The opinion of the court was delivered by: DuBOIS, J.
This is a product liability action arising out of plaintiff Daniel B. Slater‟s use of Accutane, an acne treatment drug which, according to plaintiff, led to his development of colitis and ulcerative colitis. Plaintiff avers that defendants Hoffman-La Roche, Inc. and Roche Laboratories, Inc. (collectively, "Roche") failed to adequately investigate and warn patients about the risks and side effects of Accutane, and that defendant Wolters Kluwer Health, Inc. ("WKH") failed to supply adequate, complete, or accurate information and warnings in its patient education monographs for Accutane.
Presently before the Court is Plaintiff‟s Motion to Remand. Plaintiff argues that Roche could not remove this action from the Pennsylvania Court of Common Pleas because WKH is a citizen of Pennsylvania and Roche has not proven that WKH was fraudulently joined. For the reasons set forth below, plaintiff‟s motion is granted, and the Court remands the case to the Court of Common Pleas of Philadelphia County.
Beginning in the fall of 2002, plaintiff was prescribed and began using Accutane for acne treatment. (Compl. ¶ 31.) Plaintiff filled his Accutane prescriptions at Walgreens pharmacy, which provided him with WKH-prepared patient education monographs ("monographs") containing Accutane drug information and warnings. (Id. ¶¶ 25, 32.) After using Accutane for the period of time prescribed by his physician, plaintiff "experienced several adverse health effects culminating in a diagnosis of colitis and ulcerative colitis." (Id. ¶¶ 33-34.)
According to plaintiff, Accutane has a propensity to cause inflammatory bowel disease ("IBD"), a permanent condition that manifests itself as either Crohn‟s disease or ulcerative colitis. (Id. ¶ 13.) Plaintiff avers that Roche-the manufacturers of Accutane-failed to investigate and warn of Accutane‟s propensity to cause IBD despite being aware that the development of IBD is a potential side effect of Accutane. (Id. ¶¶ 19-22.) In addition, plaintiff alleges that WKH, a company that creates and publishes patient education monographs that are provided directly to consumers by their pharmacists, failed to provide, in the monographs that accompanied plaintiff‟s Accutane prescriptions, adequate, complete, or accurate information and warnings regarding the risks of taking Accutane and side effects relating to IBD. (Id. ¶¶ 23-30.)
Following his discovery of the "defective nature of Accutane and/or the associated injuries from Accutane‟s use," (id. ¶ 35), plaintiff filed a complaint in the Court of Common Pleas of Philadelphia County on November 3, 2010. Roche then removed plaintiff‟s case to this Court on November 29, 2010, alleging that WKH was fraudulently joined.
In 2004, the Judicial Panel on Multidistrict Litigation ("JPML") created a multi-district litigation ("MDL") in the Middle District of Florida for product liability actions involving Accutane. See In re Accutane Prods. Liab. Litig., 343 F. Supp. 2d 1382 (J.P.M.L. 2004). After Roche removed plaintiff‟s action to this Court, the JPML issued a Conditional Transfer Order (CTO) on December 6, 2010, ordering transfer of the case to the Middle District of Florida. (MDL No. 1626, Document No. 135.) Plaintiff filed an opposition to the CTO on December 13, 2010, thus staying transfer pending resolution of plaintiff‟s objection to the CTO. (Id., Document No. 137.) Roche filed a response to plaintiff‟s opposition to the CTO on February 3, 2011. (Id., Document No. 159.) As of the date of this Memorandum, the JPML has not yet ruled on plaintiff‟s opposition to the CTO.
The Court‟s jurisdiction under 28 U.S.C. § 1332 is not at issue in this case. The parties are completely diverse. Plaintiff is a citizen of Wisconsin; Hoffman-La Roche, Inc. is a New Jersey corporation with its principal place of business in New Jersey; Roche Laboratories, Inc. is a Delaware corporation with its principal place of business in New Jersey; and WKH is a Delaware corporation with its principal place of business in Pennsylvania. (Compl. ¶ 2.)
Unless WKH was fraudulently joined, the claims against it must be remanded to state court, as WKH is a citizen of Pennsylvania, (Compl. ¶ 2), and removal to federal court is permissible "only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which [the] action is brought." 28 U.S.C. § 1441(b). Plaintiff asserts that Roche has not met ...