Martinez v. Pfizer Inc., Civil Action No. DR-18-CV-041-AM/VRG

• Court: United States District Courts. 5th Circuit. Western District of Texas
• Citation: 388 F.Supp.3d 748
• Docket Number: Civil Action No. DR-18-CV-041-AM/VRG
• Parties: Christian MARTINEZ, Individually, and Sandra Saucedo, as Representative of the Estate of Juan Humberto Martinez, Deceased, Plaintiffs, v. PFIZER INC.; Hospira, Inc.; Hospira Worldwide, Inc.; Hospira Worldwide, LLC ; South Texas Urgent Care Center of Eagle Pass, LLC d/b/a South Texas Urgent Care Center; Lewis S. Christian, Jr., M.D.; Denise V. Nemeth, P.A.; Alejandro Maldonado; Fort Duncan Regional Medical Center; Patrick Schaner, M.D. ; Russell Jones, N.P.; and Gabriel Martinez, R.N., Defendants.
• Decision Date: 14 March 2019

388 F.Supp.3d 748

Christian MARTINEZ, Individually, and Sandra Saucedo, as Representative of the Estate of Juan Humberto Martinez, Deceased, Plaintiffs,
v.
PFIZER INC.; Hospira, Inc.; Hospira Worldwide, Inc.; Hospira Worldwide, LLC ; South Texas Urgent Care Center of Eagle Pass, LLC d/b/a South Texas Urgent Care Center; Lewis S. Christian, Jr., M.D.; Denise V. Nemeth, P.A.; Alejandro Maldonado; Fort Duncan Regional Medical Center; Patrick Schaner, M.D. ; Russell Jones, N.P.; and Gabriel Martinez, R.N., Defendants.

Civil Action No. DR-18-CV-041-AM/VRG

United States District Court, W.D. Texas, Del Rio Division.

Signed March 14, 2019

ORDER

ALIA MOSES, United States District Judge

Pending before the Court is the Report and Recommendation of the Honorable Victor R. Garcia, United States Magistrate Judge, filed February 1, 2019. (ECF No. 42.) In the report, Judge Garcia recommends that the Plaintiffs' Motion to Remand to State Court (ECF No. 19) be GRANTED and the Pharmaceutical Defendants' Motion to Dismiss (ECF No. 7)¹ be DENIED for lack of jurisdiction. This Report and Recommendation will be ADOPTED.

I. BACKGROUND

This litigation arises from the death of Juan Humberto Martinez. According to the Plaintiffs' Amended Original Petition, the live pleading, Martinez sought medical treatment on April 19, 2016, for pain he experienced in his buttocks after he attempted to lift a heavy object at work. (See ECF No. 1-1.) His pain was initially treated with Tylenol and muscle relaxers. When Martinez's pain did not improve, he was given intramuscular injections of the drug Toradol beginning on April 30, 2016. (Id. ) Martinez developed a muscular abscess, infections, and sepsis, and suffered renal failure which resulted in his death on May 30, 2016. (Id. at 6.)

Following Martinez's death, the Plaintiffs, individually and as representatives of Martinez's estate, filed suit against the Defendants in the 293rd Judicial District Court of Maverick County, Texas. (Id. at 1.) The Plaintiffs assert a cause of action for negligence against the Defendants Lewis S. Christian, M.D., Denise V. Nemeth, P.A., Alejandro Maldonado, and their employer, South Texas Urgent Care Center of Eagle Pass, LLC d/b/a South Texas Urgent Care Center ("South Texas Urgent Care"), and further claim that South Texas Urgent Care bears vicarious liability for its employees' negligence. (Id. at 53–56.) The Plaintiffs assert a negligence cause of action against the Defendants Patrick Schaner, M.D., Russell Jones, N.P., Gabriel Martinez, R.N., and their employer, Fort Duncan Regional Medical Center, L.P. d/b/a Fort Duncan Regional Medical Center ("Fort Duncan"), and further claim that Fort Duncan bears vicarious liability for its employees' negligence. (Id. at 56–59.) The Court will refer to the aforementioned defendants collectively as the

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"Healthcare Defendants." Against the Defendants Pfizer, Inc., Hospira Inc., Hospira Worldwide, Inc., and Hospira Worldwide, LLC, collectively the "Pharmaceutical Defendants," the Plaintiffs assert causes of action for: (1) negligence; (2) fraud and negligent misrepresentation; (3) negligence per se; (4) failure to update labeling; (5) intentional misrepresentation; (6) concealment; (7) design and manufacturing defects; and (8) failure to provide medication guide. (Id. at 27–53.) The Plaintiffs claim that all the Defendants were grossly negligent and seek wrongful death and survival damages as well as punitive damages for wrongful death and survival along with interest and costs. (Id. at 59–64.)

