Simrell v. Teva Pharmaceutical USA Inc et al

Filing 46

MEMORANDUM OPINION. Signed by Chief Judge Karon O Bowdre on 8/2/2018. (KAM)

FILED
2018 Aug-02 AM 09:23
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

DANA DIXON SIMRELL, as
Administratrix of the Estate of
Frank Dixon,

]
]
]
]
Plaintiff,
]
]
v.
] Case No. 2:18-cv-00477-KOB
]
TEVA PHARMACEUTICALS USA, ]
INC., et al.,
]
]
Defendants.
]
MEMORANDUM OPINION
This matter is before the court on Plaintiff’s Motion to Remand this case to
the Circuit Court of Jefferson County, Alabama. (Doc. 11). On March 27, 2018,
Defendants Eon Labs, Inc. and Teva Pharmaceuticals USA, Inc., removed this case
based on diversity jurisdiction pursuant to 28 U.S.C. § 1332. (Doc. 1). The
removing Defendants concede the parties are not completely diverse, but argue that
Plaintiff fraudulently joined and/or misjoined the non-diverse Defendants and the
court should dismiss them from the action.
As explained below, this court concludes that the removing Defendants
failed to meet their burden of showing by clear and convincing evidence that no
Alabama State court could find that Plaintiff’s Complaint states a valid cause of
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action against the resident Defendants. Therefore, the removing Defendants failed
to establish fraudulent joinder, and Plaintiff’s motion to remand is due to be
GRANTED.
II.

FACTUAL BACKGROUND
On February 16, 2018, Plaintiff filed this action against Defendants Eon

Labs, Inc.; Teva Pharmaceuticals USA, Inc.; CVS Health Corporation; Wyeth
Pharmaceuticals, Inc.; Dr. William Maclean; and Dr. Adeeb Thomas in the Circuit
Court of Jefferson County, Alabama. (Doc. 1-1).1 Plaintiff sued the Defendants for
their respective roles in allegedly causing Mr. Dixon’s death. (Doc. 1-1). The
parties agree that the Defendant physicians are the only named Defendants who are
Alabama citizens.
According to the Complaint, Mr. Dixon died on February 18, 2016, of
“amiodarone toxicity and amiodarone induced interstitial lung disease.” (Doc. 1-1
at 2). The Complaint alleges the Defendant physicians prescribed Mr. Dixon’s
amiodarone, but never informed him of the risks associated with the drug or that he
was taking the drug for an off-label use. (Id. at 5, 13). Plaintiff also claims the
doctors “overprescribed” the drug and continued prescribing it even after Mr.
Dixon began suffering severe side effects. (Id. at 8).

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Plaintiff also sued 10 fictitious defendants. The court disregards them for purposes of determining fraudulent
joinder. 28 U.S.C. § 1441(b)(1).

2

Aside from the facts described above, the Complaint contains no further
allegations or details regarding the Defendant physicians’ treatment of Mr. Dixon
or the basis for their potential liability.
II.

LEGAL STANDARD
A defendant may remove a case from state court if the plaintiff could have

