McCallister v. Purdue Pharma L.P.

• Decision Date: 27 September 2001
• Docket Number: No. Civ.A. 2010543.,Civ.A. 2010543.
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Michael McCALLISTER and William Duffield, on behalf of themselves and all others similarly situated, Plaintiffs, v. PURDUE PHARMA L.P., et al., Defendants.

164 F.Supp.2d 783

Michael McCALLISTER and William Duffield, on behalf of themselves and all others similarly situated, Plaintiffs, v. PURDUE PHARMA L.P., et al., Defendants.

No. Civ.A. 2010543.

United States District Court, S.D. West Virginia, Charleston Division.

September 27, 2001.

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Marvin W. Masters, Masters & Taylor, L.C., Charleston, WV, Frank M. Armada, Armada, Rogers & Thompson, Hurricane, WV, for plaintiffs.

W. Henry Jernigan, Jr., Ramonda C. Lyons, Jackson & Kelly, Charleston, WV, Chilton D. Varner, King & Spalding, Atlanta, GA, for Purdue defendants.

Thomas R. Goodwin, Stephen P. Goodwin, Carrie G. Fenwick, Carte P. Goodwin, Goodwin & Goodwin, Charleston, WV, Paul Ferrell Strain, M. King Hill, III, Venable, Baetjer & Howard, Baltimore, MD, for Abbott defendants.

Michael J. Farrell, Paul T. Farrell, Jr, Farrell, Farrell & Farrell, L.C., Huntington, WV, for defendant Adams.

Don R. Sensabaugh, Jr., Amberly A. Warner, Flaherty, Sensabaugh & Bonasso, Charleston, WV, for defendant Hoffman.

MEMORANDUM OPINION AND REMAND ORDER

HADEN, Chief Judge.

Pending is Plaintiffs' motion to remand this action. For reasons discussed below, the motion is GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs filed a class action complaint on May 18, 2001 in the Circuit Court of Putnam County, West Virginia, on behalf of persons who have obtained and ingested OxyContin ("the drug") from a prescription written in West Virginia or from pharmacies or physicians in the state.¹ Defendants are Purdue Pharma, The Purdue Frederick Company, Purdue Pharmaceuticals, the P.F. Laboratories, Inc., and PRA Holdings, Inc. (collectively "Purdue"); Abbott Laboratories and Abbott Laboratories, Inc. (collectively "Abbott");² Jimmy Adams, D.O.; and Donald L. Hoffman, M.D. Purdue and Abbott manufacture and sell OxyContin. Drs. Adams and Hoffman allegedly prescribed the drug to the named class representatives.

The Complaint alleges OxyContin is an addictive and unreasonably dangerous drug. While making generic allegations standard to strict and negligent liability claims,³ Plaintiffs further allege Purdue and Abbott encouraged widespread use of OxyContin for off-label uses and doses, while misleading Plaintiffs, both by misrepresentation and omission, about the safety and effectiveness of the drug. Further, Plaintiffs allege Purdue and Abbott encouraged and enlisted physicians and others to mislead Plaintiffs to purchase and take the drug while withholding information about its dangers, particularly its addictiveness. According to the Complaint, the drug's addictive potential necessitates periodic diagnostic medical examinations of patients for whom it is prescribed.

Plaintiffs seek relief under the West Virginia Medical Professional Liability Act, W.Va.Code §§ 55B-7-1, et seq., and the state Unfair Trade Practices Act, W.Va. Code §§ 46A-6-101, et seq. Plaintiffs also sue under theories of outrage, product liability (including theories of negligence, strict liability and breach of express and implied warranties), misrepresentation, negligence, fraud and medical monitoring.

Defendants⁴ timely noticed removal to this Court based on federal question jurisdiction, pursuant to 28 U.S.C. § 1331.⁵ The drug companies argue OxyContin's main ingredient, oxycodone, is a highly regulated Schedule II narcotic, the manufacture, promotion and distribution of which is subject to comprehensive federal regulation under both the Controlled Substances Act, 21 U.S.C. §§ 801, et seq., and the Food, Drug and Cosmetic Act (FDCA), 21 U.S.C. § 321, et seq. They urge that Plaintiffs' claims challenge and seek to override this federal regulatory scheme. In particular, according to the drug companies, Plaintiffs would second-guess the federally-mandated content of warning labels and regulators' determinations of the appropriate uses for OxyContin. Defendants also propose Plaintiffs seek an injunction to modify the labeling for the drug, a claim they characterize as completely preempted by federal law. Finally, Defendants assert a need for federal jurisdiction to avoid contradictory pronouncements from state and federal courts.

