Brown v. Lilly

• Decision Date: 18 August 2011
• Docket Number: Docket No. 10–512–cv.
• Citation: 654 F.3d 347
• Parties: Derrick BROWN, Personal representative of the Estate of Dorothy A. Brown, Deceased, Plaintiff–Appellant,v.ELI LILLY AND COMPANY, Defendant–Appellee,Noxubee General Hospital, Baptist Memorial Hospital–Golden Triangle, Police Officers John Does 1–5, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

654 F.3d 347

Derrick BROWN, Personal representative of the Estate of Dorothy A. Brown, Deceased, Plaintiff–Appellant,

v.ELI LILLY AND COMPANY, Defendant–Appellee,Noxubee General Hospital, Baptist Memorial Hospital–Golden Triangle, Police Officers John Does 1–5, Defendants.

Docket No. 10–512–cv.

United States Court of Appeals, Second Circuit.

Argued: May 4, 2011.Decided: Aug. 18, 2011.

Angela Turner Lairy, Turner & Associates, P.L.L.C. (Bennie L. Turner, of counsel), West Point, MS, for Plaintiff–Appellant.Eric Rothschild, Pepper Hamilton LLP (Nina M. Gussack and Franklin T. Pyle III, of counsel), Philadelphia, PA, for Defendant–Appellee.Before: MINER, WALKER and WESLEY, Circuit Judges.MINER, Circuit Judge:

Plaintiff-appellant Derrick Brown (“Brown”), Personal Representative of the Estate of Dorothy Brown, deceased, appeals from summary judgments certified as final pursuant to Federal Rule of Civil Procedure 54(b) in favor of defendants Noxubee General Hospital (“Noxubee”) and Baptist Memorial Hospital–Golden Triangle (“Baptist”) and from a summary judgment in favor of defendant-appellee Eli Lilly and Company (“Eli Lilly”). The judgments were entered in the United States District Court for the Eastern District of New York (Weinstein, J.). The action giving rise to this appeal, removed from state court in Mississippi to a federal district court in Mississippi, and thereafter transferred to the Eastern District of New York, was brought to recover for the wrongful death of Dorothy Brown (“Ms. Brown”) allegedly due to her treatment with the drug Zyprexa, which is manufactured by Eli Lilly. An earlier appeal from the certified judgment in favor of Noxubee was withdrawn by stipulation. An earlier appeal from the certified judgment in favor of Baptist was dismissed. A motion to remand, predicated on the lack of diversity on the parts of Noxubee and Baptist was denied following the issuance of all the orders granting summary judgment.

BACKGROUND

I. Inception, Removal and Transfer

Dorothy Brown, a resident of Macon, Mississippi, suffered from various ailments, including depression with psychotic features, schizophrenia, and insulin-dependent diabetes mellitus. While under psychiatric care during the period January 1999–June 2003, she was prescribed Zyprexa, which is manufactured by Eli Lilly.¹ On August 20, 2005, Ms. Brown presented at the Emergency Department of Noxubee in Macon. Her complaints included difficulty in breathing and high blood glucose. Discharged the same day, she presented at Baptist in Flowood, Mississippi, the next day. Discharged the day that she was admitted at Baptist, she returned to Noxubee on August 22 and again was discharged after a brief visit. On August 24, 2005, Ms. Brown died at her residence. Her death certificate listed the cause of death as cardiac arrest.

The complaint in the action to recover damages for the wrongful death of Ms. Brown was filed in the Circuit Court of Noxubee County, Mississippi, on October 23, 2007, and the First Amended Complaint was filed in the same court on November 6, 2007. As to the defendant hospitals, the Amended Complaint included allegations that Ms. Brown “was discharged by the Emergency Departments when it was known, or should have been known, that [Ms. Brown] was unable to provide necessary personal and medical care for herself as the result of her impairment.” The claims pleaded against Eli Lilly included failure to warn about substantial risks in the use of Zyprexa, an antipsychotic drug said to be associated with “an increasing prevalence of hyperglycemia and diabetes-related illnesses.” Also pleaded were claims for violations of various provisions of the Mississippi Products Liability Act and for gross negligence. According to the complaint, when “Zyprexa® left the control of the Defendant Lilly it was a defective product.”

By Notice of Removal filed on January 31, 2008, Eli Lilly removed the action to the United States District Court for the Southern District of Mississippi, Eastern Division, invoking the District Court's diversity jurisdiction. Acknowledging that it was a resident of Indiana and that Brown, Noxubee, and Baptist were residents of Mississippi (and, apparently, that complete diversity was lacking on the face of the complaint), Eli Lilly asserted in the Notice that Baptist and Noxubee “have been fraudulently and improperly joined as [d]efendants to defeat diversity and must be disregarded for purposes of determining diversity of citizenship for federal jurisdiction.”

