Potts et al v. Auxilium Pharmaceuticals, Inc. et al

Filing 18

MEMORANDUM Opinion and Order written by the Honorable Matthew F. Kennelly on 3/2/2015. The Court grants plaintiffs' motion to remand (Case No. 14 C 1748, dkt. no. 419 ). Case No. 14 C 7902 is hereby remanded to the Circuit Court of Baldwin County, Alabama. Mailed notice.(pjg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

IN RE: TESTOSTERONE
REPLACEMENT THERAPY
PRODUCTS LIABILITY LITIGATION
----------------------------------------------------This document relates to: Potts v.
Auxilium Pharmaceuticals, Inc.,
Case No. 1:14-cv-00345 (S.D. Ala.)

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Case No. 14 C 1748
MDL No. 2545

Case No. 14 C 7902

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge.
This case is before the Court on a motion to remand by plaintiffs Brian and
Sandra Potts. Plaintiffs ask the court to remand the case to the Circuit Court of Baldwin
County, Alabama, where they initially filed the case. For the reasons stated below, the
Court grants plaintiffs’ motion to remand.
Background
Brian Potts and Sandra Potts, who are husband and wife, filed this suit in the
Circuit Court of Baldwin County, Alabama. Plaintiffs asserted claims against Auxilium
Pharmaceuticals, Inc., which manufactures, sells, and distributes a pharmaceutical
product called Testim, and against Dr. Gregory Funk, who prescribed Testim for Brian
Potts. Plaintiffs allege that Mr. Potts developed blood clots in his legs and pulmonary
embolisms in both lungs from taking Testim.
Plaintiffs have sued Auxilium for strict product liability, negligence, breach of
implied and express warranties, misrepresentation, and fraud. They assert a claim of
medical malpractice against Dr. Funk. Specifically, plaintiffs allege that Dr. Funk

deviated from the applicable standard of care in prescribing Testim to Mr. Potts by
failing to check his blood testosterone levels before and during his treatment with the
drug and by prescribing Testim for an "off label" use and without first making a
diagnosis of hypogonadism, the condition for which Testim is an approved medication.
Compl. ¶101.
Auxilium removed the case to the Southern District of Alabama based on
diversity of citizenship. The Judicial Panel on Multidistrict Litigation then transferred the
case to this Court.
The plaintiffs and Auxilium are of diverse citizenship, but Dr. Funk, like plaintiffs,
is a citizen of Alabama. Auxilium and Dr. Funk contend, however, that plaintiffs have no
viable claim against Dr. Funk and that they named him as a defendant in an attempt to
defeat diversity jurisdiction. Plaintiffs disagree and have moved to remand the case to
state court. Seventh Circuit law governs the Court's decision on the motion to remand.
In multidistrict litigation, procedural matters are governed by the law of the transferee
court. See, e.g., In re Pradaxa (Dabigatran Etexilate Prods. Liab. Litig.), No. 3:12–md–
02385–DRH–SCW, 2013 WL 656822, at *2 (S.D. Ill. Feb 22, 2013)l; In re Darvocet,
Darvon & Propoxyphene Prods. Liab. Litig., 889 F. Supp. 2d 931, 936 n.7 (E.D. Ky.
2012) (fraudulent joinder issue); Various Plaintiffs v. Various Defendants (Oil Field
Cases), 673 F. Supp. 2d 358, 362 (E.D. Pa. 2009).
The parties' dispute involves the doctrine of "fraudulent joinder," the term used to
describe a plaintiff's naming of a non-diverse defendant to destroy diversity of
citizenship and preclude removal to federal court. See, e.g., Walton v. Bayer Corp., 643
F.3d 994, 999 (7th Cir. 2011). In this circuit, a defendant is considered to be

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fraudulently joined, and its citizenship is disregarded for diversity purposes, if, "after
resolving all issues of fact and law in favor of the plaintiff," the plaintiff’s claim has "no
chance of success" against the in-state defendant. Poulos v. Naas Foods, Inc., 959
F.2d 69, 73 (7th Cir. 1992); see also Walton, 643 F.3d at 999. The question the Court
must decide is whether "there [is] any reasonable possibility that a state court would rule
against the non-diverse defendant." Poulos, 959 F.2d at 73. If so, the defendant is not
considered to have been fraudulently joined.
Defendants argue that plaintiffs' medical malpractice claim against Dr. Funk has
no chance of success because it is barred by Alabama’s two-year statute of limitations
or its four-year statute of repose. Ala. Code § 6-5-482(a). The Court applies the
substantive law of the transferor forum, Alabama, to determine this issue. See, e.g.,
Chang v. Baxter Healthcare Corp., 599 F.3d 728, 732 (7th Cir. 2010) (in multidistrict
litigation, the transferee court applies the substantive law of the transferor court).
Section 6-5-482 of the Alabama Medical Liability Act provides that a medical
malpractice claim against a physician must be commenced
within two years after the act, or omission, or failure giving rise to the
claim, and not afterwards; provided, that if the cause of action is not
discovered and could not reasonably have been discovered within such
period, then the action may be commenced within six months from the
date of such discovery or the date of discovery of facts which would
reasonably lead to such discovery, whichever is earlier; provided further,
that in no event may the action be commenced more than four years after
such act.
Ala. Code § 6-5-482(a). This statute contains both a period of limitations and a period
of repose.
The Court begins with the four-year statute of repose. As indicated earlier,
plaintiffs filed this lawsuit on June 25, 2014. It is not one hundred percent clear from the
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complaint when plaintiffs allege that Dr. Funk prescribed Testim for Mr. Potts. They
allege that "[a]fter taking multiple doses of Testim, on or about June 25, 2010, and
within six months of the date of his first use of Testim," Mr. Potts was diagnosed with
blood clots in his legs and pulmonary embolisms in both lungs. Compl. ¶ 48.
Defendants read this as indicating that Dr. Funk prescribed Testim for Mr. Potts in
January 2010. See Def. Dr. Funk's Resp. to Pls.' Mot. to Remand at 3; Def. Auxilium's
Mem. in Opp. to Pls.' Mot. for Remand at 2.
Defendants contend that the date Dr. Funk prescribed Testim for Mr. Potts—
January 2010, or at least before June 25, 2010—is when the "act . . . giving rise to the
claim" occurred. They rely, however, on cases in which the legal injury occurred
simultaneously with the allegedly negligent act. In Ex parte Hodge, 153 So. 3d 734
(Ala. 2014), the defendant surgeon left a foreign object in the plaintiff during surgery.
The plaintiff "suffered an actionable legal injury at the time of the surgery . . ., regardless
of when or to what extent the complications from the negligent act would be
discovered." Id. at 745. In Grabert v. Lightfoot, 571 So. 2d 293 (Ala. 1990), the
defendant conducted surgery to repair a hernia but failed to locate and repair it. In that
case, the legal injury occurred immediately. "[I]t was immediately after the first,
unsuccessful operation that the plaintiff was entitled to maintain an action against the
surgeon. Because of the alleged negligence of the first surgeon, the plaintiff had
'suffered' a surgery that availed him nothing." Hodge, 153 So. 3d at 743 (citing Grabert,
571 So. 2d at 294). Finally, in Tobiassen v. Sawyer, 904 So. 2d 258 (Ala. 2004), the
defendant failed to diagnose a stroke despite his symptoms and instead discharged him
from the hospital, and the plaintiff suffered another stroke four days later. See id. at

