Tinsley v. Streich, Civil Action No. 3:15CV00043.

• Citation: 143 F.Supp.3d 450
• Decision Date: 12 November 2015
• Docket Number: Civil Action No. 3:15CV00043.
• Court: U.S. District Court — Western District of Virginia
• Parties: Daisy TINSLEY, et al., Plaintiffs, v. Heather STREICH, MD, et al., Defendants.

143 F.Supp.3d 450

Daisy TINSLEY, et al., Plaintiffs,

v.Heather STREICH, MD, et al., Defendants.

Civil Action No. 3:15CV00043.

United States District Court, W.D. Virginia, Charlottesville Division.

Signed Nov. 12, 2015.

Jeffrey Alan Travers, Michael Joseph Miller, Timothy Andrew Litzenburg, The Miller Firm LLC, Orange, VA, for Plaintiffs.

Andrew G.H. Miller, William H. Archambault, Piedmont Liability Trust, Marc A. Peritz, Morin & Barkley LLP, Charlottesville, VA, Kelly Marie Lippincott, Carr Maloney, P.C., Washington, DC, Christopher Michele Corchiarino, Derek McIntosh Stikeleather, Jeffrey Jerome Hines, Goodell, Devries, Leech & Dann, LLP, Colleen K. O'Brien, Marisa A. Trasatti, Robert Edward Scott, Jr., Semmes, Bowen & Semmes, Baltimore, MD, Tyler Owen Prout, Semmes, Bowen & Semmes, Vienna, VA, for Defendants.

MEMORANDUM OPINION

GLEN E. CONRAD

, Chief Judge.

In this action, which was removed from the Circuit Court of the City of Charlottesville, plaintiffs Daisy Tinsley, on behalf of herself and as guardian of her daughter, Kaylee Twyman ("Kaylee"), and Jermaine Twyman assert claims against defendants Heather Streich, M.D. ("Dr. Streich"), Gary Fang, M.D. ("Dr. Fang"), University of Virginia Physicians Group Inc. ("UVA Physicians"), Precision Dose Inc. ("Precision"), L. Perrigo Company ("Perrigo"),¹ and Family Dollar Services Inc. ("Family Dollar"). This case is presently before the court on plaintiffs' motion to remand and Perrigo's motion to sever. For the reasons set forth below, the court will grant plaintiffs' motion and deny Perrigo's motion.

Background

I. Food and Drug Administration's Warnings About Acetaminophen

In 2008, the Food and Drug Administration ("FDA") released its "Drug Safety Newsletter" in which it stated that the occurrence of six cases of Stevens–Johnson Syndrome

("SJS")/toxic epidermal necrolysis ("TEN") in the past eight years was "critically important information" for the medical professions to consider when "assessing the risk benefit profile of a drug." Compl. ¶ 24, Docket No. 1, Ex. A. The FDA again warned about the risks of SJS/TEN in the following two editions of its newsletter.

On August 1, 2013, the FDA issued a warning to healthcare providers about the connection between acetaminophen

and severe, life-threatening skin conditions, such as SJS/TEN. It cautioned healthcare providers to be aware of this risk and instructed that "anyone developing a skin rash while taking [a]cetaminophen, stop the drug immediately." Id. ¶ 10. The FDA provided that it "will require that a warning be added to the labels of prescription drug products containing acetaminophen to address the risk of serious skin reactions." Id. ¶ 25. In addition, it will "request that manufacturers add a warning about serious skin reactions to the product labels of OTC acetaminophen drug products marketed under a new drug application" and would "encourage manufacturers of drug products marketed under the OTC monograph [to] do the same." Id.

II. Kaylee's Use of Acetaminophen

Daisy Tinsley and Jermaine Twyman are Kaylee's parents, and each plaintiff is a citizen of Virginia. Dr. Streich, Dr. Fang, and UVA Physicians (collectively, the "Virginia Healthcare Defendants") are also citizens of Virginia. Defendants Precision, Perrigo, and Family Dollar (collectively, the "Removing Defendants") are citizens of Illinois, Michigan, and North Carolina, respectively. Notice of Removal ¶¶ 5–7, Docket No. 1.

On or about October 7, 2014, Kaylee, who was five years old at the time, went to the emergency room at Culpeper Hospital with a minor fever, sore throat, and stomach ache. She was given a 320 mg cup of acetaminophen

by Justin C. Stone, M.D. and discharged with a diagnosis of "viral syndrome." Compl. ¶ 11. On or about October 24, 2014, Kaylee returned to the Culpeper Hospital's emergency room with "bilateral eye erythema, nasal congestion, and truncal skin rash without fever." Id. at ¶ 12. She was given a 211.204 mg cup of acetaminophen by Dr. Streich and sent home with a diagnosis of "viral exantham [sic] and viral conjunctivitis." Id. Dr. Streich also instructed Tinsley and Twyman to give Kaylee additional dosages of children's acetaminophen at home, which they did. The next day, Dr. Streich saw Kaylee at the University of Virginia's emergency department in Charlottesville, Virginia. At that point, Kaylee had a body rash, mouth sores, and fever. Dr. Streich gave her a 325 mg cup of acetaminophen and sent her home with a diagnosis of conjunctivitis and chicken pox.