Eli Lilly argued that Baptist was improperly joined because Brown had failed to file with the Amended Complaint a certificate required by Mississippi law that Brown had consulted with a qualified expert and determined from such consultation that there was a reasonable basis for the commencement of the action. As an additional argument that Baptist was improperly joined, Eli Lilly noted that Brown had failed to comply properly with the Mississippi statutory requirement that a written notice of a claim for professional negligence be served sixty days prior to the filing of a lawsuit in that “the notice did not adequately state the legal basis of the claim and was not in compliance with [the statute].”

In asserting improper joinder of Noxubee in the Notice of Removal, Eli Lilly noted that Noxubee is a “community hospital” as defined by Mississippi law and therefore is entitled to the benefit of the Mississippi Tort Claims Act (“MTCA”). That Act requires service of a written notice of claim containing specific information at least ninety days prior to the filing of an action against a community hospital. According to Eli Lilly, “[p]laintiff did not provide the ninety (90) day notice as required,” so the claim as against Noxubee must be dismissed. In further support of its claim that Noxubee was improperly joined, Eli Lilly noted that, as in the case against Baptist, Brown failed to file a certificate of consultation with an expert and thus was delinquent in providing the sixty-day notice of a claim for professional negligence required by Mississippi law. The Notice of Removal also recited that the allegations of the complaint were insufficient to plead a cause of action against either Baptist or Noxubee.

On February 29, 2008, Brown filed a motion in the District Court in Mississippi challenging Eli Lilly's contention that Noxubee and Baptist had been fraudulently joined and seeking remand of the action to state court. Before removal, Noxubee had filed a motion for summary judgment, and Baptist had moved to dismiss the complaint. After removal, Noxubee once again filed a motion for summary judgment, contending that the action was time-barred and that Brown had failed to comply with Mississippi requirements for notice and for certification of pre-suit expert consultation.

By order filed on August 11, 2008, the Panel on Multidistrict Litigation, having determined that the Eastern District of New York was the proper forum for actions relating to the drug Zyprexa, ordered that the actions before the panel and all “other related actions” be transferred to that forum. See In re Zyprexa Products Liab. Litig., 314 F.Supp.2d 1380, 1381 n. 1 (J.P.M.L.2004). The motions pending in the Southern District of Mississippi were still pending at the time of transfer.

II. Proceedings in the Eastern District of New York: Decisions Rendered and Appeals Withdrawn

By Memorandum and Order filed on October 15, 2008, the District Court for the Eastern District of New York addressed Brown's motion to remand. The court noted Brown's contention “that the presence ... of defendants Noxubee General and Baptist Memorial creates incomplete diversity, so that remand to state court is required.” The court also noted Lilly's contention that the non-diverse defendant hospitals had been fraudulently joined and that the case therefore had been properly removed. In reviewing the rule of fraudulent joinder, the court stated, inter alia, that “[w]here a plaintiff has added a defendant against whom there is no reasonable basis for recovery, joinder of that party is fraudulent”; and that, in this case, “[t]o decide whether joinder is fraudulent, the court looks to Mississippi state law to determine if there is a valid claim against the non-diverse defendants.”

Applying the provisions of the MTCA, providing for the assertion of claims against governmental entities, the District Court found (1) that Noxubee, as a “community hospital,” is a governmental entity; (2) that there is a one-year statute of limitations for the commencement of actions against governmental entities, see Miss.Code Ann. § 11–46–11(3); (3) that Brown's action was commenced approximately 22 months after the actionable conduct; (4) that a Notice of Claim must be served on a governmental entity within ninety days of filing an action in court, see Miss.Code Ann. § 11–46–11(1), and contain certain specific information, see Miss.Code Ann. § 11–46–11(2); and (5) that the Notice that Brown served on Noxubee failed to include adequate responses to the items of required information. Accordingly, the court concluded that Brown's claim against Noxubee was time-barred as well as deficient for failure to comply with the Notice of Claim requirements and that Noxubee therefore was fraudulently joined.

Following its determination as to fraudulent joinder, the court observed that Noxubee's motion for summary judgment remained open and that Brown would be given the opportunity to argue that motion although “[t]here appears to be little if any merit in plaintiff's claim against Noxubee.”

As to Baptist, the court found that “[t]he record does not make clear whether Baptist Memorial is a community hospital subject to the same statute and defenses as Noxubee.” The court also noted an additional issue as to Baptist: whether Brown complied with the Mississippi requirement that an expert be consulted prior to the filing of a malpractice complaint. Se...