originally filed the action in federal court. See 28 U.S.C. § 1441(a). Generally,
federal courts have jurisdiction over civil cases where the amount in controversy
exceeds $75,000 and complete diversity between the parties exists. See 28 U.S.C §
1332; Triggs v. John Crump Toyota, 154 F.3d 1284, 1287 (11th Cir. 1998) (“every
plaintiff must be diverse from every defendant”).
Even if complete diversity is not present, an action may still be removable if
the plaintiff fraudulently joined the non-diverse parties to avoid federal
jurisdiction. See Triggs, 154 F.3d at 1287. Joinder is fraudulent in two
circumstances: 1) where no possibility exists that the plaintiff can prove a cause of
action against the resident defendant; or 2) where the complaint contains outright
fraud in the pleading of jurisdictional facts. See id. The Eleventh Circuit has also
recognized a related theory—fraudulent misjoinder. Fraudulent misjoinder occurs
when a plaintiff joins claims against a non-diverse defendant to the claims against
a diverse defendant even though the claims share “no real connection.” See id. at
1289.
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The court determines whether a party has been fraudulently joined “based
upon the plaintiff's pleadings at the time of removal, supplemented by any
affidavits and deposition transcripts submitted by the parties.” Pacheco de Perez v.
AT&T Co., 139 F.3d 1368, 1380 (11th Cir. 1998). To avoid remand, the removing
party must demonstrate by clear and convincing evidence that a plaintiff
fraudulently joined a resident defendant. See Florence v. Crescent Res., LLC, 484
F.3d 1293, 1297 n.2 (11th Cir. 2007). To do so, the removing party must show that
the plaintiff could not possibly state a claim against the resident defendant in state
court. Triggs, 154 F.3d at 1287. See also Tillman v. R.J. Reynolds Tobacco, 340
F.3d 1277, 1279 (11th Cir. 2003) (“[If] there is a possibility that a state court
would find that the complaint states a cause of action against any of the resident
defendants, the federal court must find that the joinder was proper and remand the
case to state court.”).
III. DISCUSSION
Fraudulent Joinder
Plaintiff ‘s Complaint asserts two counts against the Defendant physicians—
the only two non-diverse Defendants in this case. The first count against them
(Count Three of the Complaint) claims that the doctors acted negligently and/or
wantonly to cause or allow Mr. Dixon’s injuries. The second count against the
doctors (Count Four) alleges they violated the Alabama Medical Liability Act by
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breaching their legal duty of reasonable care, skill, and diligence in treating Mr.
Dixon.
To support these claims, Plaintiff alleges the Defendant physicians
negligently cared for and treated Mr. Dixon; negligently prescribed him
amiodarone; negligently prescribed him amiodarone for off-label uses not
approved by the FDA and in violation of state law; negligently continued
prescribing amiodarone to him after he began suffering adverse side effects; and
negligently prescribed amiodarone to him for long-term use. (Doc. 1-1 at 25–26).
While the Complaint does not provide specific dates on which the doctors treated
Mr. Dixon or prescribed the amiodarone, it alleges the Defendant physicians
committed the negligent acts in the months leading up to Mr. Dixon’s death on
February 18, 2016.
Defendant Eon Labs and Teva Pharmaceuticals argue that all of Plaintiff’s
claims against the Defendant physicians arise under the Alabama Medical Liability
Act, Ala. Code § 6-5-540 et seq., and fail to state a claim under the Act’s
heightened pleading requirements. Section 6-5-551 of the Act provides
In any action for injury, damages, or wrongful death, whether in
contract or in tort, against a health care provider for breach of the
standard of care the plaintiff shall include in the complaint filed in the
action a detailed specification and factual description of each act and
omission alleged by plaintiff to render the health care provided liable
to plaintiff . . . . Any complaint which fails to include such detailed
specification and factual description of each act and omission shall be
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subject to dismissal for failure to state a claim upon which relief can
be granted.
Plaintiff’s wrongful death claims against the Defendant physicians arise
under the AMLA, and its heightened pleading standard applies to the Complaint.
So, the court must consider the heightened pleading requirement in its fraudulent
joinder analysis. The court must apply the “pleading standards applicable in state
court, not the plausibility pleading standards prevailing in federal court” to
determine “whether it is possible that a state court would find that the complaint
states a cause of action.” Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1334 (11th
Cir. 2011).
The Supreme Court of Alabama has explained that § 6-5-551 requires
plaintiffs to “give the defendant health care provider fair notice of the allegedly
negligent act and must identify the time and place it occurred and the resulting
harm.” Mikkelsen v. Salama, 619 So. 2d 1382, 1384 (Ala. 1993). But, “[i]f the
complaint affords the defendant health care provider fair notice of these essential
elements, the court should strive to find that the complaint” satisfies the Act’s
heightened pleading requirements. Id.
In Mikkelsen, the court acknowledged that no prior cases specifically dealt
with § 6-5-551’s pleading requirements, and took advantage of the opportunity to
clarify the law. Id. In conducting its analysis, the court reviewed the facts in the
complaint. The court noted the plaintiff’s allegation that the defendant physician
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negligently failed to warn the patient or her family that she should not drive while
suffering from a particular mental disorder or while taking the medication that he
had prescribed her. The court also considered the plaintiff’s allegation that the
physician’s negligence caused the car accident that gave rise to the lawsuit. The
court determined these allegations satisfied the AMLA’s pleading requirements
and provided the defendant physician fair notice of the alleged negligent conduct
and resulting harm.
The court in Mikkelson also found the complaint satisfied the AMLA’s
“when” and “where” requirements despite the plaintiff’s apparent failure to
provide any specific date or place of the physician’s alleged negligence. While the
court noted specific examples of the plaintiff’s allegations of the physician’s
negligent act and the resulting harm, the court simply stated, without providing any
specific examples, that the complaint “sufficiently alleged the date and place of”
the physician’s negligent act. Id. Apparently, the court was satisfied that the
complaint asserted that the physician’s negligence occurred “prior to” the
plaintiff’s automobile accident. Id.
Plaintiff’s Complaint in this case is no less informative than the complaint in
Mikkelson. The Complaint alleges that the Defendant physicians negligently
treated Mr. Dixon by prescribing amiodarone for off-label use, prescribing the drug
without informing him of the risks involved, and continuing to prescribe it to him
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despite its adverse effects. The Complaint further alleges the doctors’ negligence
caused Mr. Dixon’s death on February 18, 2016. And while the Complaint does
not provide specifically when or where the negligence occurred, it clearly explains
that it occurred during the physicians’ treatment of Mr. Dixon in the months
leading up to his death in February 2016.
In light of the court’s analysis in Mikkelson, and its admonition that courts
“should strive to find that the complaint” satisfies the Act’s heightened pleading
requirements, this court finds that Plaintiff’s Complaint satisfies § 6-5-551 because
it “affords the defendant health care provider[s] fair notice” of the alleged
misconduct, the harm it caused, and when and where it occurred. Id. at 1384.
Defendants Eon and Teva assert that courts have “repeatedly” held that
“sparse and conclusory allegations” like those in Plaintiff’s Complaint “do not
satisfy the AMLA.” (Doc. 33 at 14). They cite two cases to support that
proposition, neither of which advances their argument.
The first case is Murray v. Prison Health Servs., Inc., 112 So. 3d 1103, 1107
(Ala. Civ. App. 2012). There, the complaint did not satisfy the AMLA’s pleading
requirements because it asserted only that the defendant “health-care provider
‘ha[d] knowingly and willingly violated’ the AMLA” and alleged no “specific act
of malpractice.” Id. Murray is clearly distinguished from the case at bar because