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261. The Supreme Court of Alabama said in Hodge that in Tobiassen, as in Grabert
and Hodge, "the act of alleged medical malpractice immediately caused an identifiable
injury to the complaining party and that injury fell outside the applicable time period . . .
." Hodge, 153 So. 3d at 743 (citing Tobiassen).
This case, however, is not one in which the legal injury occurred simultaneously
with the alleged wrongful act. There is no basis to believe that Mr. Potts's legal injury—
his development of blood clots and pulmonary embolisms from taking Testim—occurred
simultaneously with Dr. Funk's prescription of the medication. The only allegation in the
complaint regarding the manifestation of symptoms is the June 25, 2010 date on which
Mr. Funk was diagnosed. When "the wrongful act or omission and the resulting legal
injury do not occur simultaneously, the cause of action accrues and the limitations
period of § 6-5-482 commences when the legal injury occurs." Mobile Infirmary v.
Delchamps, 642 So. 2d 954, 958 (Ala. 1994). That is the situation in this case. On the
present record, which includes only plaintiffs' complaint, the Court cannot say with any
certainty that the "legal injury" occurred more than four years before June 25, 2014. As
a result, the Court cannot say at this stage of the case that it is clear that the four year
statute of repose bars plaintiffs' claims against Dr. Funk.
Defendants also argue that plaintiffs’ medical malpractice claim against Dr. Funk
is barred by section 6-5-482's two-year statute of limitations. Under Mobile Infirmary,
plaintiffs' cause of action accrued when the legal injury occurred. Mobile Infirmary, 642
So. 2d at 958. As indicated earlier, plaintiffs allege that Mr. Potts was diagnosed with
pulmonary embolisms in both lungs and blood clots in his legs on or about June 25,
2010. Compl. ¶ 48. Based on the complaint's allegations, that is when the legal injury

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occurred, not eighteen months later, when plaintiffs allege that Mr. Potts first became
aware of a connection between his use of Testim and the clots and embolism. Id. ¶ 49.
If the limitations clock started running on June 25, 2010, plaintiffs' claim against
Dr. Funk is time-barred. Plaintiffs rely, however, on the six-month "safe harbor" found in
section 6-5-482(a). Under that provision, when "the cause of action is not discovered
and could not reasonably have been discovered" within the two-year limitations period,
then the plaintiff may sue "within six months from the date of such discovery or the date
of discovery of facts which would reasonably lead to such discovery, whichever is
earlier.' Ala. Code § 6-5-482(a). This provision focuses not on discovery of the
plaintiff's injury but rather on the plaintiff's discovery of "the cause of action," in other
words, the wrongful cause of the injury.
Plaintiffs claim that they were "unaware of any connection between his use of
Testim and the clots in his legs and pulmonary embolisms in his lungs" until March 31,
2014. Compl. ¶ 49. Defendants argue that there was ample information available to
plaintiffs in June 2010 that would have enabled them to discover the correlation
between Mr. Potts’s injuries and his use of Testim. See Def. Auxilium's Mem. in Opp. to
Pls.' Mot. to Remand at 8-9. This argument, however, involves factual determinations
that the Court cannot appropriately make in the present posture of the case. Though
defendants ultimately may succeed in establishing their limitations defense, the Court
cannot say, as governing Seventh Circuit case law requires, that plaintiffs have "no
chance of success" on this issue or that "there [is no] reasonable possibility that a state
court would rule" in their favor. Poulos, 959 F.2d at 69. Accordingly, defendants have
failed to show that Dr. Funk was fraudulently joined.

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Conclusion
For the foregoing reasons, the Court grants plaintiffs' motion to remand [Case
No. 14 C 1748, dkt. no. 419]. Case No. 14 C 7902 is hereby remanded to the Circuit
Court of Baldwin County, Alabama.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: March 2, 2015

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