Martin v. Moody's Pharmacy et al
Filing
14
ORDER GRANTING 5 MOTION to Dismiss and DENYING 6 MOTION to Remand to State Court. Defendants' motion to dismiss is GRANTED, plaintiff's claims in Counts I and II are DISMISSED WITH PREJUDICE, and the motion to remand to state court is DENIED. The Court directs the Clerk of the Court to terminate K&S Pharmacies of Southern Illinois Ltd., d/b/a Moody Health Mart Pharmacy (improperly named "Moody's Pharmacy"), Seamus N. Kloos, and Leslie Sauzek. Signed by Chief Judge David R. Herndon on 6/12/2012. (dsw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
IN RE YASMIN
AND YAZ
(DROSPIRENONE) MARKETING ,
SALES PRACTICES AND PRODUCTS
LIABILITY LITIGATION,
____________________________________
This Document Relates To:
_____________________________________
DANA A. MARTIN, Independent
Administrator of the Estate of
SOPHIA CLAIRE MARTIN, Deceased,
Plaintiff,
v.
MOODY’S PHARMACY, SEAMUS N.
KLOOS, LESLIE SAUZEK, BAYER
CORPORATION,
BAYER
HEALTHCARE PHARMACEUTICALS,
INC., BAYER HEALTHCARE, LLC,
BAYER SCHERING PHARMA AG,
and BAYER AG,
Defendants.
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09-MD-1200-DRH
MDL NO. 2100
11-CV-12606-DRH-PMF
MEMORANDUM & ORDER
HERNDON, Chief Judge:
This matter is before the Court on plaintiff’s motion to remand (Doc. 6) to
which the defendants have filed a response (Doc. 12). Also before the Court is a
related motion to dismiss filed by defendants K&S Pharmacies of Southern Illinois
Ltd., d/b/a Moody Health Mart Pharmacy (improperly named “Moody’s Pharmacy”)
(hereinafter “Moody’s”), Seamus N. Kloos, and Leslie Sauzek (hereinafter “the
Pharmacists”) (Doc. 5) to which plaintiff has filed a response (Doc. 11) and
defendants a reply (Doc. 13).
I.
BACKGROUND
This case is part of a Multi District Litigation action, In re Yasmin and YAZ
(Drospirenone) Marketing, Sales Practices and Products Liability Litigation, No. 09MD-2100-DRH. Plaintiff, a citizen of Randolph County, Illinois, originally filed this
wrongful death lawsuit in the Circuit Court for the Twentieth Judicial Circuit, St.
Clair County, Illinois, alleging that plaintiff’s decedent, Sophia Claire Martin, died as
a result of taking the prescription oral contraceptive YAZ. Her complaint seeks, inter
alia,1 recovery against defendants Moody’s and the Pharmacists (the non-diverse
defendants) for negligence under the Illinois Survival Act (Count I) and for wrongful
death (Count II). Plaintiff alleges that these defendants failed to properly warn the
decedent of the risks involved in taking YAZ in light of the fact that she suffered from
1
In addition, plaintiff has filed several claims against Bayer Corporation,
Bayer Healthcare Pharmaceuticals, Inc., Bayer Healthcare, LLC, Bayer Schering
Pharma AG, and Bayer AG (the ‘Bayer Defendants”) including: Negligence (Count
III), Wrongful Death (Count IV), Strict Liability-Design Defect: Survival Action
(Count V), Strict Liability-Design Defect: Wrongful Death (Count VI), Strict
Liability-Failure to Warn: Survival Action (Count VII), Strict Liability-Failure to
Warn: Wrongful Death (Count VII), Negligent Design: Survival Action (Count IX),
Negligent Design: Wrongful Death (Count X), and Violation of the Illinois
Consumer Fraud and Deceptive Businesses Practices Act (Count XI).
Only Counts I and II are at issue in these pending motions.
2
an arteriovenous malformation of the right lower extremity (AVM).
Defendants removed the action pursuant to 28 U.S.C. §§ 1441(b) and 1446,
asserting that this Court has jurisdiction based on diversity of citizenship under 28
U.S.C. § 1332, and further claiming that the non-diverse defendants, Moody’s and the
Pharmacists, were fraudulently joined to defeat federal jurisdiction. Defendants have
filed a motion to dismiss (Doc. 5) seeking dismissal of the non-diverse defendants on
the grounds that under Illinois law, pharmacy defendants do not have a duty to warn
of all potential risks involved with prescription drugs. Plaintiff has filed a response
(Doc. 12) asserting that Illinois law supports her claims against the non-diverse
defendants, and therefore, this matter should be remanded to state court for trial.
