Little v. Purdue Pharma, L.P.

Decision Date20 September 2002
Docket NumberCase No. C-3-01-344.
Citation227 F.Supp.2d 838
PartiesCharles Sherman LITTLE, et al., Plaintiffs, v. PURDUE PHARMA, L.P., et al., Defendants.
CourtU.S. District Court — Southern District of Ohio

James Edwin Swaim, Flanagan Lieberman Hoffman & Swaim, Dayton, OH, Stanley Morris Chesley, Waite, Schneider, Bayless & Chesley, Cincinnati, OH, Charles David Ewing, Gardner, Ewing & Souza, Gary L. Gardner, Damon B. Willis, Gardner Ewing & Souza, Louisville, KY, for plaintiffs.

Phillip Jude Smith, David Stewart Cupps, Vorys Sater Seymour & Pease, Columbus, OH, Daniel Jerome Buckley, Vorys Sater Seymour & Pease, Cincinnati, OH, Paul Farrell Strain, Venable, Baetjer & Howard, Baltimore, MD, Joseph P Thomas, Ulmer & Berne, Cincinnati, OH, Milton King Hill, III, Venable Baetjer & Howard LLP, Towson, MD, Kenneth A. Cohen, Kathleen Luz, U. Gwyn Williams, Goodwin Procter & Hoar, Boston, MA, Timothy T. Reid, Reid Berry & Stanard, Cleveland, OH, Robert Louis Berry, Reid Berry Marshall & Wargo, Columbus, OH, Stephen Vincent Freeze, Freund Freeze & Arnold, Thomas M. Kollin, Dayton, OH, for defendants.

DECISION AND ENTRY SUSTAINING PLAINTIFFS' MOTION TO REMAND (DOC. # 16); TERMINATION ENTRY

RICE, Chief Judge.

Plaintiffs are Charles Sherman Little, Peggy Sue Lowell, and Lyneia Ann Marcum (collectively, "Plaintiffs"). Before the Court is their Motion to Remand (Doc. # 16). Defendants are Purdue Pharma, L.P., Purdue Pharma, Inc., Purdue Frederick Co., Purdue Pharmaceuticals, L.P., Abbott Laboratories, Abbott Laboratories, Inc., The P.F. Laboratories, Inc., PRA Holdings, Inc., and Partners Against Pain (collectively, "corporate Defendants"), and CVS1 and the Medicine Shoppe2 (collectively, "local Defendants"). Plaintiffs filed a class action suit against the corporate and local Defendants in the Court of Common Pleas of Montgomery County, Ohio. Defendants subsequently removed the action to this Court (see Doc. # 1), pursuant to 28 U.S.C. § 1441, on the basis that all of them are diverse from Plaintiffs with the exception of local Defendants, and that local Defendants have been "fraudulently joined" and, therefore, should not be considered by the Court for purposes of making a diversity finding. Defendants also submit that removal is proper because Plaintiffs' First Amended Class Action Complaint (attached to Doc. # 1)("Amended Complaint") states a federal cause of action.

Pursuant to 28 U.S.C. § 1447, Plaintiffs move to remand, contending that local Defendants have not been fraudulently joined and that their Amended Complaint states a "colorable" cause of action against them. Plaintiffs also contend that their Amended Complaint raises questions of Ohio law only.3

I. Claims Raised in the Complaint

Plaintiffs allege that they have "suffered from exposure to the dangers of OxyContin" (Amended Compl. ¶ 67), a prescription drug, sold in tablet form, manufactured and/or distributed and/or sold by the various Defendants. As a result, they sought relief in state court on several grounds, contending that Defendants engaged in "wrongful conduct and unlawful practices" in the manufacturing, marketing, promotion, sale, and distribution of OxyContin. (Id. ¶ 2.) They also allege that Defendants "misrepresented" OxyContin to the public, and failed to warn the public of its "appropriate uses, risks[,] and safety" (id. ¶ 4), all of which has led to the drug's over-prescription and the consequential addiction, physical and emotional harm, death, and social problems, suffered by Plaintiffs and the public in general. (Id. ¶¶ 5-10.)

The pleadings are general in their nature; the specifies few. One of the more particularized allegations is that Purdue Pharma, L.P., issued a misleading advertisement on the benefits of OxyContin which the Food and Drug Administration ("FDA") had to ask it to discontinue. (Id. ¶ 52.) Plaintiffs also allege that Defendants used "coercive and seductive" tactics to influence doctors and pharmacists to prescribe or sell the drug (id. ¶¶ 51, 53-54), but details are not provided. Perhaps the most detailed allegation is that Defendants failed to integrate a mechanism into OxyContin which would prevent its time-release feature4 from being circumvented, the result of such omission being that users may access the full potency of a single tablet in a shorter period of time than intended. (Id. ¶ 58.) It is alleged that "numerous" deaths have resulted in Montgomery County, Ohio, and other Ohio counties, from the use of OxyContin. (Id. ¶ 65.) While no mention is made in these background pleadings of any relations of Plaintiffs who have died from the use of OxyContin, subsequent pleadings included within the enumerated counts make reference to "Plaintiff's decedent." (Id. ¶¶ 97, 98, 103-105, 110, 113, 115, and 133-135.) These references are to "Plaintiff" in the singular, but it is entirely unclear which Plaintiff that is, or who the decedent is, as no mention is made of him or her in the background pleadings. As a final point, it has not been alleged specifically that local Defendants were the suppliers of OxyContin to Plaintiffs.

