In re VIOXX Prods. Liab. Litig.
| Citation | 843 F.Supp.2d 654 |
| Decision Date | 03 January 2012 |
| Docket Number | MDL No. 1657. |
| Parties | In re VIOXX PRODUCTS LIABILITY LITIGATION This Document Relates to: Case No. 10–1115. |
| Court | U.S. District Court — Eastern District of Louisiana |
OPINION TEXT STARTS HERE
Orran L. Brown, BrownGreer PLC, Richmond, VA, for Plaintiff.
Eric Michael Liddick, Harry Simms Hardin, III, Madeleine Fischer, Jones Walker, New Orleans, LA, for Defendant.
ORDER & REASONS
Currently pending before the Court is the Commonwealth of Kentucky's Motion to Remand (Rec. Doc. 63194). The Court has reviewed the briefs and the applicable law and heard oral argument on the motion and is now prepared to rule.
To put this matter in perspective, a brief review of this litigation is appropriate. This multidistrict products liability litigation involves the prescription drug Vioxx, known generically as Rofecoxib. Merck, a New Jersey corporation, researched, designed, manufactured, marketed and distributed Vioxx to relieve pain and inflammation resulting from osteoarthritis, rheumatoid arthritis, menstrual pain, and migraine headaches. On May 20, 1999, the Food and Drug Administration approved Vioxx for sale in the United States. Vioxx remained publicly available until September 20, 2004, when Merck withdrew it from the market after data from a clinical trial known as APPROVe indicated that the use of Vioxx increased the risk of cardiovascular thrombotic events such as myocardial infarction (heart attack) and ischemic stroke. Thereafter, thousands of individual suits and numerous class actions were filed against Merck in state and federal courts throughout the country alleging various products liability, tort, fraud, and warranty claims. It is estimated that 105 million prescriptions for Vioxx were written in the United States between May 20, 1999 and September 30, 2004. Based on this estimate, it is thought that approximately 20 million patients have taken Vioxx in the United States. 1
California was the first state to institute a consolidated state court proceeding on October 30, 2002. New Jersey and Texas soon followed suit, on May 20, 2003 and September 6, 2005, respectively. On February 16, 2005, the Judicial Panel on Multidistrict Litigation (“MDL”) conferred MDL status on Vioxx lawsuits filed in various federal courts throughout the country and transferred all such cases to this Court to coordinate discovery and to consolidate pretrial matters pursuant to 28 U.S.C. § 1407. See In re Vioxx Prods. Liab. Litig., 360 F.Supp.2d 1352 (J.P.M.L.2005). Additionally, a number of state and local governments filed suits against Merck seeking to recover amounts paid for Vioxx prescriptions on behalf of their citizens or civil penalties pursuant to state consumer protection statutes.
The Commonwealth of Kentucky, through Attorney General Jack Conway, filed one such action against Merck in the Circuit Court of Franklin County, Kentucky on September 28, 2009. Merck removed the case to the United States District Court for the Eastern District of Kentucky, asserting federal question jurisdiction under 28 U.S.C. § 1331 and diversity jurisdiction pursuant to the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). The case was transferred to this Court by the JPML on April 15, 2010.
On June 29, 2010, the Court issued Pretrial Order 39A and set a schedule for coordinated discovery in the pending Governmental actions, including Kentucky's suit. The Court stayed discovery in the governmental cases on November 22, 2010 so that the parties could explore global resolution of the governmental actions. During the stay, counsel for the Commonwealth of Kentucky raised the issue of a briefing schedule on a motion to remand or transfer its case to Kentucky state court. At a status conference on August 4, 2011, the Court set a briefing schedule.
Kentucky has filed a motion to remand the case to Kentucky state court for lack of subject matter jurisdiction. With respect to diversity jurisdiction, the Commonwealth contends that the case is not a class action for the purposes of CAFA and that minimal diversity is lacking because Kentucky, the only named plaintiff, is not a citizen of itself. With respect to federal question jurisdiction, it argues that no federal question appears on the face of the complaint.
Merck opposes remand. It argues the case is functionally a class action for the purposes of CAFA jurisdiction and that the citizens of Kentucky supply the requisite diverse citizenship because they are the real parties in interest to some of the relief sought in the Complaint. Merck also argues that the Court has federal question jurisdiction over the case because the complaint implicates federal pharmaceutical laws and regulations.