In Count I of the complaint, plaintiff specifically provides:
10.
11.
12.
At all times prior to the death of Sophia Claire
Martin, Moody’s Pharmacy, by and through its
employee/agents, including, but not limited to
Seamus N. Kloos and Leslie Sauzek, knew, or
should have known, that Sophia Claire Martin, had
been diagnosed with an arteriovenous malformation.
At all times relevant herein, the risk of hemorragh
from an arteriovenous malformation was well
known in the medical and related healthcare
profession. Therefore, prior to the death of Sophia
Claire Martin, Moody’s Pharmacy, by and through
its employee/agent, including Seamus N. Kloos
and/or Leslie Sauzek, knew[,] or should have known
that Sophia Claire Martin was at a higher risk of
hemorrhage because of her arteriovenous
malformation.
At all times relevant herein, Moody’s Pharmacy, by
and through its employee/agent, including Seamus
N. Kloos and/or Leslie Sauzek, knew, or should have
known, that the existence of an arteriovenous
malformations [sic] exposed the individual, such as
3
13.
14.
15.
16.
17.
Sophia Claire Martin, to a higher risk of bleeding,
including the formation of clots.
At all times relevant herein, Moody’s Pharmacy, by
and through its employee/agent, including Seamus
N. Kloos and/or Leslie Sauzek, knew, or should have
known, that there was an increased risk of
complications in the use of YAZ in individuals, such
as Sophia Claire Martin, who were at a higher risk
of bleeding, including the formation of clots because
YAZ contained a new type of progestin known as
drospirenone.
As a pharmacy dispensing prescription drugs, Mood
Moody’s Pharmacy, by and through its
employee/agent, including Seamus N. Kloos and/or
Leslie Sauzek, knew, or should have known, that the
progestin, drospirenone, had been associated with
deep vein thrombosis and thus posed a higher risk
for the development of clots in individuals like
Sophia Claire Martin.
On June 23, 2009, a few days prior to her death,
Sophia Claire Martin and her mother, Dana A.
Martin, purchased YAZ from Moody’s Pharmacy . .
..
Prior to and/or at the time of the purchase of YAZ
from Moody’s Pharmacy, Dana A. Martin had a
conversation with Seamus Kloos, and specifically
inquired about the use of the prescription drug YAZ
for her daughter, Sophia Claire Martin. At the time
of this conversation, Seamus N. Kloos was working
as a pharmacist for Moody’s Pharmacy and was
acting within the scope of his employment for
Moody’s Pharmacy.
Upon the inquiry made to Seamus Kloos by Dana A.
Martin, Mr. Kloos undertook a duty to advise Dana
A. Martin, as the agent for Sophia Claire Martin,
that the drug, YAZ, was an acceptable contraceptive
for Sophia Claire Martin and failed to advise Dana
A. Martin of the dangers associated with the use of
YAZ for those individuals with potential bleeding
disorders, such as Sophia Claire Martin. In fact,
Seam~us Mloos affirmatively advised Dana A.
Martin that YAZ would be an acceptable
contraceptive for use by Sophia Claire Martin.
4
18.
17.
18.
19.
Prior to and/or at the time of the purchase of YAZ
from Moody's Pharmacy, Dana A. Martin had a
conversation with Seamus Kloos, and specifically
inquired about the use of the prescription drug YAZ
for her daughter, Sophia Claire Martin. At the time
of this conversation, Seamus N. Mloos was working
as a pharmacist for Moody's Pharmacy and was
acting within the scope of his employment for
Moody's Pharmacy.
Upon the inquiry made to Seamus Kloos by Dana A.
Martin, Mr. Kloos undertook a duty to advise Dana
A. Martin, as the agent for Sophia Claire Martin,
that the drug, YAZ, was an acceptable contraceptive
for Sophia Claire Martin and failed to advise Dana
A. Martin of the dangers associated with the use of
YAZ for those individuals with potential bleeding
disorders, such as Sophia Claire Martin. In fact,
Seam~us Mloos affirmatively advised Dana A.
