Brooks v. Merck & Co., Inc.

• Decision Date: 31 July 2006
• Docket Number: Civil No. 06-371-GPM.
• Citation: 443 F.Supp.2d 994
• Court: U.S. District Court — Southern District of Illinois
• Parties: Susan BROOKS, Plaintiff, v. MERCK & CO., INC., and Walgreen Co., Defendants.

443 F.Supp.2d 994

Susan BROOKS, Plaintiff, v. MERCK & CO., INC., and Walgreen Co., Defendants.

Civil No. 06-371-GPM.

United States District Court, S.D. Illinois.

July 31, 2006.

COPYRIGHT MATERIAL OMITTED

John J. Driscoll, Brown & Crouppen, St. Louis, MO, for Plaintiff.

Dan H. Ball, Robert T. Ebert, Stefan Mallen, Stephen G. Strauss, Bryan Cave, B. Matthew Struble, David A. Dick, Thompson Coburn, St. Louis, MO, for Defendants.

MEMORANDUM AND ORDER

MURPHY, Chief Judge.

This action is before the Court on the motion to remand brought by Plaintiff Susan Brooks (Doc. 13). For the following reasons, the motion is GRANTED.

INTRODUCTION

Plaintiff originally filed this action in the Circuit Court of the Twentieth Judicial Circuit, St. Clair County, Illinois, asserting claims based upon strict products liability, negligence, consumer fraud, and breach of warranty arising from personal injuries allegedly caused by Vioxx, a prescription pain medication manufactured by Defendant Merck & Co., Inc. ("Merck"). Merck subsequently removed the action to this Court, alleging that Defendant Walgreen Co. ("Walgreens"), which is, like Plaintiff, a citizen of Illinois, has been fraudulently joined to defeat federal diversity jurisdiction. Plaintiff has requested remand of the action to Illinois state court for lack of subject matter jurisdiction.

Count VI, Count VII, and Count VIII of Plaintiff's complaint allege that Walgreens filled prescriptions for Vioxx for Plaintiff and assert, respectively, claims for sale of a defective product sounding in strict products liability, breach of implied warranty, and negligent failure to warn against Walgreens. Merck contends that Plaintiff has fraudulently joined Walgreens because her claims against the diversity-defeating party are barred by the "learned intermediary" doctrine under Illinois law. Also, Merck contends that under Illinois law a sale of prescription medication does not constitute a sale of "goods" for purposes of Article 2 of the Illinois Uniform Commercial Code ("Illinois UCC"). The Court concludes that this action is due to be remanded to state court for lack of subject matter jurisdiction.

DISCUSSION

A. Merck's Request for a Stay

In opposing Plaintiff's request for remand, Merck urges the Court to stay proceedings in this action pending transfer of the action by the Judicial Panel on Multidistrict Litigation ("JPML") to a multidistrict litigation proceeding for coordinated or consolidated pretrial proceedings. See 28 U.S.C. § 1407. As Merck acknowledges, the Court retains full jurisdiction over this action until such time as a transfer order by the JPML is filed in the office of the clerk of the district court of the transferee district, in this instance the United States District Court for the Eastern District of Louisiana. See Illinois Mun. Ret. Fund v. Citigroup, Inc., 391 F.3d 844, 850 (7th Cir.2004). The decision to grant a stay rests within the Court's discretion. See Riddle v. Merck & Co., Civil No. 06-172-GPM, 2006 WL 1064070, at *1 (S.D.Ill. Apr. 21, 2006).

In Meyers v. Bayer AG, 143 F.Supp.2d 1044 (E.D.Wis.2001), the court established a framework for deciding whether to address a motion to remand or to defer consideration of the motion pending transfer of an action by the JPML. Under that framework, the court's "first step should be to make a preliminary assessment of the jurisdictional issue." Id. at 1048. If the preliminary assessment suggests that removal was improper, then the court should consider the motion to remand. See id. at 1048-49. The framework set out in Meyers is consistent with the familiar principle that a district court's "first duty in every suit" is "to determine the existence of subject-matter jurisdiction." Johnson v. Wattenbarger, 361 F.3d 991, 992 (7th Cir.2004).

The Court's initial assessment of Plaintiff's motion for remand and the response thereto filed by Merck suggests that removal was improper. Therefore, the Court concludes that it should consider the jurisdictional issues raised by the motion for remand even though Merck is attempting to have this case transferred by the JPML. See Illinois Mun. Ret. Fund, 391 F.3d at 852 ("Though some district courts stay proceedings during the interim following a conditional transfer order, . . . this is not required where the court concludes that it lacks subject matter jurisdiction."); Wisconsin v. Abbott Labs., No. 04-C-447-C, 2004 WL 2055717, at *1 (W.D.Wis. Sept. 9, 2004) (applying the Meyers framework and lifting a stay of proceedings for the purpose of considering a motion to remand, since it appeared the removal was improper, despite the JPML's conditional transfer order transferring the case). Cf. Betts v. Eli Lilly & Co., Civil Action 06-0259-WS-B, 2006 WL 1523060, at *4 (S.D.Ala. June 5, 2006) (noting that "fraudulent joinder issues are particularly poor candidates for reflexive deferral" of a decision on remand by a transferor court in favor of a transferee court, given that the transferor court is likely to have greater expertise in the issues of state law presented by such claims than does the transferee court).

