McDonal v. Abbott Laboratories

Decision Date06 June 2005
Docket NumberNo. 02-60773.,02-60773.
PartiesMable Annette Hughes McDONAL, Parent and Next Friend of Jamielee Hughes McDonal; Darryl A. McDonal, Parent and Next Friend of Jamielee Hughes McDonal, Plaintiffs-Appellants, v. ABBOTT LABORATORIES, et al., Defendants, Abbott Laboratories, Inc.; American Home Products Corp., doing business as Wyeth Laboratories; Wyeth-Ayerst; Wyeth-Ayerst Laboratories; Wyeth Lederle; Wyeth Lederle Vaccines; Lederle Laboratories; Aventis Pasteur Inc., Individually and as successor in interest to Connaught; Baxter International Inc.; Eli Lilly & Co.; Emerck; GDL International, Inc.; Glaxosmithkline, Individually, and as successor in interest to Smithkline Beecham Corp.; Merck & Company Inc.; Sigma Aldrich, Inc.; Spectrum Chemical Manufacturing Corp.; Urquima; Mitzi Ferguson, M.D.; Leslie Lamar Jones, M.D.; River Oaks Hospital, Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Nathaniel Austin Bosio, Dogan & Wilkinson, Pascagoula, MS, Charles S. Siegel (argued), Susan L. Hays, Waters & Kraus, Dallas, TX, for Plaintiffs-Appellants.

Richard L. Josephson, Baker Botts, Houston, TX, for Abbott Laboratories, Inc. and Merck & Co., Inc.

George Q. Evans, Eugene Randolph Naylor, Gaye Nell Currie, Wise, Carter, Child & Caraway, Jackson, MS, for Abbott Laboratories, Inc.

Christy D. Jones, Anita K. Modak-Truran, Butler, Snow, O'Mara, Stevens & Cannada, Jackson, MS, Richard William Mark, Orrick, Herrington, & Sutcliffe, New York City, for American Home Products Corp., Wyeth-Ayerst, Wyeth-Ayerst Laboratories, Wyeth Lederle, Wyeth Lederle Vaccines and Lederle Laboratories.

Bradley S. Wolff, Swift, Currie, McGhee & Hiers, Atlanta, GA, Richard Lee Jones, Robert L. Gibbs, Brunini, Gratham, Grower & Hewes, Jackson, MS, for Aventis Pasteur, Inc.

Donna Brown Jacobs, Lee Davis Thames, Butler, Snow, O'Mara, Stevens & Cannada, Jackson, MS, Joseph Kyle Fulcher, Baker Donelson Bearman, Jackson, MS, for Baxter Intern., Inc.

Deborah A. Moeller (argued), James J. Bartley, Shook, Hardy & Bacon, Kansas City, MO, for Eli Lilly & Co.

Roy C. Williams, Williams, Heidelberg, Steinberger & McElhaney, Pascagoula, MS, for GDL Intern., Inc.

Ross F. Bass, Jr., Tana Nicole Vollendorf, Phelps Dunbar, Jackson, MS, Sessions Ault Hootsell, III, John P. Manard, Jr., Phelps Dunbar, New Orleans, LA, Barclay A. Manley, Fulbright & Jaworski, Houston, TX, Marcy Hogan Greer, Fulbright & Jaworski, Austin, TX, for GlaxoSmithKline.

Mildred M. Morris, Watkins & Eager, Jackson, MS, for Merck & Co., Inc.

Neville Henry Boschert, John David Shaw, Watkins, Ludlam, Winter & Stennis, Jackson, MS, David Michael Macdonald, Amelia Susan Harris, David C. Colley, Macdonald Devin, Dallas, TX, for Sigma Aldrich, Inc.

Christopher W. Bayuk, Bayuk & Associates, San Diego, CA, for Spectrum Chemical Mfg. Corp.

Chris J. Walker, Markow, Walker & Reeves, Ridgeland, MS, for Ferguson and Jones.

Stephen P. Kruger, Page, Kruger & Holland, Jackson, MS, for River Oaks Hosp.

Appeal from the United States District Court for the Southern District of Mississippi.

Before HIGGINBOTHAM, STEWART and PRADO, Circuit Judges.

