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Anthony R. Montgomery v. Hoffmann-La Roche

July 23, 2012


The opinion of the court was delivered by: McLaughlin, J.


This action arises out of the plaintiff's alleged injuries following ingestion of the prescription drug, Accutane. Defendants Hoffmann-La Roche, Inc. and Roche Laboratories, Inc. (collectively, the "Roche Defendants") removed this case from state court on the basis that non-diverse defendant Wolters Kluwer Health, Inc. ("Wolters") was fraudulently joined. The plaintiff moves to remand on the basis that removal was premature and that the defendants have not met their burden to show that joinder was fraudulent. The Court will grant the motion.

I. Factual & Procedural Background On June 15, 2011, the Court of Common Pleas of Philadelphia County established a mass tort litigation docket for cases involving the Accutane drug. Case management orders are entered in every mass tort litigation program to set the governing filing, motion, and discovery procedures and deadlines. See ECF No. 18-1.

The plaintiff, Anthony R. Montgomery, initiated this action as part of that mass tort litigation program by filing a writ of summons against Wolters on November 4, 2011. On November 18, 2011, the plaintiff filed a praecipe to reissue the writ of summons and add additional defendants. The reissued writ of summons named the Roche Defendants as well as Wolters. The writ informed the defendants that an action had been commenced against them under the court's mass tort program and referenced the Accutane drug. Praecipe to Issue Writ (ECF No. 1-3); Praecipe to Reissue Writ (ECF No. 1-5).

Pursuant to Case Management Order No. 1 in the Accutane Mass Tort Program, plaintiffs' counsel in the Accutane cases collectively filed a Master Long Form Complaint on December 1, 2011. That master complaint superceded all complaints filed previously and set forth the facts and legal contentions that govern all cases filed or that will be filed in the program. Case Management Order No. 1 ¶ III.A.1 (ECF No. 18-2).

The Master Long Form Complaint alleges the following with respect to defendant Wolters: Wolters was in the business of creating and marketing prescription drug information, warnings, and patient education monographs ("PEMs") intended to be provided to consumers by their pharmacists for the purpose of informing them about risks and side effects of drugs. Wolters promotes itself as an unbiased supplier of up-to-date scientific drug information, and claims that its PEMs are comprehensive. At the time the plaintiff filled his prescription for Accutane, he was provided a PEM containing information and warnings about the Accutane drug. The substance of the PEM provided to the plaintiff was "authored, analyzed, prepared, created, compiled, edited, evaluated, drafted, designed, distributed and supplied, directly or indirectly, by Wolters Kluwer." Master Long Form Complaint ¶¶ 32, 33 (ECF No. 18-3). Wolters contracted with pharmacies to provide PEMs regarding Accutane. The Accutane PEMs prepared by Wolters failed to warn patients about the full risks of taking the drug. Id. ¶¶ 15, 28, 29, 32, 34.

The Case Management Order also states that each plaintiff in an Accutane case shall file a Short Form Complaint within thirty days after the filing of a Master Answer to the Master Long Form Complaint or court approval of a Short Form Complaint, whichever is later. That Short Form Complaint must indicate which allegations and counts of the Master Long Form Complaint are incorporated by reference, and may allege additional causes of action and specific facts in support thereof. Case Management Order No. 1 ¶ III.A.3 (ECF No. 18-2); see also Short Form Complaint for Accutane Litig. ¶ 13 (ECF No. 18-4) (permitting plaintiff to assert additional facts and theories of recovery).

In May 2012, the plaintiff served the defendants with a completed Plaintiff's Fact Sheet ("PFS") in accordance with the time frame set forth in Case Management Order No. 3. Under the terms of that order, a completed PFS is treated the same as interrogatory answers and responses to requests for production under the Pennsylvania Rules of Civil Procedure. Case Management Order No. 3 ¶ III.A.2 (ECF No. 18-6). This plaintiff's PFS stated that he ingested Accutane from spring 2000 through summer 2001. He also listed the pharmacies where he filled his prescription for Accutane. Plaintiff's Fact Sheet 6, 8 (ECF No. 18-5).

On June 4, 2012, after the Master Long Form Complaint and the plaintiff's PFS had been filed, but before the plaintiff filed a Short Form Complaint, the Roche Defendants filed their notice of removal. The Roche Defendants premised subject-matter jurisdiction on diversity of citizenship, alleging that joinder of non-diverse forum defendant Wolters was fraudulent. The plaintiff subsequently moved to remand.

II. Analysis

As a preliminary matter, the Court considers and rejects the plaintiff's contention that removal is procedurally improper in every case where only a writ of summons and no complaint has been filed. The Court of Appeals for the Third Circuit has held that a writ of summons alone is not an "initial pleading" that triggers the removal period under 28 U.S.C. § 1446(b). Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 222-23 (3d Cir. 2005). Indeed, courts generally remand cases where a writ of summons but no complaint has been filed. See, e.g., Campbell v. Oxford Elecs., Inc., No. 07-0541, 2007 WL 2011484 (E.D. Pa. July 5, 2007). However, this case differs from a case in which the only filing at the time of removal is a writ of summons that contains the names of the parties and notice that an action has been commenced. The procedures of the Accutane Mass Tort Program which govern this case - and, in particular, the filing of a detailed Master Long Form Complaint and the plaintiff's PFS prior to removal - require a more nuanced analysis.

There may be cases where a Master Long Form Complaint, combined with the facts provided in a plaintiff's PFS, contain allegations sufficient to permit removal even in the absence of a Short Form Complaint. The allegations here, however, do not present such a case.

The Roche Defendants argue that joinder of Wolters was fraudulent because the plaintiff's ingestion of Accutane from spring 2000 through summer 2001 predates Wolters's acquisition of Medi-Span, the company that provided the PEMs at issue, and because the plaintiff has failed to plead any facts or theories supporting successor liability for Wolters. Defs.' Opp. to Remand 4. However, under the strict standard set forth in In re Briscoe, 448 F.3d 201 (3d Cir. 2006), the Court cannot find joinder fraudulent at this time because the defendants' argument requires the Court to reject the factual allegation in the Master Long Form Complaint that Wolters prepared the Accutane PEMs.

Joinder is fraudulent when there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention to prosecute the action against that defendant. But if there is even a possibility that a state court would find a complaint states a cause of action against any resident defendant, then the federal court must find joinder proper and remand the case to state court. In re Briscoe, 448 F.3d at ...

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