Jackson v. Truly
| Decision Date | 04 March 2004 |
| Docket Number | No. 4:03CV276.,4:03CV276. |
| Citation | 307 F.Supp.2d 818 |
| Parties | Edna JACKSON et al Plaintiffs v. William TRULY, Jr., M.D.; et al Defendants. |
| Court | U.S. District Court — Northern District of Mississippi |
J. Robert Ramsay, Bryant, Clark, Dukes, Blakeslee, Ramsay & Hammond, Hattiesburg, MS, John P. Fox, John P. Fox & Associates, Houston, MS, Lynn P. Ladner, Watkins & Eager, Chris J. Walker, Markow Walker & Reeves, PA, Jackson, MS, Michael Noel Watts, Holcomb Dunbar, Shelby Duke Goza, Hickman, Goza & Spragins, PLLC, Oxford, MS, John G. Wheeler, Mitchell, McNutt & Sams, Tupelo, MS, Shelby Kirk Milam, Hickman, Goza & Spragins, PLLC, Oxford, MS, Stephen Paul Wilson, Bryant, Clark, Dukes, Blakeslee, Ramsay & Hammond, Hattiesburg, MS, Stephen P. Kruger, Marcus Alfred Treadway, III, Michael J. Wolf, Page, Kruge2 & Holland, Jackson, MS, Eugene R. Naylor, Wise, Carter, Child & Caraway, Jackson, MS, Gerald Wilborn Chatham, Sr., Gerald W. Chatham, Sr., Attorney, Hernando, MS, L. Carl Hagwood, Campbell, Delong, Hagwood & Wade, Greenville, MS, Robert Niles Hooper, Markow Walker & Reeves, PA, Jackson, MS, Robert J. Dambrino, III, Gore Kilpatrick Purdie Metz & Adcock, Grenada, MS, for William Truly, Jr., M.D., Truly Family Medical Clinic, A.E. Wood, Jr., M.D., Danny Jackson, M.D., Parkview Regional Medical Center, Stanko Vuk, M.D., Nastech Pharmaceutical Company, Inc., Bristol-Myers Squibb Company, Apothecon, Inc., Cephalon, Inc., Joseph Boggess, M.D., Douglas L. Conner, Estate of, T. David Griffin, Dr., M.D., William Billington, M.D., M.D., Trace Regional Hospital, William G. Bennett, Dr., M.D., Baptist Memorial Hospital-North Mississippi, Antronette McKenzie, M.D., M.D., Forrester Ruhl, Premier Family Practice, Larry Montgomery, M.D., North Mississippi Medical Center, Inc., Women's Hospital, Tupelo, MS, Grayden Tubb, John F. Laurenzo, M.D., South Panola Hospital, William Haire, Dr., M.D., Kamlesh Parekah, M.D., Henry Deckstone, M.D., Steven Butler, M.D., Achin Sharma, M.D., Tommy Simpson, M.D., J.R. Medlin, M.D., Baptist Memorial Hospital-Union County, Family Medical Center, Ripley, MS, Magnolia Regional Hospital, Carl Welch, M.D., Michael G. Howell, M.D., Greg Hale, M.D., Baptist Memorial Hospital, Desoto County, Richard Russell, M.D., M.D., Stephen Shirley, M.D., Sam Creekmore, M.D., Paul Odom, M.D., John L. Black, M.D., M.D., Mississippi Baptist Medical Center, Tishomingo Medical Center, Paul King, M.D., John Martin Lee, Jr., M.D., North Mississippi Health Services, Inc., North Oak Regional Medical Center, Brendon S. Ross, M.D., William Ross, M.D., Senatobia Family Practice, Russell Medical Clinic, Parkview Clinic, Robert P. Tate, M.D., Greg Vance, M.D., Desoto Family Medical Center, Joseph Visconti, FNP, Edgar Donahoe, Jr., M.D., Indianola Family Medical, James K. Harvey, M.D., Herman J. Palmer, M.D., Ruby Griffin, M.D., William T. Oakes, Jr., M.D., Itawamba County Hospital, Gilmore Memorial Hospital, Incorporated, Baptist Memorial Hospital, Leake Memorial Hospital, James R. Mayfield, M.D., Larry Montgomery, M.D., M.D., Premier Family Practice, Stephen Montgomery, M.D., Ronald Myers, Sr., M.D., Mississippi Baptist Medical Center, Golden Trianble, Jackson Clinic, Minor Medical Care, University of Mississippi Medical Center, Edwin H. Meeks, M.D., Charles Stanback, Fulton Family Medical, Jimmy Chism, M.D., Pontotoc Family Medical Clinic North Mississippi Medical Center, Family Health Center of Belzoni, The Gorton's Clinic, Walter Gorton, M.D., Baptist Memorial Hospital-Golden Triangle, Inc., Baptist Memorial Hospital-Desoto County, Inc., Baptist Memorial Hospital-Booneville, Inc., Tri-Lakes Medical Center fka South Panola Hospital, defendants.
