Hospital, supra, 552 F. Supp. at 840. The complaint against Squibb alleges that it manufactured and distributed a defective drug in 1955 which was ingested by plaintiff Abbe Dorfman's mother, and which was a proximate cause of the injuries sustained by plaintiff Scott Dorfman at birth. The complaint against the defendant obstetricians, on the other hand, alleges that those defendants were negligent in that, given the alleged abnormalities in Abbe Dorfman's reproductive system, they failed to provide reasonable medical care during her pregnancy in 1981. Although, as the defendant points out, the injuries sustained by the plaintiffs as a result of the defendants' alleged conduct are the same, in fact the complaint alleges entirely distinct causes of action against the defendants: the claim against Squibb involves the manufacture and distribution of D.E.S. in 1955, and the claim against the defendant-obstetricians involves the adequacy of the medical care which they rendered during Abbe Dorfman's pregnancy more than twenty-five years after the alleged torts committed by defendant Squibb. Clearly the complaint has set forth separate and independent claims against the defendants. In this case, in contrast to the situation presented to the Supreme Court in American Fire & Casualty Co. v. Finn, the "damage" may not have "come from a single incident," and the allegations against Squibb do not "involve substantially the same facts and transactions" as do the allegations against the defendant obstetricians. See Finn, supra, 341 U.S. at 16, 71 S. Ct. at 541. Moreover, this is not a case where the facts underlying the products liability claim and the medical malpractice claim are inextricably intertwined in a single incident involving the defendant physician's use of the defendant manufacturer's product, as in Bowerman v. Tomhave, supra, 414 F. Supp. 7 (E.D. Pa. 1975).
For all of these reasons this Court has determined that the complaint states a separate and independent cause of action against defendant Squibb within the meaning of 28 U.S.C. § 1441(c). Accordingly, the case was "removable" by defendant Squibb at the time the complaint was served in May of 1983, and Squibb's removal petition, filed in July of 1985, is therefore untimely.
It is well-settled that the removal statutes are to be construed strictly against removal and in favor of remand. Shamrock Oil Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S. Ct. 868, 872, 85 L. Ed. 1214 (1941); Abels v. State Farm Fire & Casualty Co., 770 F.2d 26, slip op. at 5 (3d Cir. 1985). On a motion to remand the burden is upon the defendant to establish that the case was properly removed to the federal court. Jones v. General Tire & Rubber Co., 541 F.2d 660 (7th Cir. 1976); Davis v. Baer, 599 F. Supp. 776, 779 (E.D. Pa. 1984); 1A Moore's Federal Practice, supra, P 0.168[4.-1], at 647. For the reasons set forth above this Court has determined that this action was not removed within the thirty day period provided for in 28 U.S.C. § 1446(b). Accordingly, an order will be entered remanding this case to the Court of Common Pleas of Philadelphia County.
AND NOW, this 21 day of August, 1985, upon consideration of the plaintiffs' motion to remand this case to the Court of Common Pleas of Philadelphia County, this Court having determined for the reasons stated in its Memorandum of August 21, 1985 that this matter was improvidently removed and hence this Court is without jurisdiction.
IT IS HEREBY ORDERED that the plaintiffs' motion to remand is GRANTED, and IT IS FURTHER ORDERED that this case is REMANDED to the Court of Common Pleas of Philadelphia County, and a certified copy of this Order shall be mailed by the Clerk of this Court to the Clerk of the Court of Common Pleas of Philadelphia County, together with all records and documents filed in this matter.
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