B. Plaintiff's Motion to Remand

1. Legal Standard

Removal based on diversity requires that the parties be of diverse state citizenship and that the amount in controversy exceed $75,000. See 28 U.S.C. § 1332; 28 U.S.C. § 1441. See also Rubel v. Pfizer Inc., 361 F.3d 1016, 1017 (7th Cir.2004); Littleton v. Shelter Ins. Co., No. 99-912-GPM, 2000 WL 356408, at *1 (S.D.Ill. Mar. 9, 2000).¹ The party seeking removal has the burden of establishing federal jurisdiction. See Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993). "Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum." Id. Put another way, there is a strong presumption in favor of remand. See Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir. 1976). A federal court "cannot write its own jurisdictional ticket, ... but must act within the confines of constitutional as well as statutory limits on its jurisdiction," In re FedPak Sys., Inc., 80 F.3d 207, 215 (7th Cir.1996), just as such a court has a duty to investigate its jurisdiction, independent of the representations of parties. See Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 883 (7th Cir.1998); Prizevoits v. Indiana Bell Tel. Co., 76 F.3d 132, 135 (7th Cir.1996). Cf. Union Planters Bank Nat'l Ass'n v. Salih, 369 F.3d 457, 460 (5th Cir.2004).

In evaluating diversity of citizenship, a court must disregard a defendant that has been fraudulently joined. See Schwartz v. State Farm Mut. Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir.1999); Hoosier Energy Rural Elec. Coop., Inc. v. Amoco Tax Leasing IV Corp., 34 F.3d 1310, 1315 (7th Cir.1994); Smith v. Shipping Utils., Inc., No. Civ. 05-500-GPM, 2005 WL 3133494, at *1 (S.D.Ill. Nov. 23, 2005). A defendant is fraudulently joined when "there is no possibility that a plaintiff can state a cause of action against [the] nondiverse defendant[] in state court, or where there has been outright fraud in plaintiff's pleading of jurisdictional facts." Gottlieb v. Westin Hotel Co., 990 F.2d 323, 327 (7th Cir.1993). See also Hauck v. ConocoPhillips Co., Civil No. 06-135-GPM, 2006 WL 1596826, at *2 (S.D.Ill. June 6, 2006); Katonah v. USAir, Inc., 868 F.Supp. 1031, 1034 (N.D.Ill.1994). A defendant seeking removal based on alleged fraudulent joinder has the "heavy" burden of proving that, after the court resolves all issues of law and fact in the plaintiff's favor, there is no possibility the plaintiff can establish a cause of action against the diversity-defeating defendant in a state court. Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir.1992). See also Bavone v. Eli Lilly & Co., Civil No. 06-153-GPM, 2006 WL 1096280, at *2 (S.D.Ill. Apr. 25, 2006); Durham v. Shiley Inc., No. 91 C 7999, 1994 WL 583351, at *2-3 (N.D.Ill. Oct. 21, 1994).

2. Fraudulent Joinder

In previous decisions the Court has expressed skepticism about whether it is proper for a drug manufacturer to assert fraudulent joinder as to a pharmacy on the basis of the learned intermediary doctrine, given that the defense is one that applies equally as between diverse defendants, in this case Merck, and non-diverse defendants in this case Walgreens. See, e.g., Riddle, 2006 WL 1064070, at *3; Rutherford v. Merck & Co., 428 F.Supp.2d 842, 849 (S.D.Ill.2006). This skepticism has now ripened into a firm conviction that it is not.

Under Illinois law, the learned intermediary doctrine is fundamentally a device for shifting liability for harm caused by a product, such as a prescription drug, onto doctors and away from others in the product's chain of distribution. "The learned intermediary doctrine ... can relieve a drug manufacturer of liability for adverse effects of its drugs .... An adequately informed physician acts as learned intermediary between the patient and the drug manufacturer, thus breaking the chain of liability." Ashman v. SK & F Lab Co., 702 F.Supp. 1401, 1404 (N.D.Ill.1988) (applying Illinois law). See also Koncz v. Burroughs Wellcome Co., No. 92 C 5797, 1994 WL 178320, at *3 (N.D.Ill. May 9, 1994) (applying Illinois law) ("The gist of the learned intermediary doctrine is that when informed physicians make decisions to prescribe drugs to their patients, they break the chain of liability."). Cf. Martin v. Merck & Co., No. S-05-750 LKK/PAN, 2005 WL 1984483, at *4 (E.D.Cal. Aug. 15, 2005) (explaining that the learned intermediary doctrine "exempts from liability those in the chain of prescription drug distribution when adequate warning has been given to physicians about the potential dangers of the medication.") (applying California law).

Under Illinois law the immunity of a pharmacist under the learned intermediary doctrine is coextensive with that of a drug manufacturer under the doctrine, on the theory that only a physician, not a manufacturer or pharmacist,...