Catlett v. Wyeth, Inc.

• Decision Date: 14 September 2004
• Docket Number: No. 5:04-CV-154-2 (WDO).,5:04-CV-154-2 (WDO).
• Citation: 379 F.Supp.2d 1374
• Parties: Joe CATLETT, et al., Plaintiffs v. WYETH, INC., et al., Defendants.
• Court: U.S. District Court — Middle District of Georgia

379 F.Supp.2d 1374

Joe CATLETT, et al., Plaintiffs v. WYETH, INC., et al., Defendants.

No. 5:04-CV-154-2 (WDO).

United States District Court, M.D. Georgia, Macon Division.

September 14, 2004.

Jonathan J. Ross, Michael A. Lee, Houston, TX, William McCall Calhoun, Jr., Americus, GA, for Plaintiffs.

Stephen M. Brooks, Stephen Melvin Lore, Atlanta, GA, for Defendants.

ORDER

OWENS, District Judge.

Plaintiffs brought this case in the Bibb County Superior Court against numerous defendants alleging injuries due to their use of diet drugs manufactured by Defendant Wyeth. Defendants removed the case to this court based on diversity jurisdiction. The case was eventually transferred with many other cases across the country to Multi-District Litigation ("MDL") in the Eastern District of Pennsylvania. After the case was partially settled and remanded from MDL, plaintiffs moved to remand the case back to the superior court alleging that complete diversity does not exist. Defendants oppose the motion to remand arguing that the only non-diverse defendants were fraudulently joined to defeat diversity. Those defendants are the 6 pharmaceutical sales representatives who worked for Wyeth during the time the drugs were promoted and sold. Defendants request the court to dismiss the claims against the sales representatives and proceed with the remaining claims against the other, diverse defendants. After a thorough review of the record, the court finds that a hearing is unnecessary and enters the following order.

Plaintiffs allege they developed valvular heart disease ("VHD") as a result of taking the diet drugs fenfluramine (Pondimin), dexfenfluramine (Redux) and/or phentermine, a combination of which is commonly known as "Fen-Phen."¹ In 1996 and 1997, Defendant Wyeth and its various subsidiaries produced and marketed Pondimin and Redux. There is a dispute over whether Wyeth produced and sold phentermine but for purposes of this order that is irrelevant. On September 15, 1997, Wyeth withdrew its diet drugs from the world market because of health concerns related to a possible link between the drugs and the development of VHD and primary pulmonary hypertension ("PPH").

Plaintiffs named as defendants Wyeth, f/k/a American Home Products Corporation, Wyeth Pharmaceuticals, Inc., Wyeth-Ayerst Laboratories and Wyeth-Ayerst International. Wyeth is a Delaware corporation with its principal place of business in New Jersey. Wyeth Pharmaceuticals is a Delaware corporation with its principal place of business in Pennsylvania. Wyeth-Ayerst Labs is a Delaware corporation with its principal place of business in Pennsylvania. Wyeth-Ayerst International is a New York corporation with its principal place of business in Pennsylvania.

Plaintiffs also named as defendants the following individuals, all of whom are residents of Georgia and were Wyeth sales representatives in 1996 and 1997: Robert Whatley, Lynn McLendon, Debra Martin, Crystal Flanders, Sharon Ashabranner and Christopher Blanton.² The sales representatives would visit a doctor's office to make them aware of the products and to provide material and information on the drugs to the doctors. The sales representatives were not involved in the design, manufacture, testing or labeling of the drugs. They had no role in any regulatory approval process for the drugs. They did not distribute the drugs to the plaintiffs although they did provide samples to the doctors. Further, the sales representatives had no role in developing the promotional materials given to the doctors. Plaintiffs contend the sales representatives failed to adequately warn the physicians of the alleged dangers associated with the diet drugs.

Plaintiffs allege negligence, fraud and conspiracy claims against all of the defendants. Defendants contend that Georgia courts would not recognize a cause of action against the sales representatives for negligence or fraud and that Georgia courts do not recognize a cause of action for intra-corporate conspiracy in any case. Defendants contend this court should ignore the citizenship of the sales representatives, dismiss those claims for lack of jurisdiction, deny the plaintiffs' motion to remand and proceed with the claims against the remaining defendants.

