Thompson v. Merrell Dow Pharmaceuticals, Inc., No. 84-3418
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
| Writing for the Court | Before JONES and KRUPANSKY, Circuit Judges, and HULL; NATHANIEL R. JONES |
| Citation | 766 F.2d 1005 |
| Parties | Larry James Christopher THOMPSON, et al., Plaintiffs-Appellants, v. MERRELL DOW PHARMACEUTICALS, INC., Defendant-Appellee. |
| Decision Date | 15 July 1985 |
| Docket Number | No. 84-3418 |
Page 1005
v.
MERRELL DOW PHARMACEUTICALS, INC., Defendant-Appellee.
Sixth Circuit.
Decided July 15, 1985.
George A. Kokus (argued), Cohen and Kokus, Miami, Fla., Stanley M. Chesley, Waite, Schneider, Bayless and Chesley, Co., L.P.A., Cincinnati, Ohio, Allen T. Eaton, Washington, D.C., for plaintiffs-appellants.
Frank C. Woodside, III (LC) (argued), Cincinnati, Ohio, Christine L. McBroom, Peter N. Perretti, Jr. (argued), Riker, Danzig, Scherer & Hyland, Morristown, N.J., for defendant-appellee.
Before JONES and KRUPANSKY, Circuit Judges, and HULL, Chief District Judge. *
NATHANIEL R. JONES, Circuit Judge.
This appeal presents the issue of whether actions filed in state court are properly removable to federal court if the complaints allege in part that the defendant violated the Food, Drug and Cosmetic Act and that this violation constituted "a rebuttable presumption of negligence." Plaintiffs-appellants contend that these cases presented no federal question upon which removal could be properly based. We agree and reverse and remand.
Plaintiffs-appellants, the Thompsons and the MacTavishes, are residents of Scotland and Canada respectively. They filed their complaints against defendant-appellee, Merrell Dow Pharmaceuticals, Inc., in the Court of Common Pleas, Hamilton County,
Page 1006
Ohio. The complaints alleged that Mrs. Thompson and Mrs. MacTavish ingested Bendectin, a drug developed, produced, manufactured, and sold by Merrell Dow, and that the ingestion of the drug resulted in the birth defects suffered by both Jessica Thompson and Neil MacTavish. Each complaint alleged liability based upon the state-created theories of common law fraud, negligence, strict liability, and breach of warranty. They also alleged that Merrell Dow violated certain provisions of the Food, Drug and Cosmetic Act, 21 U.S.C. Secs. 301-392 (FDCA) and that those violations establish a rebuttable presumption of negligence. Pursuant to 28 U.S.C. Sec. 1441, Merrell Dow removed these actions to the district court where they were consolidated. Plaintiffs filed a motion to remand under Sec. 1447(c) for lack of subject matter jurisdiction. The district court denied plaintiffs' motion to remand and granted Merrell Dow's motion to dismiss on the ground of forum non conveniens. Appellants then filed this appeal.Removal...
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Her Majesty The Queen In Right of the Province of Ontario v. City of Detroit, Nos. 88-1217
...de novo. See, e.g., Miller v. Norfolk & Western Ry. Co., 834 F.2d 556 (6th Cir.1987); Thompson v. Merrell Dow Pharmaceuticals, Inc., 766 F.2d 1005 (6th Cir.1985), aff'd, 478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). B. Artful Pleading Although the district court acknowledged that the......
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Milan Exp. Co., Inc. v. Western Sur. Co., No. 88-5960
...law. Thus, the jury could have easily found the defendant to be negligent, but not in violation of the FDCA. See Thompson v. Merrell Dow, 766 F.2d 1005, 1006 (6th Cir.1985), aff'd, 478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). By contrast, the present plaintiffs have relied exclusive......
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Merrell Dow Pharmaceuticals Inc v. Thompson, No. 85-619
...805 and Scotland are not sufficient to give a state-based FDCA claim status as a jurisdiction-triggering federal question. Pp. 807-817. 766 F.2d 1005 (CA 6 1985), affirmed. STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL, REHNQUIST, and O'CONNOR, JJ., join......
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Drake v. Cheyenne Newspapers, Inc., No. 93-CV-0339-B.
...that the causes of action alleged in the complaint did not "arise under" federal law. See Thompson v. Merrell Dow Pharmaceuticals, Inc., 766 F.2d 1005 (6th Cir.1985). After concluding that the FDCA did not, either expressly or impliedly, create a private right of action, the court reasoned ......
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Her Majesty The Queen In Right of the Province of Ontario v. City of Detroit, Nos. 88-1217
...de novo. See, e.g., Miller v. Norfolk & Western Ry. Co., 834 F.2d 556 (6th Cir.1987); Thompson v. Merrell Dow Pharmaceuticals, Inc., 766 F.2d 1005 (6th Cir.1985), aff'd, 478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). B. Artful Pleading Although the district court acknowledged that the......
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Milan Exp. Co., Inc. v. Western Sur. Co., No. 88-5960
...law. Thus, the jury could have easily found the defendant to be negligent, but not in violation of the FDCA. See Thompson v. Merrell Dow, 766 F.2d 1005, 1006 (6th Cir.1985), aff'd, 478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). By contrast, the present plaintiffs have relied exclusive......
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Merrell Dow Pharmaceuticals Inc v. Thompson, No. 85-619
...805 and Scotland are not sufficient to give a state-based FDCA claim status as a jurisdiction-triggering federal question. Pp. 807-817. 766 F.2d 1005 (CA 6 1985), affirmed. STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL, REHNQUIST, and O'CONNOR, JJ., join......
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Drake v. Cheyenne Newspapers, Inc., No. 93-CV-0339-B.
...that the causes of action alleged in the complaint did not "arise under" federal law. See Thompson v. Merrell Dow Pharmaceuticals, Inc., 766 F.2d 1005 (6th Cir.1985). After concluding that the FDCA did not, either expressly or impliedly, create a private right of action, the court reasoned ......