Hermeling v. Eli Lilly and Company

Filing 15

MEMORANDUM OPINION AND ORDER granting 7 MOTION to Remand; that this case is REMANDED to the Circuit Court of Crenshaw County, Alabama; DIRECTING the Clerk to take all steps necessary to effect the remand. Signed by Honorable William Keith Watkins on 2/3/2010. Certified Copy mailed to Clerk, Circuit Court of Crenshaw County.(wcl, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION D O N A L D HERMELING, P l a in tif f , v. E L I LILLY AND COMPANY, et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) )

C A S E NO. 2:09-CV-748-WKW [WO]

M E M O R A N D U M OPINION AND ORDER T h is cause is before the court on Plaintiff Donald Hermeling's ("Hermeling") Motion to Remand and accompanying brief. (Docs. # 7, 8.) Hermeling contends that Defendant Eli L illy and Company ("Eli Lilly") failed to establish the amount in controversy by a p re p o n d e ra n c e of the evidence as required under 28 U.S.C. § 1332, and seeks remand to the C irc u it Court of Crenshaw County, Alabama. Eli Lilly opposes the motion (Def.'s Resp. (D o c . # 12)), arguing that "it is readily deducible from the face of the Complaint that the a m o u n t in controversy exceeds $75,000." (Def.'s Resp. 3.) For the following reasons, H e rm e lin g 's motion to remand is due to be granted. I . BACKGROUND H e rm e lin g filed his complaint in the Circuit Court of Crenshaw County, Alabama, on Ju ly 6, 2009, asserting three claims arising out of his use of the drug Cialis, which is m a n u f ac tu re d by Eli Lilly. (Compl. (Doc. # 1, Ex. A).) The Complaint alleges the following f a c ts .

In 2007, Hermeling was prescribed 20 mg tablets of Cialis for treatment of erectile d ys f u n c tio n . (Compl. ¶ 6.) On the morning of July 30, 2007, after having taken a 20 mg d o s e of the drug the previous night, Hermeling woke up with severe vision loss in his left e ye . (Compl. ¶ 8.) Hermeling was subsequently diagnosed with Nonarteritic Anterior Isc h e m ic Optic Neuropathy ("NAION") and claims that his use of Cialis caused "irreversible v is io n loss and blindness in his left eye." (Compl. ¶¶ 6, 9.) Hermeling maintains that he was u n a w a re of any risks or side effects resulting in vision loss or blindness caused by taking C ia lis , and that such risks were never communicated to him. (Compl. ¶¶ 6, 7.) The damages a lleg e d are as follows: (1) "severe and permanent vision loss"; (2) "increased risk in health p ro b le m s " ; (3) past and future medical bills; (4) past and future "pain and suffering, mental a n g u i s h , anxiety and worry"; (5) "loss of enjoyment of life"; and (6) "past and future e c o n o m ic losses and income." (Compl. ¶¶ 5A-5F.) Hermeling further alleges that he is en titled to punitive damages. (Compl. ¶ 5.) II. STANDARD " [ F ]e d e ra l courts have a strict duty to exercise the jurisdiction that is conferred upon th e m by Congress." Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996). However, " [ f ]e d e ra l courts are courts of limited jurisdiction." Burns v. Windsor Ins. Co., 31 F.3d 1092, 1 0 9 5 (11th Cir. 1994). Thus, with respect to cases removed to this court pursuant to 28 U .S .C . § 1441, the law of the Eleventh Circuit favors remand where federal jurisdiction is n o t absolutely clear. "[R]emoval statutes are construed narrowly; where plaintiff and