Martin that YAZ would be an acceptable
contraceptive for use by Sophia Claire Martin.
In addition to her conversation with Seamus Kloos,
prior to and/or at the time of the purchase of YAZ
from Moody's Pharmacy, Dana A. Martin had a
separate conversation with Leslie Sauzek. In this
conversation, Dana A. Martin specifically asked
Leslie Sauzek whether the prescription drug YAZ
posed any special contraindications for her
daughter, Sophia Claire Martin. At the time of this
conversation, Leslie Sauzek was working as a
pharmacist for Moody's Pharmacy and was acting
within the scope of her employment for Moody's
Pharmacy.
Upon the inquiry made to Leslie Sauzek by Dana A.
Martin, Ms. Sauzek undertook a duty to advise
Dana A. Martin, as the agent for Sophia Claire
Martin, that the drug,YAZ, was an acceptable
contraceptive for Sophia Claire Martin and failed to
advise Dana A. Martin of the dangers associated
with the use of YAZ for those individuals with
potential bleeding disorders, such as Sophia Claire
Martin. In fact, Leslie Sauzek affirmatively advised
Dana A. Martin that YAZ would be an acceptable
contraceptive for use by Sophia Claire Martin.
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20.
Neither Dana A. Martin nor Sophia Claire Martin
had any training in healthcare or the delivery of
pharmaceuticals at the time the YAZ was purchased
from Moody's Pharmacy.
Count II contains identical allegations in support of the plaintiff’s claim for
wrongful death.
The Court notes that the allegations of this most artfully crafted
complaint do not specify that Moody’s or The Pharmacist defendants had actual
knowledge of the decedent’s AVM condition. There is no allegation that anyone had
specifically advised the non-diverse defendants of the decedent’s condition, or that
the pharmacy had previously filled prescriptions related to the decedent’s AVM
condition, or that the pharmacy had asked about any complicating factors. All that
is alleged is that the non-diverse defendants should have known of the risks inherent
in YAZ for a person with AVM.
II.
ANALYSIS
A. LEGAL STANDARD
1. Removal
A civil action may be removed to federal court if the district court has original
jurisdiction. 28 U.S.C. § 1441. Courts have original jurisdiction of civil actions
between citizens of different states “where the matter in controversy exceeds the sum
or value of $75,000, exclusive of interest and costs.” 28 U.S.C. § 1332(a).
Jurisdiction depends on the amount in controversy when the federal suit began.
Meridian Sec. Ins. v. Sadowski, 441 F.3d 536, 538 (7th Cir. 2006); St. Paul Mercury
Indemnity Co. v. Red Cab Co., 303 U.S. 283, 293 (1938); see also Carroll v. Stryker
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Corp., 658 F.3d 675, 680 (7th Cir. 2011)(amount in controversy is evaluated as of
the time of removal). In addition, the amount in controversy stated in the plaintiff’s
complaint generally controls, unless it is legally impossible. Rising-Moore v. Red Roof
Inns, Inc., 435 F.3d 813, 815 (7th Cir. 2006); Meridian, 441 F.3d at 541.
However, if the complaint does not establish the amount in controversy, the
party invoking federal jurisdiction can use other evidence. See Meridian Sec. Ins. Co.
v. Sadowski, 441 F.3d 536, 541–42 (7th Cir. 2006); Chase v. Shop ‘N Save
Warehouse Foods, Inc., 110 F.3d 424, 427–28 (7th Cir. 1997). The party must set
out the basis of federal jurisdiction and prove any contested factual allegation.
Meridian, 441 F.3d at 540 (citing Fed. R. Civ. P. 8(a)(1) & 12(b)(1)); Carroll v.
Stryker Corp., 658 F.3d 675, 680 (7th Cir. 2011). It must prove the jurisdictional
facts by a preponderance of the evidence. Blomberg v. Serv. Corp. Intern., 639 F.3d
761, 763 (7th Cir. 2011); Meridian, 441 F.3d at 543. Moreover, burden of the
defendant who removes, is to show “what the plaintiff hopes to get out of the
litigation,” not that the plaintiff will collect more than $75,000 if he prevails.