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Plaintiff has alleged how the Defendant physicians were negligent, and how their
negligence injured Mr. Dixon.
Defendants also cite Looney v. Moore, No. 2:13-CV-00733-KOB, 2014 WL
234676, at *11 (N.D. Ala. Jan. 22, 2014), a case that is also easily distinguished
from the present case. In Looney, this court held the complaint was deficient
because it failed to “describe when, how, or by whom the [injured patients] were
treated” or “any other details that would be relevant to the treatment, care,
monitoring, observing, discovering, and diagnosing of the [patients].” Id. Thus, the
complaint omitted basic information required to give the defendant healthcare
providers fair notice of the plaintiffs’ claims against them. In contrast, Plaintiff’s
Complaint in the present case provides the information that was glaringly absent in
Looney.
This court concludes that Plaintiff’s Complaint more closely aligns with the
satisfactory complaint in Mickelson than the deficient complaints in Murray and
Looney. Therefore, the court finds, at the very least, “a possibility” that an
Alabama court “would find that the complaint states a cause of action” against the
non-diverse Defendants in this case.” Tillman v. R.J. Reynolds Tobacco, 340 F.3d
1277, 1279 (11th Cir. 2003). Consequently, this court “must find that the joinder
was proper.” Id.

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Mutually Exclusive Claims
Defendants also assert that Plaintiff’s claims against the Defendant
physicians and pharmaceutical companies necessarily fail because they are
mutually exclusive. More specifically, they argue that the
thrust of the Complaint is that the physicians were unaware that
prescribing amiodarone for atrial fibrillation carried health risks
because the [pharmaceutical defendants] deceptively concealed that
information. Given that the physicians’ lack of knowledge of the
alleged dangers of the off-label use of amiodarone . . . is the crux of
Plaintiff’s liability theory with respect to the [Defendant physicians],
Plaintiff’s conclusory allegations that the Medical Malpractice
Defendants failed to adhere to acceptable standards of care by
prescribing amiodarone to the decedent makes no sense.
(Doc. 33 at 15).
Even if the court ignores the possibility of alternative pleadings, in Betts v.
Eli Lilly & Co., 435 F. Supp. 2d 1180, 1190–91 (S.D. Ala. 2006), the court rejected
the same argument under similar circumstances. As the court in Betts noted, the
proposed argument is logical: “[w]hen the allegations of such a complaint negate
the manufacturer as a source of information about the drug's risks, it follows that
the physician could not have known of the risks he failed to address.” Id. But,
“[t]he situation is entirely different when the complaint alleges that the physician
knew or should have known of the drug's dangers from other sources.” Id. “’[A]
specific allegation as to the source of such knowledge’” removes the apparent

