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In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Products Liability Litigation

United States District Court, Eastern District of Pennsylvania

May 12, 2014

IN RE DIET DRUGS (PHENTERMINE, FENFLURAMINE, DEXFENFLURAMINE) PRODUCTS LIABILITY LITIGATION MDL NO. 1203
v.
WYETH LLC, et al. THIS DOCUMENT RELATES TO: MAY NIEH, v.

MEMORANDUM IN SUPPORT OF SEPARATE PRETRIAL ORDER NO. 9234

Bartle, J.

Plaintiff May Nieh ("Ms. Nieh"), a California citizen, filed this multi-count lawsuit asserting only state law claims in the Superior Court of California as part of that court's Judicial Counsel Coordination Proceeding No. 4 032, In re: Diet Drug Litigation ("JCCP No. 4032"), against defendants Wyeth and Pfizer, Inc. (collectively, "Wyeth") and Thomas Tam, M.D. ("Dr. Tam"). Wyeth is a citizen of Delaware and New York, [1] while Dr. Tam is a citizen of California. Claiming that Dr. Tam was fraudulently joined, defendants removed the action to the United States District Court for the Central District of California on the basis of diversity of citizenship. 28 U.S.C. § 1332(a). The Judicial Panel on Multidistrict Litigation subsequently transferred the action to this court for all pretrial proceedings pursuant to 28 U.S.C. § 14 07 as part of the Diet Drugs MDL 1203. Before the court is plaintiff's motion to remand to the state court on the grounds that Wyeth's removal was untimely and that complete diversity of citizenship is lacking.[2] See Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996).

I.

Plaintiff alleges she suffered damages as a result of ingesting the diet drugs Pondimin (fenfluramine) and Redux (Dexfenfluramine), which were manufactured by Wyeth. The complaint states claims for negligence, deceit by concealment, negligent misrepresentation, and violations of the California Business and Professions Code against all three defendants. In addition, plaintiff asserts strict liability, negligence per se, and breach of implied and express warranties against Wyeth as well as medical negligence against Dr. Tarn.

As noted above, plaintiff and Dr. Tarn, who had prescribed diet drugs for her, are citizens of California. On the face of the complaint, subject matter jurisdiction is lacking. 28 U.S.C. § 1332(a); see also Caterpillar, 519 U.S. at 68. Wyeth, however, argues that Dr. Tarn was fraudulently joined. If so, Dr. Tarn must be dismissed, and the court would then have subject matter jurisdiction because Wyeth is not a citizen of California.

As an MDL court sitting within the Third Circuit, we apply our Court of Appeals' fraudulent joinder standard. See In re Korean Airlines Disaster, 829 F.2d 1171, 1174 (D.C. Cir. 1987). The analysis requires this court to decide whether there is a "reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendant or seek a joint judgment." In re Briscoe, 448 F.3d 201, 216 (3d Cir. 2006). Thus, " [i]f there is even a possibility that a state court would find the complaint states a cause of action against any one of the resident defendants, the federal court must find that joinder was proper and remand the case to the state court." Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990).

A defendant bears a heavy burden in seeking to have the court ignore the citizenship of a non-diverse defendant on the ground that he was fraudulently joined. Id. In determining whether a defendant has met its burden, we must "resolve all contested issues of substantive fact in favor of the plaintiff." Id. We also are cognizant of the fact that the removal statute must be construed narrowly, and "all doubts should be resolved in favor of remand." Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987). We are mindful that our inquiry into the claim of fraudulent joinder is less searching than what is permissible when a party seeks to dismiss a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Batoff v. State Farm Ins. Co., 977 F.2d 848, 852 (3d Cir. 1992). Simply because a claim against a party may ultimately be dismissed for failure to state a claim or is otherwise barred does not necessarily mean that the party was fraudulently joined. The test is whether a claim is colorable, that is, not "wholly insubstantial and frivolous." Id.

Wyeth maintains that fraudulent joinder exists because plaintiff's claim against Dr. Tarn for medical negligence is barred by California's medical negligence statute of limitations and because plaintiff's causes of action against Dr. Tarn for negligence, deceit by concealment, negligent misrepresentation, and violations of the California Business and Professions Code are improperly pleaded.[3] We will address each in turn.

II.

California's medical negligence statute of limitations provides that a suit against a medical practitioner must be brought within "three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever comes first." Cal. Civ. Proc. Code § 34 0.5. A plaintiff, therefore, must file a complaint for medical negligence (1) "within three years after the injury, unless one of the three enumerated exceptions applies" or (2) "within one year after said plaintiff discovers, or should have discovered, the injury." Steingart, 243 Cal.Rptr. at 681 (citing Hills v. Aronsohn, 199 Cal.Rptr. 816, 818 (Cal.Ct.App. 1984)). None of the three enumerated exceptions applies here.[4]

It is undisputed that plaintiff first began experiencing physical manifestations of her injury and sought treatment as early as January, 2010, when she reported "dyspnea and [lower extremity] swelling."[5] Plaintiff's physician, Raj an Saggar, M.D., stated that these were plaintiff's first pulmonary hypertension-related symptoms. Thus, according to Wyeth, plaintiff's complaint is barred by the three-year limitations period because plaintiff did not initiate her action until well after January, 2013.[6]

While plaintiff concedes she sought treatment for dyspnea and lower extremity swelling as early as January, 2010, she argues that the three-year statute of limitations did not begin to accrue until July 9, 2012, when she was diagnosed with primary pulmonary hypertension ("PPH").[7] According to plaintiff, her claim did not accrue earlier because "she did not know she had PPH, the physical manifestation of her injury and thus could not have known that diet drugs were implicated in her injury and thus she couldn't have known Dr. Tarn's prescription of diet drugs was the cause of her injury."[8]

Plaintiff misapprehends the three-year statute of limitations set forth in California Civil Procedure Code § 340.5. Unlike the one-year statute of limitations, which commences only when the plaintiff understands the negligent cause of her injury, the three-year statute of limitations begins to run when "[damage] has become evidenced in some significant fashion, whether or not the patient/plaintiff actually becomes aware of the injury." Marriage & Family Ctr. v. Pottel, 279 Cal.Rptr. 475, 478-79 (Cal.Ct.App. 1991).

In Marriage & Family Center, plaintiff brought a medical malpractice claim against her physician for psychological and emotional injuries resulting from a sexual encounter between the two of them in 1981. During her sessions with a subsequent therapist in 1985, plaintiff described these incidents but contended it was not until sometime in 1989, the same year she filed her complaint, that she was able to tie her injured psychological state to her prior therapist. Id. at 477-78. The court ruled that while plaintiff might have satisfied § 340.5's one-year statute of limitations, she had not satisfied its three-year statute of limitations. Id. at 478, 480. The court rejected the notion that "there is a correlation between manifestation of damage and the plaintiff's 'discovery' of the damage." The court explained, "damage is 'manifested' for purposes of commencing the three-year period when it has become evidenced in some significant fashion, whether or not the patient/plaintiff actually becomes ...


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