Rising-Moore, 435 F.3d at 816; Brill v. Countrywide Home Loans, Inc., 427 F.3d
446, 449 (7th Cir. 2005) (“[P]art of the removing party’s burden is to show not only
what the stakes of the litigation could be, but also what they are given the plaintiff’s
actual demands.”). When the plaintiff provides little information about the value of
his claims, “a good-faith estimate of the stakes is acceptable if it is plausible and
supported by a preponderance of the evidence.” Oshana v. Coca-Cola Co., 472 F.3d
506, 511 (7th Cir. 2006) (citing Rubel v. Pfizer, Inc., 361 F.3d 1016, 1020 (7th Cir.
7
2004))
The removal statute, 28 U.S.C. § 1441, is construed narrowly, and doubts
concerning removal are resolved in favor of remand. Doe v. Allied-Signal, Inc., 985
F.2d 908, 911 (7th Cir.1993). Defendants bear the burden to present evidence of
federal jurisdiction once the existence of that jurisdiction is fairly cast into doubt. See
In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 607 (7th Cir.
1997). “A defendant meets this burden by supporting [its] allegations of jurisdiction
with ‘competent proof,’ which in [the Seventh Circuit] requires the defendant to offer
evidence which proves ‘to a reasonable probability that jurisdiction exists.’” Chase
v. Shop ‘N Save Warehouse Foods, Inc., 110 F.3d 424, 427 (7th Cir. 1997) (citations
omitted). However, if the district court lacks subject matter jurisdiction, the action
must be remanded to state court pursuant to 28 U.S.C. § 1447(c). The statute
regarding diversity jurisdiction, 28 U.S.C. § 1332, requires complete diversity
between the parties plus an amount in controversy which exceeds $75,000, exclusive
of interest and costs. Complete diversity means that “none of the parties on either
side of the litigation may be a citizen of the state of which a party on the other side
is a citizen.” Howell v. Tribune Entertainment Co., 106 F.3d 215, 217 (7th Cir.
1997) (citations omitted).
2. Fraudulent Joinder
The Seventh Circuit has recently discussed the nature of fraudulent joinder in
another action which is also a part of this Multi-District Litigation proceeding, Walton
v. Bayer Corp., 643 F.3d 994 (7th Cir. 2011). In Walton the plaintiff, a citizen of
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Illinois, filed a state court action against Bayer and Niemann Foods, Inc, a nondiverse defendant which operated the pharmacy where plaintiff filled her prescription
for her oral contraceptive, Yasmin. The Seventh Circuit noted that when a nondiverse defendant is “joined simply to defeat removal, as might be inferred from a
demonstration that the claim against that defendant had no possible merit”
fraudulent joinder exists and “bars remand to state court.” 643 F.3d at 999.
Walton recognized that this is an “exception to the requirement of complete
diversity.” Id.
The doctrine of fraudulent joinder is triggered when a defendant demonstrates
that “after resolving all issues of fact and law in favor of the plaintiff, the plaintiff
cannot establish a cause of action against the in-state defendant.” Poulos v. Naas
Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992); accord, Schur v. L.A. Weight Loss
Ctrs., Inc., 577 F.3d 752, 764 (7th Cir. 2009). If there is “any reasonable possibility”
that the plaintiff may prevail against a defendant, the defendant is not fraudulently
joined. Schur, 577 F.3d at 764 (citing Poulos, 959 F.2d at 73). The defendant's
burden is heavy, possibly even heavier than his burden with a motion to dismiss for
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Schur, 577
F.3d at 764.
In determining whether a non-diverse defendant has been fraudulently joined,
the Court has a limited power to resolve issues of fact. This may occur, “ ‘[i]n a few
cases, in which a plaintiff has stated a claim but has misstated or omitted discrete
facts, the district court may. . .pierce the pleadings and conduct a summary inquiry’
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as to the issue of fraudulent joinder.” Hill v. Olin Corp., No. 07-CV-0054-DRH, 2007
WL 1431865, at *4 (S.D.Ill. May 14, 2007) (quoting Larroquette v. Cardinal Health
200, Inc., 466 F.3d 373, 376 (5th Cir.2006)). In this inquiry, “piercing the pleadings
is ‘a strictly circumscribed inquiry limited to uncontroverted summary evidence
which establishes unmistakably that a diversity-defeating defendant cannot possibly
be liable to a plaintiff under applicable state law.’ ” Id. at *6 (quoting Rutherford v.