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contradiction in the pleadings. Id. (quoting Omobude v. Merck & Co., 2003 U.S.
Dist. LEXIS 27006 at *6–7 (S.D. Miss.2003)).
In Betts, the court found that the complaint’s reference to “studies and
reports in the medical literature, as well as governmental and health organizational
advisories” . . . “support[ed] and even warn[ed] of a link between” a particular
medication and the adverse effects suffered by the patient. Id. at 1191. Therefore,
because the complaint alleged that sources existed other than the pharmaceutical
defendants from which the physician learned or could have learned of the drug’s
risks, the complaint provided sufficient facts to establish the physician’s “actual or
constructive awareness of the risks of which he failed to warn.” Id. Consequently,
the manufacturer’s alleged concealment did not negate the physician’s duty to
warn, and the claims were not mutually exclusive. Id.
In the present case, Plaintiff’s Complaint references governmental health
organizational advisories similar to those in the complaint in Betts. For example,
the Complaint states that the FDA’s Adverse Event Reporting System flagged
“numerous instances of catastrophic injuries caused by ingestion of amiodarone,”
and it alludes to “FDA warnings and thousands of adverse patient experiences”
regarding the medication. (Doc. 1-1 at 16). So, the Complaint asserts that
amiodarone’s dangers were well-documented, which allows for the possibility that
the Defendant physicians had actual or constructive knowledge of the drug’s risks
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while treating Mr. Dixon. Thus, following the court’s sound reasoning in Betts,
Plaintiff’s allegations that Eon and Teva concealed the dangers of amiodarone and
her allegations that the Defendant physicians breached their own duties regarding
the drug’s dangers are not mutually exclusive.
Fraudulent Misjoinder
Defendants also argue that the court should deny Plaintiff’s motion to
remand because Plaintiff fraudulently misjoined the resident Defendants.
Fraudulent misjoinder occurs when a plaintiff joins claims against a non-diverse
defendant to the claims against a diverse defendant, even though the claims share
“no real connection.” See Triggs v. John Crump Toyota, 154 F.3d 1284, 1289 (11th
Cir. 1998). To establish fraudulent misjoinder, Defendants must show not only that
the Plaintiff misjoined the resident defendants, but that the misjoinder is “so
egregious as to constitute fraudulent joinder.” Brooks v. Paulk & Cope, Inc., 176 F.
Supp. 2d 1270, 1274–75 (M.D. Ala. 2001) (citing Tapscott v.MS Dealer Service
Corp., 77 F.3d 1353, 1360 (11th Cir. 1996), abrogated on other grounds by Cohen
v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000)).
Rule 20(a)(2) of the Federal Rules of Civil Procedure allows a plaintiff to
join other defendants to an action when the claims arise out of the same transaction
or occurrence and present a common question of law or fact. Fed. R. Civ. P. 20(a).
Here, Plaintiff sued the manufacturers, distributers, pharmacy, and medical doctors
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associated with the amiodarone that allegedly caused Mr. Dixon’s death. While
Plaintiff’s claims against the pharmaceutical companies are distinguished from the
medical malpractice claims against the non-diverse physicians, Plaintiff seeks
recovery for one single injury—Mr. Dixon’s wrongful death, caused by
amiodarone.
Further, common questions of law and fact exist among the claims against
both sets of Defendants regarding the known risks of using amiodarone, the failure
to warn patients of those risks, Mr. Dixon’s use of amiodarone, and the injuries he
suffered as a result. See, e.g., Ash v. Providence Hosp., No. 08-0525-WS-M 2009
WL 424586, at *8 (S.D. Ala. Feb. 17, 2009) (holding that while plaintiff’s claims
against pharmaceutical defendants were distinguishable from those against medical
providers, the claims overlapped because plaintiff sought recovery for a single
injury and shared common issues of fact or law regarding the causes, nature, and
extent of plaintiff’s injuries).
The removing Defendants did not show that Plaintiff’s joinder of the nondiverse Defendants constitutes misjoinder, much less “egregious” misjoinder so as
to constitute fraudulent joinder. Plaintiff’s claims against all Defendants arise out
of the same occurrence and involve common questions of law and fact.
Consequently, the removing Defendants failed to establish that the court should