On June 18, 2018, the Pharmaceutical Defendants removed this suit based upon the claim that federal jurisdiction over this suit exists because there is a sufficient amount in controversy and complete diversity of citizenship among the parties because the Healthcare Defendants are improperly joined, fraudulently misjoined, and discretionarily severable, meaning that their non-diverse state citizenship may be disregarded. (See ECF No. 1 at ¶ 28–40.) Simultaneous with the removal, the Pharmaceutical Defendants filed a motion to dismiss for failure to state a claim and alternative motion for a more definite statement. (ECF No. 7.) Thereafter, the Plaintiffs filed a motion to remand arguing that a remand is required because federal diversity jurisdiction over this action does not exist since the Healthcare Defendants are properly joined, non-diverse defendants. (ECF No. 19.) Judge Garcia filed a Report and no party filed objections.

II. LEGAL STANDARD

The Court need not conduct a de novo review of the pending matter because no party filed objections to the Report and Recommendation. Rather, the Court need only review the report and recommendation to determine whether it is erroneous or clearly contrary to law. Douglass v. United Servs. Auto. Ass'n. , 79 F.3d 1415, 1429 (5th Cir. 1996) ; United States v. Wilson , 864 F.2d 1219, 1221 (5th Cir. 1989).

III. DISCUSSION

In the present matter, Judge Garcia's findings and conclusions are neither erroneous nor contrary to law. Title 28 U.S.C. § 1332(a) provides that federal district courts have original jurisdiction over civil actions where the amount in controversy exceeds $75,000,² and the suit is "between [ ] Citizens of different States." 28 U.S.C. § 1332(a)(1) (2012). For diversity jurisdiction to be proper, the "court must be certain that all plaintiffs have a different citizenship from all defendants." Getty Oil Corp., a Div. of Texaco, Inc. v. Insur. Co. of N.A. , 841 F.2d 1254, 1258 (5th Cir. 1988) (citing Strawbridge v. Curtiss , 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806) ). The improper joinder doctrine is a "narrow exception" to the complete diversity requirement and permits a court to disregard the state citizenship of an improperly joined, non-diverse defendant. McDonal v. Abbott Labs. , 408 F.3d 177, 183 (5th Cir. 2005). "The removing party bears the burden of establishing that federal jurisdiction exists." De Aguilar v. Boeing Co. , 47 F.3d 1404, 1408 (5th Cir. 1995). Here, the Pharmaceutical Defendants have not met that burden.

First, complete diversity does not exist. The Plaintiffs are citizens of Texas. All the Healthcare Defendants are citizens of Texas. (ECF No. 1-1 at 6–7.) The Pharmaceutical

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Defendants are citizens of Delaware, New York, and Illinois. (Id. ) Unless there is a finding that each and every Healthcare Defendant was improperly joined, complete diversity jurisdiction does not exist, and therefore this Court does not have jurisdiction over this suit.

The removing defendant can establish improper joinder in two ways: "(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 party in state court." Smallwood v. Ill. Cent. R.R. Co. , 385 F.3d 568, 573 (5th Cir. 2004). The Pharmaceutical Defendants are not alleging actual fraud, so the Court need only assess whether the Plaintiffs failed to establish a cause of action against each and every Healthcare Defendant. After reviewing Judge Garcia's thorough analysis, this Court agrees that the Plaintiffs have clearly alleged a specific cause of action against at least one of the non-diverse defendants—the Healthcare Defendants. Based on the details of Martinez's treatment and ultimate death, the Plaintiffs have clearly laid out a negligence cause of action under the Texas Medical Liability Act against at least one of the Healthcare Defendants.

In the alternative, the Pharmaceutical Defendants argue that the Healthcare Defendants have been fraudulently misjoined or that the claims against them should be severed from those against the Pharmaceutical Defendants. The Court is not convinced. For any of the claims against any Healthcare Defendant to be fraudulently misjoined, first the Court looks to whether the claims are joined appropriately under state law. Then, only if it concludes that joinder is inappropriate, the Court determines whether the joinder is fraudulent. In Texas, defendants may be joined if: (1) "there is asserted against them jointly, severally, or in the alternative any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences" and (2) at least "one question of law or fact common to all of them will arise in the action." TEX. R. CIV. P. 40(a). The Plaintiffs' negligence claims against the Healthcare Defendants arise out of the same transaction or occurrence as their products liability claims against the Pharmaceutical Defendants, specifically when examining the administration and prescription of the drug Toradol on Martinez. Finally, the Court does not find severing the claims against the Pharmaceutical Defendants and the Healthcare Defendants to be appropriate or efficient and therefore, declines to do so. Since the Pharmaceutical Defendants have failed to show that this Court has jurisdiction because the Healthcare Defendants have been improperly or fraudulently joined, the Court will not take the extreme step of severing the claims, as the Supreme Court has said to use this power "sparingly." Newman-Green, Inc. v. Alfonzo-Larrain , 490 U.S. 826, 837, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) ; see also FED. R. CIV. P. 20 & 21. The Court finds that the Pharmaceutical...