Jones v. American Home Products Corp.

• Decision Date: 13 February 2004
• Docket Number: No. 1:03-CV-657.,1:03-CV-657.
• Citation: 344 F.Supp.2d 500
• Parties: Michael L. JONES, and Rhonda L. Jones, Each Individually and as Next Friends of Kristin M. Jones, a Minor, v. AMERICAN HOME PRODUCTS CORPORATION, et al.
• Court: U.S. District Court — Eastern District of Texas

Page 500

344 F.Supp.2d 500

Michael L. JONES, and Rhonda L. Jones, Each Individually and as Next Friends of Kristin M. Jones, a Minor, v. AMERICAN HOME PRODUCTS CORPORATION, et al.

No. 1:03-CV-657.

United States District Court, E.D. Texas, Beaumont Division.

February 13, 2004.

Timmy Kent Goss of Capshaw Boss Bowers, Ben Carl Martin of Dallas, TX, for Plaintiffs.

Richard L. Josephson, of Baker Botts, Lee D. Thibodeaux, Orgain, Bell & Tucker, Kyle D. Giacco of Day & Ray PC, M. Scott Michelman and Gene M. Williams of Shook, Hardy & Bacon, Paul Reichert Elliott, Richard L. Josephson, and Douglas Brady Roberson, Baker Botts, Charles Jason Rother and Jeffrey Stephen Wolff, of Fulbright & Jaworski, Houston, TX, Michael R. Klatt, of Clark Thomas & Winters, Stacey Ann Martinez, and Stephanie Ann Smith, of Fulbright & Jaworski, Austin, TX, Mary Diane Owens and Bradley Steven Wolff of Swift Currie, McGhee & Hiers, Atlanta, GA, Rebecca Jo Reser of Davidson & Troilo, San Antonio, TX, Mitchell C. Chaney and Sarah Ann Nicholas of Rodriguez, Colvin & Chaney, Brownsville, TX, Curry Lynn Cooksey of Orgain, Bell & Tucker, Woodlands, TX, Philipa Marie Remington, Thomas Patrick Sullivan and Russell G. Thornton of Stinnett Thiebaud & Remington, Dallas, TX, for Defendants.

ORDER

CLARK, District Judge.

This case was filed in state court by plaintiffs Michael L. Jones and Rhonda L Jones, individually and as next friends of their daughter, Kristin M. Jones. It was removed by defendants on the basis of diversity jurisdiction, and plaintiffs now move to remand claiming that diversity is destroyed by the presence of three defendants who are citizens of Texas, Dr. Nargis Kayani, Christus Health Southeast Texas d/b/a Christus St. Elizabeth Hospital, and Christus Health (sometimes referred as the "Healthcare Defendants"). The court finds that the Healthcare Defendants were fraudulently joined, and, since the remaining defendant drug manufacturers are not citizens of Texas for diversity purposes, the motion to remand is DENIED.

BACKGROUND

Plaintiffs, citizens of Texas, sued drug manufacturers of diverse citizenship (the "Manufacturer Defendants") in state court.¹ Plaintiffs also sued Dr. Nargis Kayani, Christus Health Southeast Texas d/b/a Christus St. Elizabeth Hospital (St. Elizabeth Hospital), and Christus Health, the "Healthcare Defendants," all of whom are citizens of Texas.

Plaintiffs' petition in state court alleged that defendants designed, manufactured, produced, labeled, advertised, tested, inspected, shipped, distributed, and/or sold Thimerosal, a compound used in vaccinations, which allegedly can cause harmful effects. Plaintiffs asserted claims under a myriad of statutory and common law theories.

Defendants timely removed this case asserting that federal diversity jurisdiction is satisfied because the amount in controversy exceeds $75,000, the manufacturing defendants are not citizens of Texas for diversity purposes, and the Healthcare Defendants were fraudulently joined. Plaintiffs have moved to remand, asserting that their petition in state court stated a proper cause of action against the Healthcare Defendants under Texas law.

STANDARD OF REVIEW

At the outset the court notes that a federal defense does not give a defendant the right to remove. See Smallwood v. Ill. Cent. R.R. Co., 342 F.3d 400, 408 (5th Cir.2003). Accordingly, defendants in this case may not rely upon a federal preemptions claim as a basis for removal. Likewise, assertions of defendants which go to the merits of the action as an entirety, and not to the joinder, will not be a basis for finding fraudulent joinder. 342 F.3d at 407. Therefore, any argument the defendants make about the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 et seq. ("Vaccine Act"), does not support a denial of the motion to remand.²

To prove fraudulent joinder, defendants must show: (1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse part(ies) in state court. Travis v. Irby, 326 F.3d 644, 647 (5th Cir.2003). There is no claim of actual fraud in this case, so the only inquiry is whether "there is arguably a reasonable basis for predicting that the state law might impose liability on the facts involved." 326 F.3d at 647.

