702 F.Supp. 19 (D.Mass. 1988), Civ. A. 88-974, Garside by Garside v. Osco Drug, Inc.

Docket Nº:Civ. A. 88-974
Citation:702 F.Supp. 19
Party Name:Garside by Garside v. Osco Drug, Inc.
Case Date:December 15, 1988
Court:United States District Courts, 1st Circuit, District of Massachusetts
 
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Page 19

702 F.Supp. 19 (D.Mass. 1988)

Milissa GARSIDE, By her next friend Maryanne GARSIDE, and Maryanne Garside, individually, Plaintiffs,

v.

OSCO DRUG, INC., Beecham, Inc., Hoffmann-LaRoche, Inc., and McKesson Corporation, Defendants,

v.

Andrew J. PRYHARSKI, M.D., Third Party Defendant.

Civ. A. No. 88-974-T.

United States District Court, D. Massachusetts.

Dec. 15, 1988

Page 20

Andrew C. Schultz, Field & Schultz, Boston, Mass., for plaintiffs.

Douglas E. Hausler, John D. Hanify, Hanify & King, Boston, Mass., for defendants.

Joseph L. Doherty, Jr., Martin, Magnuson, McCarthy & Kenney, Boston, Mass., for Andrew J. Pryharski, M.D.

Scott D. Goldberg, Francis E. Sullivan, Murphy & Beane, Boston, Mass., for Osco Drug, Inc.

MEMORANDUM

TAURO, District Judge.

Following treatment for an ear infection with the drug amoxicillin, plaintiff suffered a seizure. She was taken to the Quincy City Hospital where she was given phenobarbital. Both the amoxicillin and the phenobarbital prescriptions were continued after her release. Several days later, plaintiff developed a severe skin rash that was subsequently diagnosed as toxic epidermal necrolysis.

Plaintiff commenced this resulting products liability lawsuit in the Suffolk County Superior Court on March 7, 1984. Joined as defendants at that time were Osco Drug, the pharmacy that filled plaintiff's prescription, and the two pharmaceutical companies that produced and supplied amoxicillin to Osco Drug, Hoffmann-LaRoche, Inc. and Beecham, Inc. 1 On March 29, 1988 plaintiff amended her complaint to add a new defendant, McKesson Corporation, the company that produced the phenobarbital and distributed it to Osco Drug. On April 28, 1988 McKesson Corp. removed the action to this court, with the consent of the other defendants and without opposition by plaintiff. McKesson, now believing its own removal petition to have been untimely, has moved to have the case remanded to the Superior Court. Plaintiffs oppose the motion to remand. The other defendants have taken no position on the issue.

I.

A verified petition for removal must be filed within thirty days after the defendant is served with the complaint.

Page 21

28 U.S.C. § 1446(b) 2 . Normally, failure to comply with the thirty day rule precludes that defendant from removing the case. But, compliance with the thirty day rule is not a jurisdictional prerequisite. Rather, failure to comply is a defect that may be deemed waived by the parties if they fail to make a timely motion to remand. Consequently, the court is not...

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