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d e f en d a n t clash about jurisdiction, uncertainties are resolved in favor of remand." Burns, 31 F .3 d at 1095. W h e re the complaint alleges unspecified damages, as in this case, the removing party b e a rs the burden of establishing the jurisdictional amount by a preponderance of the e v id e n c e . Lowery v. Ala. Power Co., 483 F.3d 1184, 1209-10 (11th Cir. 2007). A removing d e f en d a n t can predicate jurisdiction either on the initial pleading, or "an amended pleading, m o tio n , order or other paper from which it may first be ascertained that the case is one which is or has become removable." 28 U.S.C. § 1446(b). Hence, "the defendant's appraisal of the a m o u n t in controversy . . . will ordinarily not provide grounds for his counsel to sign a notice o f removal in good faith." Lowery, 483 F.3d at 1215 n.63; see also Stroh v. Colonial Bank, N .A ., No. 4:08-cv-73, 2008 WL 4831752, at *2 (M.D. Ga. Nov. 4, 2008). Lowery, which narrowed the circumstances under which a defendant may remove an a c tio n , requires that the documents before the court on removal "unambiguously establish f e d era l jurisdiction." 483 F.3d at 1213. Thus, district courts in the Eleventh Circuit are not p e rm itte d to consider "evidence regarding the value of other tort claims," id. at 1221, and m a y not "speculate in an attempt to make up for the notice's failings." Id. at 1215. Instead, ju ris d ic tio n is appropriate only if the amount in controversy is "stated clearly on the face of th e documents before the court" or is "readily deducible" from those documents. Id. at 1211.

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I I I . DISCUSSION E li Lilly contends that the nature of the injuries, in addition to the claim for punitive d a m a g e s , unambiguously establishes that the amount of damages exceeds $75,000. S p e c if ica lly, Eli Lilly points to Hermeling's allegation that he suffered permanent injury to h is eye, and contends that "judicial experience and common sense" demonstrate that such a s e rio u s injury meets the jurisdictional threshold. Despite the serious nature of the alleged damages, exercising jurisdiction in this case w o u ld require impermissible guesswork. See Howell v. Fields Realty, LLC, No. 2:08-cv-492, 2 0 0 8 WL 2705383, at *1, 2 (M.D. Ala. July 10, 2008) (remanding where the plaintiff alleged p e rm a n e n t damages for a broken jaw, damaged teeth, and an injured shoulder); Carswell v. S e a rs Roebuck & Co., No. 2:06-cv-1098, 2007 WL 1697003, at *1 (M.D. Ala. June 12, 2007) (re m a n d in g where the plaintiff alleged damages for a head injury requiring surgery). Eli L illy cites Roe v. Michelin North America, Inc. for the proposition that even post-Lowery, d is tric t courts need not "suspend reality or shelve common sense" when deciding whether the jurisdictional threshold has been met. 637 F. Supp. 2d 995, 999 (M.D. Ala. 2009). In R o e , the court denied the plaintiff's motion to remand, applying "judicial experience and c o m m o n sense" to find that "a dispute in which the wanton conduct of a large company re s u lt[ e d ] in a death" satisfied the jurisdictional requirement. Id. Eli Lilly contends that this p r in c i p a l, when applied to the case at hand, demonstrates that the amount in controversy e x c ee d s $75,000. However, "judicial experience and common sense" do not lead to such a

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c le a r result. The alleged injuries in this case simply do not rise to the level of those alleged in Roe, and the court will not speculate as to the amount of damages resulting from the loss o f vision in one eye and the potential loss of vision in the other.1 I V . CONCLUSION A c c o rd in g ly, it is ORDERED that: (1 ) Hermeling's motion to remand is GRANTED; (2) this case is REMANDED to the Circuit Court of Crenshaw County, Alabama; and (3 ) the Clerk of the Court is DIRECTED to take all steps necessary to effect the re m a n d . DONE this 3rd day of February, 2010. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

Also important to the court's analysis in Roe was the limited means of recovery under Alabama's wrongful-death statute, which only allows recovery for punitive damages. 637 F. Supp. 2d at 999-1000. Because discretionary punitive damages "cannot be tied to concrete compensatory items," the court found that "wrongful-death damages will seldom, if ever, be reduced to dollar figures as a formal part of the litigation except in final settlement or at trial." Id. No such limitations exist in this case.

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