III. LAW AND ANALYSISA. Standard on Motions to Remand
As the removing party, Merck has the burden of establishing federal jurisdiction.Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir.2001). Removal jurisdiction “raises significant federalism concerns” and is strictly construed. Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir.1988). Doubts regarding jurisdiction should be resolved against exercising jurisdiction. Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir.2000).
The parties dispute whether the Court has either federal question jurisdiction pursuant to 28 U.S.C. § 1331 or diversity jurisdiction pursuant to 28 U.S.C. § 1332(d). In addressing a motion to remand for lack of federal question jurisdiction, the Court applies the “ ‘well-pleaded complaint’ rule and searches for a federal question presented on the face of the complaint.” PCI Transp., Inc. v. Forth Worth & W. R.R. Co., 418 F.3d 535, 543 (5th Cir.2005).2 Likewise, the Court looks to the claims in the state court complaint at the time of removal to assess diversity jurisdiction. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.2002).
First, the Court will first set forth the allegations in the Commonwealth's complaint which frame the jurisdictional arguments. Then, the Court will discuss why there is no diversity jurisdiction because this case is not a class action within the meaning of CAFA. Finally, the Court will discuss why no federal question appears on the face of the complaint.
B. The Commonwealth of Kentucky's Complaint
The jurisdictional issues are framed by the allegations in Kentucky's complaint. The complaint alleges a single count pursuant to the Kentucky Consumer Protection Act (“KCPA”). The KCPA announces that it is “a strong and effective consumer protection program to protect the public interest and the well-being of both the consumer public and the ethical sellers of goods and services.” Ky.Rev.Stat. Ann. § 367.120. Thus, the Act prohibits “[u]nfair, false, misleading, or deceptive acts or practices in the conduct of any trade or commerce.” Id. § 367.170.
Section 367.170 of the KCPA can be enforced in two ways. First, § 367.190 creates a cause of action for the Kentucky Attorney General. The Kentucky Attorney General may file suit and seek a temporary or permanent injunction against an unlawful practice:
(1) Whenever the Attorney General has reason to believe that any person is using, has used, or is about to use any method, act or practice declared by KRS 367.170 to be unlawful, and that proceedings would be in the public interest, he may immediately move in the name of the Commonwealth in a Circuit Court for a restraining order or temporary or permanent injunction to prohibit the use of such method, act or practice....
Id.§ 367.190(1). The Attorney General also has a right to recover civil penalties for willful violations of the KCPA:
(2) In any action brought under KRS 367.190, if the court finds that a person is willfully using or has willfully used a method, act, or practice declared unlawful by KRS 367.170, the Attorney General, upon petition to the court, may recover, on behalf of the Commonwealth, a civil penalty of not more than two thousand dollars ($2,000) per violation, or where the defendant's conduct is directed at a person aged sixty (60) or older, a civil penalty of not more than ten thousand dollars ($10,000) per violation, if the trier of fact determines that the defendant knew or should have known that the person aged sixty (60) or older is substantially more vulnerable than other members of the public.
Id. § 367.990(2). Thus, the KCPA expressly grants to the Attorney General the right to seek injunctive relief and civil penalties. The statute does not require the joinder of any Kentucky citizens as named or unnamed plaintiffs. The KCPA does not provide an express basis for pursuing declaratory relief that a defendant has violated the Act; however, a generic civil procedure statute allows a plaintiff to seek a declaratory judgment. Id. § 418.040.
Second, § 367.220 of the KCPA creates a private right of action for a Kentucky citizen to pursue actual damages and attorney's fees and costs, and possibly some forms of equitable relief for violations of the KCPA:
(1) Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property ... as a result of the use or employment by another person of a method, act or practice declared unlawful by KRS 367.170, may bring an action ... to recover actual damages. The court may, in its discretion, award actual damages and may provide such equitable relief as it deems necessary or proper. Nothing in this subsection shall be construed to limit a person's right to seek punitive damages where appropriate.
(2) Upon commencement of any action brought under subsection (1) of this section, the clerk of the court shall mail a copy of the complaint or other initial pleading to the Attorney General and, upon entry of any judgment or decree in the action, shall mail a copy of such judgment or decree to the Attorney General.
(3) In any action brought by a...
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