ¶ 4. No allegation that the prescription form of this drug was purchased is made by plaintiffs, nor do they assert that the product was purchased based on the recommendation of a pharmacist at Redmont.
American Home filed a Notice of Removal (doc. 1), asserting that complete diversity exists among all properly joined parties as defendant Redmont was fraudulently joined. Notice of Removal at ¶¶ 3, 7. American Home also asserts that the amount in controversy exceeds $75,000.00 exclusive of interest and costs, giving this court jurisdiction pursuant 28 U.S.C. § 1332. Notice of Removal at ¶ 3. The plaintiffs do not claim that the amount in controversy is less than the jurisdictional minimum.
When fraudulent joinder is alleged, the Eleventh Circuit has placed on the defendant the burden of showing that the plaintiff has no possible cause of action under Alabama law, based upon the allegations of the complaint. Cabalceta v. Standard Fruit Company, 883 F.2d 1553, 1562 (11th Cir. 1989) (where district court found "no possibility" that plaintiffs would be able to state a colorable cause of action against the resident defendant). The removing party bears the burden of proving that the joinder of the resident defendant was fraudulent. Pacheco de Perez v. ATT Co., 139 F.3d 1368, 1373 (11th Cir. 1998); Triggs v. John Crump Toyota, Inc., 154 F.3d 1284 (11th Cir. 1998). "Joinder has been deemed fraudulent in two situations. The first is where there is no possibility that the plaintiff can prove a cause of action against the resident (non-diverse) defendant. The second is when there is outright fraud in the plaintiff's pleading of jurisdictional facts." Triggs, 154 F.3d at 1287. "The burden of the removing defendant is a `heavy one.' To determine whether the case should be remanded, the district court must evaluate the factual allegations in the light most favorable to the plaintiff and must resolve any uncertainties in favor of the plaintiff." Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997).
American Home asserts that the plaintiffs cannot prove a cause of action against Redmont under the facts before this court. American Home states that Redmont is a "healthcare provider" as that term is used in the Alabama Medical Liability Act, § 6-5-542, Alabama Code 1975, as amended. Notice of Removal at ¶ 9. As such, the only cause of action the plaintiff may bring against Redmont is for a breach of the standard of care. Notice of Removal at ¶¶ 9, 10. The plaintiff, however, sues under the AEMLD, as well as stating claims for failure to warn, breach of warranty, negligence, wantonness, fraud, misrepresentation, and suppression against both defendants. Plaintiff's motion to remand at 2. No claim for breach of the standard of care is stated. Id.
The plaintiffs argue that Cackowski v. Wal-Mart Stores, Inc., 767 So.2d 319 (Ala. 2000), on which American Home relies, only addressed the issue of whether a pharmacy is a "health care provider" when a suit has been filed for negligent filling of a prescription. Plaintiff's motion to remand at 2. The plaintiff thus states it may bring a product liability action against Redmont as part of the chain of distribution and commerce, and not health care. Plaintiff's motion to remand at 3.
The plaintiff relies on the case of Skelton v. Druid City Hospital, 459 So.2d 818 (Ala. 1984) for the proposition that a pharmacy is a "seller" of the product it distributes under the AEMLD because a hospital is a "seller" of products it distributes pursuant to U.C.C. § 7-2-135. The plaintiff seems to be arguing that the pharmacy here, because it distributed a prepackaged-over-the-counter drug, should be treated as any other retail store selling someone else's product. The court considers the motion to remand under this allegation.
To establish liability under the AEMLD, the plaintiff must prove:
(1) he suffered injury or damage to himself or his property by one who sells a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer, if:
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.Casrell v. Altec Industries, Inc. 335 So.2d 128, 132-33 (Ala. 1976). The affirmative defense of lack of causal relation is available in AEMLD cases. Brock v. Baxter Healthcare Corp., 96 F. Supp.2d 1352, 1356 (S.D.Ala. 2000).
The Eleventh Circuit has stated that 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 the joinder was proper and remand the case to state court. Triggs, 154 F.3d at 1287. Thus, the question before this court is whether, in the light most favorable to the plaintiff, the plaintiff has plead facts sufficient to state a claim against Redmont under the AEMLD. If not, Redmont has been fraudulently joined.