Fraudulent joinder exists where a plaintiff has failed to plead under state law any specific actionable conduct against the non-diverse defendants. Griggs v. State Farm Lloyds, 181 F.3d 694, 699 (5th Cir.1999). The plaintiff cannot establish potential liability under state law by a pleading that establishes "the mere hypothetical possibility that such an action could exist." 181 F.3d at 701.

This court must determine whether there is a reasonable basis for predicting that plaintiffs might be able to establish liability of one or more of the Healthcare Defendants on the pleaded claims in the state court. Travis, 326 F.3d at 648. This does not mean that plaintiff can avoid removal by pointing to "a mere theoretical possibility of recovery under local law." There must arguably be a reasonable basis for predicting that state law would allow recovery in order to preclude a finding of fraudulent joinder. Travis, 326 F.3d at 648.

Generally, the existence of diversity jurisdiction is determined from the record at the time the notice of removal is filed. A court may utilize a "summary judgment type procedure" to determine fraudulent joinder. See Griggs, 181 F.3d at 699-700. That is not necessary in this case.

ANALYSIS OF TEXAS LAW

Whether there is a reasonable basis for predicting that plaintiffs could establish a claim against one or more of the Healthcare defendants in this case must be resolved by reference to Texas law. The fact that this is an immunization case puts it in a different category than other drug cases because Texas statutes impose strict limitations on the possibility of recovery against those who immunize children in Texas.

Physicians, such as Dr. Kayani, and hospitals and other medical facilities, such as defendants St. Elizabeth Hospital and Christus Health, are not liable for damages arising from an immunization administered to a child, except for injuries resulting from the person's or facility's own acts of negligence.³ TEX. FAM.CODE ANN. § 32.103(b)(Vernon 2002). Accordingly, the Joneses may not prevail against the Healthcare Defendants based upon some imputed theory of negligence. There will have to be an assertion of negligence on the part of one or more of the Healthcare Defendants.

There is also a limitation on the types of negligence for which a plaintiff may recover in Texas against physicians and other healthcare providers such as the defendants in this case.⁴ The Texas legislature, finding there was a crisis in health care, limited claims against doctors and other healthcare providers by passing the Medical Liability and Insurance Improvement Act, Tex.Rev.Civ. Stat. Ann. art. 4590i ("MLIIA").⁵ Physicians are specifically named in the MLIIA, and St. Elizabeth Hospital and Christus Health meet the definition of "health care providers." TEX.REV.CIV. STAT. ANN. art. 4590i, § 1.03(a)(3)(Vernon Supp.2003). The MLIIA further provides that:

In a suit against a physician or a health care provider involving a health care liability claim that is based on the failure of the physician or health care provider to disclose or adequately to disclose the risk and hazard involved in the medical care or surgical procedure rendered by the physician or health care provider, the only theory on which recovery may be had is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.

TEX.REV.CIV. STAT. ANN. art. 4590i, § 6.02 (Vernon Supp.2003)(emphasis added). This section was added to the MLIIA in 1995, so earlier Texas cases about other potential causes of action are not on point. Therefore, under Texas law, it is not enough in a health liability case to show that there was some risk, however small, and that a defendant failed to warn of it. A plaintiff must also plead and prove that the risk was such that a reasonable person would have been influenced to withhold consent.

Reviewing plaintiffs' petition in state court in view of these specific statutory limitations on the potential liability of the three Healthcare Defendants, it appears that the petition alleges no actionable facts or theory which would arguably present a reasonable basis for predicting that state law would allow recovery against one of these defendants.

The plaintiffs' petition describes the diverse defendants, i.e., the drug companies which manufactured the vaccines in question, as the "Manufacturer Defendants." The non-diverse defendants are identified as the "Healthcare Defendants." Sometimes "Defendants" is used to refer to all of the defendants. However, this reference is frequently confusing in the petition, since it is frequently used to refer to acts such as manufacturing the vaccines which clearly could have only been performed by the Manufacturer Defendants.

Sections IV through X of the petition set out various allegations that the "Defendants" manufactured, created, designed, labeled, sterilized, packaged, and advertised vaccines which were allegedly defective because they included Thimerosal. To accept these pleadings as "reasonable basis for predicting that state law would allow recovery" against the Healthcare Defendants in this case would be to engage in the pretense that a doctor or a local hospital manufactured, created, designed, labeled, sterilized, packaged, and advertised a vaccine with Thimerosal. Even indulging all reasonable inferences in favor of a plaintiff, there is not even a theoretical possibility that the Healthcare Defendants are going to be found liable for manufacturing, creating, designing, labeling, sterilizing, packaging, and...