This cause comes before the Court on the plaintiff's motion for remand. The Court has reviewed the briefs and exhibits and is prepared to rule.
The plaintiffs are thirty-eight Mississippi residents and 6 out-of-state plaintiffs, all of whom have been prescribed the drug Stadol. The defendants include four out-of-state pharmaceutical companies (Nastech Pharmaceutical Company, Cephalon, Apothecon, and Bristol-Myers), a number of in-state physicians, and a number of in-state medical clinics and hospitals.
The complaint alleges that defendant Bristol-Myers sought to obtain government approval for the drug Stadol by representing that it would be used for temporary, post-operative pain relief and not for prolonged use. Bristol-Myers claimed that the drug had few addictive properties and had an extremely low potential for abuse. Based on these representations, the FDA and the DEA classified Stadol as an uncontrolled substance.
In fact, Stadol carries significant risk of addiction, as well as other side effects such as seizures and convulsions. In 1998, warnings on Stadol were changed by the drug manufacturers to reflect that Stadol was a Schedule IV narcotic and was highly addictive. The plaintiffs allege that the drug manufacturers knew about Stadol's addictive properties long before the warnings were added and actively concealed these properties from the government, physicians, pharmacies and patients. The plaintiffs also allege claims against the in-state pharmacies and physicians for strict liability, and breach of implied warranty, as well as claims allegedly arising from their failure to properly prescribe Stadol after it was rescheduled as a Schedule IV drug.
On April 10, 2003, the plaintiffs filed this action in the Humphreys County Circuit Court. The defendants timely removed, arguing that the in-state doctors and pharmacies were fraudulently joined and/or misjoined solely to defeat diversity. The defendants also argue that federal bankruptcy jurisdiction exists over some of the plaintiffs. The plaintiffs have now moved for remand.
In order to prove fraudulent joinder, the defendants must either show that "there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court; or that there has been outright fraud in the plaintiff's pleadings of jurisdictional facts.1" B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir.1981). In reviewing allegations of fraudulent joinder, the Court does not conduct an evidentiary hearing, but utilizes a summary judgment-like procedure. Delgado v. Shell Oil Co., 231 F.3d 165, 179 (5th Cir.2000). Under this procedure, the Court may pierce the pleadings to determine whether, under Mississippi law, the plaintiffs have a valid claim against the in-state defendants. LeJeune v. Shell Oil Co., 950 F.2d 267, 271 (5th Cir.1992). The removing party bears the burden of demonstrating fraudulent joinder, and all disputed questions of fact and ambiguities in controlling state law are resolved in favor of the non-removing party. LeJeune, 950 F.2d at 271.
The drug manufacturers first rely on the reasoning of Louis v. Wyeth-Ayerst Pharmaceuticals, Inc., Civil Action No. 5:00CV102LN (S.D.Miss. Sept. 25, 2000)(unpublished opinion). In that case (which was a multi-plaintiff case involving the drug Rezulin), Judge Lee denied the motion for remand and dismissed the individual pharmacies and physicians because the complaint alleged a failure to warn on the part of the drug companies. Consequently, the pharmacies and physicians could not be liable for failing to warn the plaintiffs of side effects when, according to the complaint, they themselves had not been warned of the side effects by the drug manufacturers. Judge Lee's reasoning in Louis was later adopted by the MDL court as a basis for denying motions to remand several Mississippi cases in In re Rezulin Prods. Liab. Litig., 133 F.Supp.2d 272, 290 (S.D.N.Y.2001).
The Court is also aware, however, of Judge Lee's later opinion in Geneva Little, et al v. Nastech Pharmaceutical Company Inc., et al, Civil Action No. 3:02CV1682LN (S.D. Miss June 13, 2003). In Little, Judge Lee distinguished the case (which involved the drug Stadol which lies at the heart of this case) from Louis, holding that the Little complaint alleged that drug manufacturers only concealed Stadol's harmful properties until 1998, after which the pharmacies and physicians knew or should have known that Stadol was a Schedule IV drug. Consequently, Judge Lee interpreted the negligence allegations against the in-state defendants to relate only to their post-1998 conduct. Viewing the disputed facts and unchallenged allegations in the light most favorable to the plaintiff, Judge Lee held that a reasonable jury might find that the in-state pharmacies and physicians might be liable for negligence in failing to treat Stadol as a Schedule IV drug in violation of state law. On that basis, Judge Lee granted the motion for remand.
The Court is persuaded by Judge Lee's reasoning on this point, and the facts of the instant case are plainly analogous to those in Little. The complaint clearly identifies 1998 as the year in which Stadol was labeled as a Schedule IV drug. The complaint further specifically states a claim for medical malpractice against the physician defendants for failure to warn that Stadol was a controlled substance and for negligence in...
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