On or about October 27, 2014, Kaylee returned to the University of Virginia's emergency department with a body rash that covered her upper and lower extremities, tongue, and lips. She was diagnosed with "varicella infection

with secondary staph superinfection involving mucosal membranes." Id. at ¶ 15. Her medical reports also noted that her symptoms and rash were possible signs of SJS/TEN. She was given vancomycin and clindamycin for a presumed staphylococcal superinfection. Id. That same day, dermatologist Barbara Wilson, M.D. also diagnosed Kaylee with "Erythema Multiforme major." Id. at ¶ 16. Kaylee was then admitted to the University of Virginia's Pediatric Intensive Care Unit under the care of Dr. Fang, who continued to give her acetaminophen. Kaylee continued to take acetaminophen from October 28, 2014 to November 4, 2014.

Kaylee was eventually diagnosed with TEN in addition to "polymicrobial bacterial sepsis

, shock, and respiratory failures." Id. at ¶ 19. On November 13, 2014, she was transferred to the Burn Unit at Shriners Hospital in Boston, Massachusetts. Two days later, Kaylee was also diagnosed with "distal necrosis" of her fingers, requiring amputation. She remained at Shriners Hospital from November 18, 2014 until March 20, 2015. Kaylee currently lives with her parents in Virginia. Plaintiffs allege that Kaylee suffered, and will continue to suffer from, various injuries, including "eye damage, vocal chord damage, scarring, loss of appendages, heart complications, and general debility." Id. at ¶ 23. She also suffers from emotional damage consistent with post-traumatic stress disorder.

III. Procedural History

On July 8, 2015, plaintiffs filed their complaint in the Circuit Court for the City of Charlottesville, alleging negligence and vicarious liability against the Virginia Healthcare Defendants and negligence against the Removing Defendants. On August 18, 2015, Perrigo filed a notice of removal in this court, claiming that jurisdiction is proper under 28 U.S.C. § 1332

. In its notice, Perrigo argued that although the Virginia Healthcare Defendants are citizens of Virginia, they were fraudulently misjoined and therefore their inclusion in the case does not defeat diversity jurisdiction. That same day, Perrigo filed a motion asking the court to sever the claims against the Virginia Healthcare Defendants from the claims against the Removing Defendants, so that the court may retain jurisdiction over the claims against the Removing Defendants. On August 24, 2015, plaintiffs filed a motion to remand the case back to state court, arguing that the Virginia Healthcare Defendants were properly joined and, thus, complete diversity between the parties is lacking. The motions have been fully briefed and were argued on September 14, 2015. They are now ripe for review.

Discussion

Defendants in civil actions filed in state court, who are not themselves citizens of that state, may remove a case if "the district courts of the United States have original jurisdiction" over the case. 28 U.S.C. § 1441(a)

. Federal courts have original jurisdiction over two kinds of civil actions. First, federal courts have original jurisdiction over civil actions that arise under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331 ; see also U.S. Const. art. III, § 2 ("The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made ..."). Second, federal courts have original jurisdiction over civil actions between citizens of different states, between U.S. citizens and foreign citizens, and by foreign states against U.S. citizens, so long as the amount in controversy exceeds $75,000.00. 28 U.S.C. § 1332 ; Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005). Diversity jurisdiction under § 1332 requires "complete diversity among parties, meaning that the citizenship of every plaintiff must be different from the citizenship of every defendant." Cent. W. Virginia Energy Co. v. Mountain State Carbon, LLC, 636 F.3d 101, 103 (4th Cir.2011).

If a plaintiff files an action in state court with respect to a matter over which the federal courts have original jurisdiction, the defendant may remove the case to the district court for the district in which the state court is located. 28 U.S.C. § 1441(a)

. A defendant may not remove a case, however, if the defendant is a citizen of the state in which the action was brought. Id. § 1441(b)

. In addition, "if at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). The removing party bears the burden of showing that removal is proper. Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 66 L.Ed. 144 (1921). Because removal jurisdiction raises "significant federalism concerns," the district court must strictly construe removal jurisdiction and, if federal jurisdiction is doubtful, "a remand [to state court] is necessary." Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir.1994). However, federal courts are obliged to carefully scrutinize challenges to jurisdiction authority and must "do more than simply point jurisdictional traffic in the direction of state courts." 17th Street Assocs., LLP v. Markel Int'l Ins. Co., 373 F.Supp.2d 584, 592 (E.D.Va.2005).

I. Consent to Removal

As an initial matter, pla...