"Removability should be determined `according to the plaintiff's pleading at the time of the petition for removal.'" Coker v. Amoco Oil Co., 709 F.2d 1433, 1440 (11th Cir.1983) (citations omitted) (removal not fraudulent where procedural rule permitted plaintiff to name parties as was done in the pleadings), sups'd in part by statute on other grounds as stated in, Wilson v. General Motors Corp., 888 F.2d 779 (11th Cir.1989). The "removing party bears the burden of proof on the issue of diversity." Id. (citations omitted). A removing party may defeat a non-removing party's motion to remand "if it shows that the joinder of the non-diverse defendants was fraudulent." Id. (citations omitted). "In order to establish that a fictitious resident defendant has been fraudulently joined, the removing party must show either that there is no possibility that the plaintiff would be able to establish a cause of action against the resident defendant in state court or that there has been outright fraud in the plaintiff's pleading of jurisdictional facts." Id. (citations omitted). "The district court must evaluate all factual issues and questions of controlling substantive law in favor of the plaintiff." Id. (citations omitted).

In another MDL pharmaceutical case, In re Rezulin, the court addressed fraudulent joinder and removal in cases where parties such as pharmaceutical company, physicians and sales representatives are named as defendants. In re Rezulin Products Liability Litigation, 133 F.Supp.2d 272 (S.D.N.Y.2001). In that case, the plaintiffs sought recovery for injuries allegedly sustained as a result of using Rezulin, a prescription diabetes medication. The plaintiffs named as defendants the manufacturer of the drug, pharmacies that sold the drug, physicians who prescribed the drug and the sales representatives. After a careful analysis of the plaintiffs' claims, the court determined that the plaintiffs lacked any reasonable basis under state law to join the sales representatives.

The court explained that, although some courts had stated that a removing defendant must show there is "no possibility" the plaintiff can prevail against the non-diverse defendant in state court, the phrasing "no possibility" could not be taken literally. Id. at 280 n. 4 (citation omitted). "Even if a plaintiff's claim against a non-diverse defendant were squarely precluded by a recent decision of a state's highest court or by a statute precisely applicable to the claim, there always would be a `possibility,' however remote, that the court or legislature might change its mind so as to permit the plaintiff to prevail." Id. Citing several other circuits, the court noted that the standard is more accurately described as "requiring a showing that there is `no reasonable basis' for predicting liability on the claims alleged." Id. (citing Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 461 n. 3 (2nd Cir.1998)) (citing Badon v. RJR Nabisco, Inc., 224 F.3d 382, 393 (5th Cir.2000); Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3rd Cir.1990)).

The court next addressed the claims against the pharmaceutical representatives pursuant to Alabama and Mississippi law. "Affidavits of the defendant sales representatives filed in each of the Mississippi cases [stated] that the sales representatives `made no representations, by way of promotion or advertising or otherwise, or any statements whatsoever, including but not limited to representations regarding Rezulin to plaintiff or to the general public.'" Id. at 281. "The affidavit filed in the Alabama case [stated] that the sales representative had no dealings with plaintiff or plaintiff's decedent and did not `make any statements to the general public or participate in any advertising or promotion to the general public concerning Rezulin.'" Id. The plaintiffs did not respond to the affidavits in any way. As a "consequence, the Court [could] conclude only that the joinder of these sales representatives lacked any reasonable basis in fact" but noted that the plaintiffs' failure to rebut the affidavits was not "the only basis upon which the Court [found] joinder of the sales representatives to have been improper." Id. (citations omitted).

The court next addressed the issue of whether the Supreme Court of Mississippi "would find that pharmaceutical sales representatives have a duty to warn of characteristics of prescription drugs they sell." Id. at 282. The court noted that no Mississippi court had resolved this precise issue but that Mississippi followed the "learned intermediary rule" which provides, "Where prescription drugs are concerned, the manufacturer's duty to warn is limited to an obligation to advise the prescribing physician of any potential dangers that may result from the drug's use." Id. (citations omitted). The rationale for this rule is that "[a]s a medical expert, the prescribing physician can take into account the propensities of the drug, as well as the susceptibilities of his patient ... The choice he makes is an informed one, an individualized medical judgment bottomed on a knowledge of both patient and palliative. Pharmaceutical companies, then, ... in selling prescription drugs are required to warn only the prescribing physician, who acts as the `learned intermediary' between manufacturer and consumer." Id. at 282 (citations omitted).

Applying this principle, the court found that pharmaceutical sales representatives have a duty to warn the physicians "to whom they promote the product" and have "no duty to warn patients." Id. Because of the learned intermediary rule, the court found there was no reasonable chance a Mississippi court would hold the sales representatives liable on a failure to warn...