CARL E. STEWART, Circuit Judge:

In this products liability action, plaintiffs and Mississippi residents Mabel and Daryl McDonal ("the McDonals") filed suit against various foreign and local defendants— the manufacturers and distributors of Thimerosal, the manufacturers of the vaccines which contained Thimerosal, the doctors who administered the vaccines, and River Oaks Hospital. On appeal, the McDonals challenge the district court's denial of their motions for a remand to state court and the concomitant dismissal of their state law claims against both Mississippi resident and nonresident defendants. At the outset, we consider the threshold inquiry of subject matter jurisdiction, on the basis of complete diversity of citizenship, in order to ascertain whether the district court erred in its application of the improper joinder doctrine.1 We hold that the district court's denial of the plaintiffs motion to remand was appropriate, consequently, for slightly different reasons than asserted by the district court, we affirm in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

The McDonals, as the parents of four-year-old Jamielee Hughes McDonal ("Jamielee"), brought this action, on behalf of Jamielee, who suffers from profound mercury poisoning. The McDonals allege that Jamielee's poisoning was the result of her exposure to sizeable doses of mercury contained in a preservative, known as Thimerosal, used in childhood vaccines. Specifically, the McDonals allege that through a normal regimen of early childhood vaccinations, Jamielee built up a cumulative body burden of mercury nearly 30 times the permissible limit authorized by the Environmental Protection Agency.

On December 19, 2001, the McDonals commenced an action in Mississippi state trial court against various diverse and non-diverse defendants2 seeking to recover damages arising from Jamielee's poisoning. The complaint averred state law claims of strict liability, negligence, and breach of warranty against the manufacturers of vaccines (collectively, "the Vaccine defendants") and the manufacturers of thimerosal (collectively, "Thimerosal defendants"). The McDonals also alleged a claim for medical malpractice, against the two Mississippi physicians and the Mississippi hospital (collectively, "Healthcare defendants"), predicated on a theory of failure to warn of the inherent dangers embedded in potential side effects stemming from Thimerosal-containing vaccines and a failure to recommend Thimerosal-free vaccines.

On January 25, 2002, Eli Lilly and Company ("Eli Lilly") removed the action to federal court on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332 and federal question jurisdiction pursuant to 28 U.S.C. § 1331. Eli Lilly's removal petition contended that complete diversity existed on the basis that the resident Healthcare defendants had been improperly joined. Eli Lilly also contended that a federal question existed because, under the National Childhood Vaccine Act, 42 U.S.C. §§ 300aa-1 et seq., ("Vaccine Act"), the McDonals were barred from bringing a vaccine-related action against the healthcare defendants until first filing a petition for relief in the United States Court of Federal Claims ("Vaccine Court").

The McDonals subsequently moved for a remand to state court asserting that the removal to federal court was procedurally defective based on the failure of all defendants to timely join in removal. The McDonals also sought to remand on the grounds the Vaccine Act failed to present a sufficient federal question. Eli Lilly, opposing the remand motion, filed a motion to amend the removal petition to reflect consent to removal by two additional defendants, GDL International, Inc. ("GDL") and Spectrum Chemical Manufacturing Corp. ("Spectrum").3

On June 21, 2002, the district court granted Eli Lilly's request to add GDL and Spectrum to its petition for removal. Nevertheless, the district court granted the McDonals' motion to remand on the grounds that neither diversity nor federal question jurisdiction existed. The district court rejected Eli Lilly's improper joinder claim because, in the eyes of the district court, the McDonals' claims against the Healthcare defendants possessed a reasonable probability of recovery. The district court also rejected Eli Lilly's removal petition, under the well-pleaded complaint rule, on the grounds that an affirmative defense that raises a federal question is inadequate to confer federal jurisdiction. Subsequently, based on relatively new legal developments which had not been squarely considered by the district court, the Defendants filed a motion for reconsideration on the grounds that the Vaccine Court was the exclusive judicial venue charged with exercising jurisdiction over claims for alleged Thimerosal related injuries.

On August 1, 2002, the district court granted the Defendants' reconsideration motion. The district court issued an order finding that the McDonals' claims are implicitly vaccine-related, and fall within the purview of the Vaccine Act.4 Hence, from the district court's vantage point the resident Healthcare defendants were improperly joined, and diversity jurisdiction existed, because no reasonable probability existed that the McDonals' claims against the resident Healthcare defendants were cognizable without first exhausting those claims in the Vaccine Court prior to filing suit in state or federal court.

After finding subject matter jurisdiction proper, the district court then dismissed, sua sponte, the action as to all Defendants on the same basis that it affirmatively exercised jurisdiction—under the Vaccine Act, the McDonals' claims against both the diverse and non-diverse defendants must first be exhausted in the Vaccine Court prior to the McDonals filing an action in state or federal court. On appeal, the McDonals assert an error as to the propriety of the removal.

STANDARD OF REVIEW

We review de novo both the district court's order denying the McDonals' motion to remand and its decision that the non-diverse parties were improperly joined. Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 311 (5th Cir.2002).

DISCUSSION

On appeal, the McDonals posit that the district court erred in failing to remand this action to state court because the failure of all defendants to timely consent to removal presented a clear procedural defect. In the alternative, the McDonals contend that the district court erred in granting dismissal, pursuant to the Vaccine Act, for defendants that merely made preservatives instead of manufacturing or administering the vaccines themselves. At oral argument, the McDonals presented for the first time a third and additional challenge, this time to the propriety of the removal....

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