Based on these underlying facts, Plaintiffs set forth the following counts: (1) strict product liability; (2) negligence; (3) breach of express warranty; (4) breach of implied warranty; (5) violation of Ohio Consumer Sales Practices Act, Ohio Rev. Code § 1345.01, et seq.; (6) fraud; and (7) unjust enrichment. Additionally, they seek damages and a host of court-supervised equitable relief.5

Although not controlling for any preclusive purposes, the Court notes several recent decisions involving the same corporate Defendants and factually similar claims. In McCallister v. Purdue Pharma L.P., 164 F.Supp.2d 783 (S.D.W.Va.2001), defendants therein removed on federal question grounds and the court sustained the plaintiffs' motion for remand, finding that the state causes of action could not be interpreted as stating federal claims. A similar result was obtained in Ohler v. Purdue Pharma, L.P., 2002 WL 88945 (E.D.La. Jan. 22, 2002), where the District Court for the Eastern District of Louisiana granted the plaintiff's motion to remand, having found the defendants' argument that a local physician had been fraudulently joined to be without merit. Ohler was then followed by the same court, leading to the same result, in Catalano v. Cleggett-Lucas, 2002 WL 506810 (E.D.La. March 28, 2002) and Hale v. Jarrot, 2002 WL 545339 (E.D.La. April 9, 2002). In Salisbury v. Purdue Pharma, L.P., 166 F.Supp.2d 546 (E.D.Ky.2001), defendants therein met with better luck, the court finding that removal on the basis of diversity by virtue of fraudulent joinder was appropriate given its finding that plaintiffs had no basis of recovery against pharmacy defendants under state law. The identical result was reached in Baker v. Purdue Pharma L.P., Civil Action No. 1:01-0553 (S.D.W.Va. March 28, 2002), wherein it was held that a West Virginia statute precluded plaintiffs from bringing their suit, which included claims of negligence and breach of warranties, against pharmacy defendants.6

II. Motion to Remand

If Defendants are not correct in their argument that there is either complete diversity or the existence of a federal claim, then the suit must be remanded. Local Defendants filed a brief addressing the merits of Plaintiffs' state law claims against them, in which they argue that they have been fraudulently joined. (See Doc. 22.) The various "Purdue" Defendants filed a brief that reiterates the points made in the local Defendants' brief, and further argues that Plaintiffs' claims are wholly federal in nature. (See Doc. # 23.) The various "Abbott" Defendants filed a brief in which they argue that the corporate Defendants are, in effect, federal officers by virtue of the regulatory scheme which limits their independence from federal oversight, and that any suit against them is therefore removable on that basis. (See Doc. # 24.) The Court will consider the arguments in turn.

A. Diversity of Local Defendants

The Court will first take up the question of what is the proper analytical standard in addressing a charge of fraudulent joinder. Following that, the Court will address the underlying facts giving rise to the question.7

1. Defining the Fraudulent Joinder Analysis

The question presented is whether local Defendants have been fraudulently joined. "Under the doctrine of fraudulent joinder, the inquiry is whether [Plaintiffs have] at least a colorable cause of action against [local Defendants] in the [Ohio] state courts." Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C., 176 F.3d 904, 907 (6th Cir.1999)(citing Alexander v. Electronic Data Systems Corp., 13 F.3d 940, 949 (6th Cir.1994)). As the Alexander court explained, "[t]here can be no fraudulent joinder unless it be clear that there can be no recovery under the law of the state on the cause alleged or on the facts in view of the law." 13 F.3d at 949 (quoting Bobby Jones Garden Apartments, Inc. v. Suleski, 391 F.2d 172, 176 (5th Cir. 1968)). The court further elaborated, restating the question as "whether there was any `reasonable basis for predicting that the plaintiff could prevail.'" Id. (quoting Tedder v. F.M.C. Corp., 590 F.2d 115, 117 (5th Cir.1979)). The burden is on Defendants to show joinder was fraudulent, see Jerome-Duncan, 176 F.3d at 907, and that burden is a heavy one. See Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992). Furthermore, "`any disputed questions of fact and ambiguities in the controlling state law should be resolved in favor of the non-removing party.'" Alexander, 13 F.3d at 949 (quoting Carriere v. Sears, Roebuck & Co., 893 F.2d 98, 100 (5th Cir. 1990)); see also Coyne v. American Tobacco Co., 183 F.3d 488, 493 (6th Cir.1999).

Thus, the Court must construe disputed facts and competing inferences in favor of Plaintiffs. After so doing, if it is found that any of Plaintiff...

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