McNichols v. Johnson & Johnson

• Decision Date: 19 April 2006
• Docket Number: No. CIV. 06-160-GPM.,CIV. 06-160-GPM.
• Citation: 461 F.Supp.2d 736
• Parties: Jennifer McNICHOLS, Plaintiff, v. JOHNSON & JOHNSON, Ortho-McNeil Pharmaceutical, Inc., Johnson & Johnson Pharmaceutical Research & Development, LLC f/k/a R.W. Johnson Pharmaceutical Research Institute, and Walgreen Co., d/b/a Walgreens, Defendants.
• Court: U.S. District Court — Southern District of Illinois

461 F.Supp.2d 736

Jennifer McNICHOLS, Plaintiff, v. JOHNSON & JOHNSON, Ortho-McNeil Pharmaceutical, Inc., Johnson & Johnson Pharmaceutical Research & Development, LLC f/k/a R.W. Johnson Pharmaceutical Research Institute, and Walgreen Co., d/b/a Walgreens, Defendants.

No. CIV. 06-160-GPM.

United States District Court, S.D. Illinois.

April 19, 2006.

Roger C. Denton, Schlichter, Bogard & Denton, St. Louis, MO, Jerome J. Schlichter, Schlichter, Bogard, Swansea, IL, for Plaintiff.

Richard K. Hunsaker, Robert H. Shultz, Jr., William W. Blair, Heyl, Royster et al., Edwardsville, IL, for Defendants.

MEMORANDUM AND ORDER

MURPHY, Chief Judge.

This action is before the Court on Plaintiff Jennifer McNichols' Motion to Remand (Doc. 5). For the following reasons, the motion is GRANTED.

INTRODUCTION

Plaintiff Jennifer McNichols originally filed this action in the Circuit Court for the Third Judicial Circuit, Madison County, Illinois, asserting claims based upon strict products liability, negligence, consumer fraud, common-law fraud, and breach of warranty arising from personal injuries allegedly caused by Ortho Evra, a prescription contraceptive device manufactured by Defendants Johnson & Johnson, Crtho-McNeil Pharmaceutical, Inc., and Johnson & Johnson Pharmaceutical Research & Development, LLC (hereinafter, collectively, "the Johnson & Johnson Defendants").¹ McNichols alleges that Crtho Evra, a transdermal contraceptive patch, has a dangerous propensity to cause blood clots in users of the product and that, as a result of using Ortho Evra, she suffered a severe thrombosis and associated complications. The Johnson & Johnson Defendants removed the action to this Court, asserting that Defendant Walgreen Co. ("Walgreens"), which is, like McNichols, a citizen of Illinois, had been fraudulently joined to defeat federal diversity jurisdiction. McNichols has requested remand of the action to Illinois state court for lack of subject matter jurisdiction.

At issue here are Count IV and Count X of McNichols' complaint, which assert, respectively, a claim in strict products liability that Ortho Evra failed to conform to representations about the product made by the Johnson & Johnson Defendants and Walgreens and a claim for breach of warranty against Walgreens based upon McNichols' purchase of Ortho Evra at a Walgreens pharmacy in Glen Carbon, Illinois. The Johnson & Johnson Defendants contend that McNichols has fraudulently joined Walgreens because her claims against Walgreens are barred by the "learned intermediary" doctrine under Illinois law.

DISCUSSION

A. Legal Standard

Federal courts are courts of limited jurisdiction, with power to hear a case only if such power is granted by the Constitution and authorized by statute, and the presumption is that a case lies outside of this limited jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Application of County Collector of County of Winnebago, 96 F.3d 890, 895 (7th Cir.1996). Because a federal court's jurisdiction is limited, it has a "nondelegable duty to police the limits of federal jurisdiction with meticulous care." Market St. Assocs. Ltd. P'ship v. Frey, 941 F.2d 588, 590 (7th Cir.1991). See also Fed.R.Civ.P. 12(h)(3); Krueger v. Cartwright, 996 F.2d 928, 930 (7th Cir.1993). "[P]olicing the border of federal jurisdiction" is both a duty and a constitutional "necessity." Unified Catholic Schs. of Beaver Dam Educ. Ass'n v. Universal Card Servs. Corp., 34 F.Supp.2d 714, 717 n. 2 (E.D.Wis.1999).

Removal based on diversity jurisdiction requires that the parties be of diverse state citizenship and that the amount in controversy exceed $75,000, exclusive of interest and costs. See 28 U.S.C. § 1332; Id. § 1441. The party seeking removal has the burden of establishing federal jurisdiction. See Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993). "Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum." Id. Put another way, there is a strong presumption in favor of remand. See Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir. 1976). In evaluating diversity of citizenship, a court must disregard a defendant that has been fraudulently joined. See Schwartz v. State Farm Mut. Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir.1999). A defendant is fraudulently joined when "there is no possibility that a plaintiff can state a cause of action against [the] nondiverse defendant[] in state court, or where there has been outright fraud in plaintiffs pleading of jurisdictional facts." Gottlieb v. Westin Hotel Co., 990 F.2d 323, 327 (7th Cir.1993).