deny Plaintiff’s motion to remand because she fraudulently misjoined the resident
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Defendants.
Plaintiffs’ Request for Costs and Fees Pursuant to 28 U.S.C. § 1447(c)
Plaintiff seeks to recover costs and expenses she has incurred as a result of
Defendants’ removal pursuant to 28 U.S.C. §1447(c). The Supreme Court has
established that “courts may award attorney's fees under § 1447(c) only where the
removing party lacked an objectively reasonable basis for seeking removal.
Conversely, when an objectively reasonable basis exists, fees should be denied.”
Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005).
The Eleventh Circuit has further explained that, “the reasonableness
standard was ultimately the result of balancing the desire to deter removals sought
for the purpose of prolonging litigation and imposing costs on the opposing party,
while not undermining Congress’ basic decision to afford defendants a right to
remove as a general matter, when the statutory criteria are satisfied.” Bauknight v.
Monroe Cty, 446 F.3d 1327, 1329 (11th Cir. 2006).
Here, the removing Defendants’ argument based on the AMLA’s heightened
pleading requirements reflects an overly strict interpretation of those requirements,
as indicated by the very cases they cited. As explained above, Plaintiff’s Complaint
is no less informative than the complaint that the Supreme Court of Alabama
deemed sufficient in Mikkelson. Also, the Complaint is substantially more
informative than the deficient Complaints in Murray and Looney. In light of such
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clear case law, the court finds the removing Defendants lacked an objectively
reasonable basis for arguing that Plaintiff’s Complaint did not meet the AMLA’s
pleading standards.
The removing Defendants’ argument that Plaintiff’s claims necessarily fail
because they are mutually exclusive is equally unfounded in the case law. Given
the substantially similar argument and facts in Betts v. Eli Lilly & Co., 435 F.
Supp. 2d 1180, 1190–91 (S.D. Ala. 2006), this court finds that the removing
Defendants lacked an objectively reasonable basis for removal on the premise that
Plaintiff’s claims were mutually exclusive.
Finally, the court finds no objectively reasonable basis for the removing
Defendants’ argument involving fraudulent misjoinder. The Defendants failed to
provide any case law or persuasive argument that Plaintiff’s claims against the
pharmaceutical Defendants bore no connection with those against the Defendant
physicians; Plaintiff alleges that all the Defendants’ actions contributed to Mr.
Dixon’s death from amiodarone. Therefore, the removing Defendants had no
reasonable basis for alleging misjoinder under Rule 20(a)(2) of the Federal Rules
of Civil Procedure, much less “egregious” misjoinder so as to constitute fraudulent
misjoinder.
Therefore, the court will GRANT the Plaintiff’s request for attorneys fees
and costs pursuant to § 1447(c). The court reserves jurisdiction for the sole purpose
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of awarding those fees and costs. See Cooter & Gell v. Harmarx Corp., 496 U.S.
384, 395 (1990) (“It is well established that a federal court may consider collateral
issues after an action is no longer pending. For example, district courts may award
costs after an action is dismissed for want of jurisdiction.”); Stallworth v. Greater
Cleveland Reg’l Transit Auth., 205 F.3d 352, 257 (6th Cir. 1997) (District court
had jurisdiction to consider plaintiff’s application for attorneys fees after it
remanded the case); Montgomery & Larmoyeux by Montgomery v. Philip Morris,
Inc., 19 F.Supp. 2d 1334 (S.D. Fla. 1998) (District court retained jurisdiction to
award attorneys fees incurred as result of removal after case had been remanded).
Therefore, the court will DIRECT Plaintiff to file with the court an
accounting of the costs and fees that are recoverable pursuant to 28 U.S.C. §
1447(c) on or before August 17, 2018. The removing Defendants’ Response as to
the reasonableness of those fees, if any, will be due on or before August 24, 2018.
IV. CONCLUSION
The removing Defendants did not establish by clear and convincing
evidence that Plaintiff’s Complaint fails to state a possible cause of action against
the resident Defendants. They also failed to show that Plaintiff fraudulently
misjoined the resident Defendants. Therefore, the court will GRANT Plaintiff’s
motion and REMAND this case to the Circuit Court of Jefferson County, Alabama.

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