II. DISCUSSION

A. Standard of Review

Because federal courts are courts of limited jurisdiction, removal statutes must be construed strictly against removal. Mulcahey v. Columbia Organic Chem. Co., Inc., 29 F.3d 148, 151 (4th Cir.1994). The party seeking to remove a case to federal court has the burden of establishing federal jurisdiction. Id. If federal jurisdiction is doubtful, a remand is necessary. Id.

B. Removal Jurisdiction

A defendant may remove any civil action, brought in a state court, "of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). Federal courts "have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. The most familiar explanation of "arising under," although one not dispositive of all questions and cases, is that of Justice Holmes: "A suit arises under the law that creates the cause of action." Franchise Tax Bd. of the State of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 8-9, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) (quoting American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 60 L.Ed. 987 (1916)).

Whether a particular civil action arises under the laws of the United States generally depends on application of the well-pleaded complaint rule. Under that test, "a cause of action arises under federal law only when the plaintiff's well-pleaded complaint raises issues of federal law."⁶ Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987) (citations omitted); see also Franchise Tax Bd., 463 U.S. at 10-11, 103 S.Ct. 2841. Federal courts enjoy removal jurisdiction only where "a right or immunity created by the Constitution or laws of the United States [is] an element, and an essential one, of the plaintiff's cause of action." Gully v. First Nat'l Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 81 L.Ed. 70 (1936).

The artful pleading doctrine is a corollary to the well-pleaded complaint rule. Under the doctrine, a plaintiff cannot frustrate a defendant's right of removal by carefully pleading the case without reference to any federal law. 14B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3722 (3d ed.1999). If a court concludes a plaintiff has "artfully pled" claims, it may uphold removal although no federal claim appears on the complaint's face. The two significant types of artful pleading involve state claims that are completely preempted or that necessarily involve a substantial question of federal law.⁷ Id. According to Defendants, Plaintiffs' claims fall under one or both categories of artful pleading. The Court examines each in turn.

1. Preemption: Field, Conflict and Complete

The Supremacy Clause of the United States Constitution, art. VI, cl. 2, supports federal preemption of state law. Congress may impliedly preempt state law by occupying an entire field of regulation (field preemption). Or federal law may preempt state law to the extent it actually conflicts with federal law so that either compliance with both is impossible or state law stands as an impediment to a federal purpose (conflict preemption). See Abbot v. American Cyanamid Co., 844 F.2d 1108, 1111 (4th Cir.1988). Field and conflict preemption are interposed as defenses to state claims (i.e., federal law made me do it or allows me to do it). As defenses, they do not appear on the face of a well-pleaded complaint, and, thus, do not authorize removal to federal court.⁸ Id.

In contrast, complete claim preemption provides removal jurisdiction. Where Congress so completely preempts a particular area by express design, any civil complaint raising this select group of claims is necessarily federal in character. Metropolitan, 481 U.S. at 63-64, 107 S.Ct. 1542. If "a federal cause of action completely preempts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily `arises under' federal law." Franchise Tax Bd., 463 U.S. at 24, 103 S.Ct. 2841. While such complete preemption⁹ is rare, the Supreme Court has held claims under Section 301 of the Labor Management Relations Act and Section 502(a) of the Employee Retirement Income Security Act completely preempt state law claims. The Supreme Court has not stated a test for complete preemption. Our Court of Appeals has focused upon the intent of Congress: "In deciding whether the preemptive force of [an] Act is so extraordinary that a state-law claim ... becomes federal in nature, the focus of our inquiry must be congressional intent." Rosciszewski v. Arete Assocs., Inc., 1 F.3d 225, 231 (4th Cir. 1993). Other circuits have drawn from Franchise Tax Board and Metropolitan more precise lessons. Under the Third Circuit test, for example, complete preemption exists only if: (1) "the statute relied upon by the defendant contains civil enforcement provisions within the scope of which the plaintiff's state claim falls" and (2) there is "a clear indication of a Congressional intention to permit removal despite the plaintiff's exclusive reliance on state law."¹⁰ Railway Labor Executives Ass'n v. Pittsburgh & Lake Erie R.R. Co., 858 F.2d 936, 942 (3d Cir.1988). Considering these standards, the Court examines Purdue and Abbott's arguments Plaintiffs' claims are completely preempted.

a. Plaintiffs Seek No Accurate Labeling Injunction

The drug companies first seek removal because Plaintiffs request an injunction requiring proper and accurate labeling of OxyContin, an area totally governed by federal law. Plaintiffs correctly respond they seek no such injunction. The only explicit injunctive relief sought in the Complaint asks "Equitable, injunctive and/or declaratory relief...