"As long as there is a causal relationship between the defendant's conduct and the defective product, he is held liable because he has created an unreasonable risk of harm." Casrell, 335 So.2d at 132. The plaintiffs seek to impose liability upon Redmont as a distributor. Given this stance, the court notes that the fact Redmont is a pharmacy, run by a pharmacist, is not central to the plaintiffs' claim. Unlike prescription medication, over the counter Dimetapp is available not only from pharmacies but from grocery stores, discount stores, and in some cases convenience stores. As such, given plaintiffs' claim that Redmont is sued as a distributor, plaintiffs' can state no greater claim against Redmont then if they purchased the Dimetapp from their local grocery store. In other words, the court is lead to the conclusion that, while the plaintiffs contend that the owner of Redmont pharmacy, as a pharmacist, should have had knowledge superior to theirs about Dimetapp, this is not why they are suing him. Rather, to state a claim under the AEMLD, the plaintiffs sue Redmont as a retail store, and not a health care provider.
The court thus considers whether the owner of a grocery store could be sued under the plaintiffs' theory, and concludes not. The court also considered that, under the plaintiffs' theory that Redmont is a distributor, Redmont, or any business for that matter, could be sued for the sale of any of the products it sells. For example, many pharmacies also sell garden hoses. Under the plaintiffs' theory, a suit against a pharmacy as a distributor of garden hoses would be allowed to stand. The court notes that this quickly leads to an illogical world of lawsuits where all businesses open themselves to liability for the sale of any product.
The cases upon which plaintiffs rely are distinguishable. In Kelly v. Trigg Enterprises, Inc., 605 So.2d 1185 (Ala. 1992), the Court held that summary judgment was inappropriate for the seller of a product because of the possibility that the jury could find a product sold as an air freshener was really intended for use as an inhalent, and thus the seller was not entitled to summary judgment on the grounds the plaintiff misused the product in using it as an inhalent. Id. at 1191-1192. In Dillard v. Pettway, 719 So.2d 188 (Ala. 1998), the seller of smoke alarms did not stock them for sale. Rather, the seller purchased the smoke detector for the consumer, opened it, explained how to use it and where to install it. Id. at 191.
In their supplemental brief, the plaintiffs also cite to Pace v. Parke Davis, CV 00-J-3046-NW, where this court held that a doctor who prescribed a medication for a patient could possibly be found liable for injuries based on the taking of that prescription drug. The plaintiffs there alleged that after prescribing the medication in question, the doctor failed to monitor his patient. This too is distinguishable from the case before this court, where all the plaintiffs allege is that they purchased the product in question from Redmonont.
The court finds that the plaintiff's allegations of knowledge about PPA are stated in the singular and clearly refer to the manufacturer of Dimetapp, not the retail seller of this product. See Complaint at ¶¶ 41-51.
In consideration of the foregoing, the court finds no causal relationship between Redmont's sale of the product and the plaintiffs' injuries. The plaintiffs allege no action by Redmont as a retail store which contributed to the harm alleged. See Baxter, 96 F. Supp.2d at 1358; Wakeland v. Brown Williamson Tobacco Corp., 996 F. Supp. 1213, (S.D.Ala. 1998). This court notes that this case is factually similar to Wakeland v. Brown Williamson Tobacco Corp., 996 F. Supp. 1213 (S.D.Ala. 1998). That court considered in some depth each element of the lack of casual relation defense. Id. at 1219. In respect to "superior opportunity to inspect" the product, the court noted that such opportunity must be a meaningful one. "If the defect was latent and could not be discovered by either consumer or distributor by a reasonable inspection, neither had a superior opportunity . . . (citations omitted). Id. at 1220. The plaintiffs make no allegation of a specific, reasonable method by which Redmont could have discovered the allegedly defective nature of Dimetapp or PPA in general.
For example, no allegation that Redmont Pharmacy did testing or analysis on the product in question is made. No allegation that Redmont Pharamey had knowledge that PPA could cause the alleged injuries is made. In fact, the plaintiffs make no specific allegation against Redmont Pharmacy at all in any of the eight counts of the complaint.
The plaintiffs have failed to state a cognizable claim against Redmont that could be pursued under the AEMLD. As such, this court finds that the joinder of resident defendant Redmont was fraudulent and the motion to remand must be denied. See Triggs, 154 F.3d at 1287; Wakeland, 996 F. Supp at 1221 ("If plaintiffs were unable at the time they formulated their complaint to set forth any specific factual allegations against the distributor defendants upon which could be based any claim for fraud or breach of warranty, there can be no better admission of fraudulent joinder").
Having found that the plaintiff has stated failed to a claim against the non-diverse defendant, this court must disregard the citizenship of Redmont and thus concludes that complete diversity exists. The amount in controversy exceeds the sum of $75,000.00 exclusive of interests and costs. As such, this court has subject matter jurisdiction over this civil action pursuant to U.S. Const. Art III, § 2 and 28 U.S.C. § 1332(a).
It is therefore ORDERED by the court that the plaintiffs' motion to remand (doc. 5) be and hereby is DENIED. The defendant Redmont's motion to dismiss (doc. 3) is GRANTED.