A defendant seeking removal based on fraudulent joinder has the "heavy" burden of proving that, after the court resolves all issues of law and fact in the plaintiffs favor, there is no possibility that the plaintiff can establish a cause of action against a diversity-defeating defendant in a state court. Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir.1992). See also Tom's Quality Millwork, Inc. v. Delle Vedove USA, Inc., 10 F.Supp.2d 1042, 1044 (E.D.Wis.1998). Moreover, this burden cannot be shifted to the plaintiff by, for example, pointing to formal defects in the plaintiffs submissions to the court. See McNutt v. General Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936) (a party asserting federal jurisdiction bears the burden of proving that a case is properly in federal court and may not "be relieved of his burden by any formal procedure"); Hart v. Bayer Corp., 199 F.3d 239, 247 n. 6 (5th Cir.2000) (fraudulent joinder is not established by a plaintiffs failure to plead up to the requirements of Rule 9(b) of the Federal Rules of Civil Procedure); Waterloo Coal Co. v. Komatsu Mining Sys., Inc., No. C2-02-560, 2003 WL 124137, at *4 (S.D.Ohio Jan.9, 2003) (same).

B. Fraudulent Joinder

I. Count IV of the Complaint (Strict Products Liability)

As discussed, Count IV of McNichols' complaint asserts a claim in strict products liability against the Johnson & Johnson Defendants and Walgreens. The Johnson & Johnson Defendants argue that this claim is barred by the learned intermediary doctrine, which provides that, where a manufacturer of a prescription drug gives adequate warning to physicians of the drug's known dangerous propensities, the manufacturer and pharmacists dispensing the drug are relieved of a duty to warn the drug's potential users; instead, the physicians, in turn, using their medical judgment, have a duty to convey the warnings to their patients. See Kirk v. Michael Reese Hosp. & Med. Ctr., 117 Ill.2d 507, 111 Ill.Dec. 944, 513 N.E.2d 387, 392 (Ill.1987); Fakhouri v. Taylor, 248 Ill.App.3d 328, 187 Ill.Dec. 927, 618 N.E.2d 518, 519-20 (Ill.App.Ct.1993); Leesley v. West, 165 Ill.App.3d 135, 116 Ill.Dec. 136, 518 N.E.2d 758, 761-62 (Ill.App.Ct.1988); Eldridge v. Eli Lilly & Co., 138 Ill.App.3d 124, 92 Ill.Dec. 740, 485 N.E.2d 551, 552-53 (Ill.App.Ct.1985).

The Court is skeptical about whether the learned intermediary doctrine is a proper basis for a claim of fraudulent joinder, as it implicates issues about foreseeability and causation germane to the liability of both the Johnson & Johnson Defendants and Walgreens. In Simmons v. Norfolk Southern Railway Co., 324 F.Supp.2d 914 (S.D.Ill.2004), the Court explained that a claim "of fraudulent joinder that "indicate[s] that the plaintiffs case [is] ill-founded as to all the defendants" is one which "manifestly [goes] to the merits of the action as an entirety, and not to the joinder" and is "not such as to require the state court to surrender its jurisdiction." Id. at 917 (quoting Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U.S. 146, 153-54, 34 S.Ct. 278, 58 L.Ed. 544 (1914)). The issue of whether the Johnson & Johnson Defendants gave adequate warning to physicians and users of Ortho Evra is at the heart of this case, and the Court questions whether a finding that Walgreens is shielded from liability by the learned intermediary doctrine might have preclusive effects with respect to the Johnson & Johnson Defendants as well. Presumably a determination that Walgreens is immune from liability under the learned intermediary doctrine would be the law of the case as to the Johnson & Johnson Defendants also. See Moore v. Anderson, 222 F.3d 280, 284 (7th Cir.2000) ("Under the law of the case doctrine, ... when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages of the same case."). See also Smallwood v. Illinois Cent. R.R. Co., 385 F.3d 568, 574 (5th Cir.2004) (explaining that, when a finding of fraudulent joinder will have law-of-the-case effect as to the liability of diverse defendants, the "jurisdictional" issue is in fact a challenge to the merits of a plaintiffs claim for relief that must be resolved in state court).

However, assuming for the sake of argument that the Johnson & Johnson Defendants have properly asserted the learned intermediary doctrine as the basis for their claim that Walgreens has been fraudulently joined, the Court finds nevertheless that the applicability of the doctrine presents questions of fact that must be resolved in state court. Under Illinois law, the learned intermediary doctrine is a shield against liability only where the manufacturer of a prescription drug has given adequate warning of known dangerous propensities of the drug to physicians:

Because the duty to warn is a duty to [a]dequately warn, it is imperative that the communication of the warnings be given in a manner reasonably calculated to reach the medical profession.

* * * * * *

[The warning] must be in such [f]orm that it could reasonably be expected to catch the attention of the reasonably prudent man in the circumstances of its use (here, the members of the medical profession).... [T]he [c]ontent of the warning must be of such a nature as to be...