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

United States District Court, E.D. Pennsylvania

May 14, 2014

IN RE: DIET DRUGS (PHENTERMINE, FENFLURAMINE, DEXFENFLURAMINE) PRODUCTS LIABILITY LITIGATION
v.
WYETH LLC, et al. THIS DOCUMENT RELATES TO: JAMES McGREW, Individually and as Administrator of the Estate of CAROLYN McGREW, No. 13-20007-HB

MEMORANDUM IN SUPPORT OF SEPARATE PRETRIAL ORDER NO. 9238

HARVEY BARTLE, III, District Judge.

Plaintiff James L. McGrew, ("Mr. McGrew"), individually and as administrator of the Estate of Carolyn McGrew, 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. 4032, In re: Diet Drug Litigation ("JCCP No. 4032"), against defendants Wyeth and Pfizer, Inc. (collectively, "Wyeth") and James L. Thomson, M.D. ("Dr. Thomson"). Wyeth is a citizen of Delaware and New York, [1] while Dr. Thomson is a citizen of California.

Claiming that Dr. Thomson was fraudulently joined, Wyeth 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. § 1407 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.

Mr. McGrew alleges that his wife, Carolyn McGrew ("Ms. McGrew"), died as a result of ingesting the diet drugs Pondimin (fenfluramine) and Redux (dexfenfluramine), which were manufactured by Wyeth. Plaintiff brings claims for negligence, deceit by concealment, negligent misrepresentation, violations of the California Business and Professions Code, and loss of consortium 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. Thomson.

As noted above, it is undisputed that plaintiff and Dr. Thomson, who had prescribed diet drugs for Ms. McGrew, are citizens of the State 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. Thomson was fraudulently joined. If so, Dr. Thomson 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 defendants have met their 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 claims against Dr. Thomson for medical negligence and loss of consortium are barred by California's medical negligence statute of limitations and because plaintiff's causes of action against Dr. Thomson 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 § 340.5. 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] Unlike the three-year statute of limitations, which begins to run when "[damage] has become evidenced in some significant fashion, whether or not the patient/plaintiff actually becomes aware of the injury, " the one-year period commences only when the plaintiff understands the negligent cause of her injury. Marriage & Family Ctr. v. Pottel, 228 Cal.App.3d 1647, 279 Cal.Rptr. 475, 478-79 (Cal.Ct.App. 1991).

Wyeth states that plaintiff's complaint, which was filed on July 10, 2013, is barred by§ 340.5's one-year statute of limitations because the medical negligence and loss of consortium claims asserted therein accrued on July 20, 2011, when one of Ms. McGrew's physicians, George L. Smith, M.D., "carefully explained" to Mr. and Ms. McGrew that Ms. McGrew had diet drug-related primary pulmonary hypertension ("PPH").[5] Plaintiff does not dispute that Dr. Smith actually communicated that Ms. McGrew had diet drug-related PPH on July 20, 2011; instead, he argues that the statute of limitations was tolled under the doctrine of intentional concealment because Dr. Thomson allegedly destroyed all the records related to Ms. McGrew's care and treatment. Wyeth argues, among other things, that any alleged intentional concealment does not toll the statute because Mr. and Ms. McGrew actually were on notice of the medical negligence claim.

We agree with Wyeth. In Rita M. v. Roman Catholic Archbishop , 232 Cal.Rptr. 685, 690 (Cal.Ct.App. 1986), the California Court of Appeals ruled that the plaintiff could not take advantage of any tolling doctrine because she was aware of the relevant facts. The court explained, "[W]e pause to note an obvious, albeit often overlooked proposition. The doctrine of fraudulent concealment [for tolling the statute of limitations] does not come into play, whatever the lengths to which a defendant has gone to conceal the wrongs, if a plaintiff is on notice of a potential claim.'" Id . As plaintiff does not dispute that Dr. Smith told him and Ms. McGrew that she had diet drug-related PPH on July 20, 2011, plaintiff was on actual notice of the potential claim at ...


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