Merck & Co., 428 F.Supp.2d 842, 848 (S.D.Ill.2006)). See also, Faucett v.
Ingersoll-Rand Mining & Mach. Co., 960 F.2d 653, 654-55 (7th Cir.1992) (in a
products liability action, fraudulent joinder was established by a diversity-defeating
defendant's uncontradicted affidavit stating that he had nothing to do with the
machine that caused the plaintiff's injury). A district court is required to resolve both
issues of fact and law in favor of the plaintiff, and should not pre-determine the facts
of the claim. Hill v. Olin Corp., 2007 WL 14318565 (S.D. Ill. 2007). The Court’s role
in evaluating allegations of fraudulent joinder is “to determine whether Plaintiff’s
complaint provides a reasonable basis for predicting that the plaintiff might be able
to recover against an instate defendant .... not to ascertain the merits of [the] claim.”
Id. at *4.
The Seventh Circuit noted in Walton that “proof of fraud, though sufficient, is
not necessary for retention of federal jurisdiction–all that’s required is proof that the
claim against the non-diverse defendant is utterly groundless, and as a groundless
claim does not invoke federal jurisdiction,” 643 F.3d at 999 (emphasis added).
Walton further directed district courts that, “the district judge must dismiss [the
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non-diverse defendant] before ruling on the plaintiff’s motion to remand.” Id. Given
that directive, the Court will first consider the motion to dismiss filed by the nondiverse defendants.
III.
DEFENDANTS’ MOTION TO DISMISS (Doc. 5)
Defendants Moody’s and the Pharmacists seek dismissal on the grounds that
they were fraudulently joined and plaintiff cannot bring a claim against them under
Illinois Law. In Illinois, a pharmacy (and therefore pharmacists, including two
defendants in this case) can be held to a duty to warn “where there is unequal
knowledge, actual or constructive [of a dangerous condition], and the defendant[,]
possessed of such knowledge, knows or should have known that harm might or
could occur if no warning is given.” Kirby v. General Paving Co., 229 N.E.2d 453,
457 (Ill. App. Ct. 2002) (quoted in Happel v. Wal-Mart Stores, Inc., 766 N.E.2d
118,1123 (Ill. 2002)). The issue of duty is one of law, which is the determination of
the Court. Id. (quoting Ward v. Kmart Corp., 554 N.E.2d 223, 226 (1990).
In resolving the issue of the existence of a duty, Illinois law looks to certain
“relevant factors. These include: (1) the reasonable forseeability that the defendant’s
conduct may injury another, (2) the likelihood of an injury occurring, (3) the
magnitude of the burden of guarding against such an injury, and (4) the
consequences of placing that burden on the defenant.” 766 N.E.2d at 1123-24.
In Walton, the Seventh Circuit explained that in “Illinois a manufacturer or
pharmacy must warn a customer of dangers known to it of which physicians have not
been warned, but not of dangers of which physicians have been warned.” 643 F.3d
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at 1000. So, as in Walton, “if [the non-diverse defendants knew] that the [decedent]
was abnormally susceptible to a particular side effect of [YAZ], [they] had a duty to
warn her or her physician.” Id. At 1000-01. If, however, the plaintiff fails to allege
that the pharmacy defendants knew anything about her susceptibility, then they “have
the full protection of the learned-intermediary doctrine.” Id.
1.
LEARNED INTERMEDIARY DOCTRINE
Under the learned intermediary doctrine, the manufacture of a prescription
drug is “excused” from “having to warn consumers of the drug’s adverse side effects;
it need warn only physicians, so that armed with the warning they can make a
medical decision to prescribe or not to prescribe the drug for a particular patient.”
643 F.3d at 999-1000. The Illinois Supreme Court in Happle v. Wal-Mart Stores,
Inc., 766 N.E.2d 1118, 1126 explained:
The underlying rationale of the learned intermediary doctrine is
that, with regard to prescription drugs, which are likely to be
complex medicines, it is the prescribing physician who knows
both the propensities of the drug and the susceptibilities of his
patient, and who therefore is in the best position to prescribe a
particular drug for the patient.
Further, as Happle discussed, when the pharmacy has actual knowledge of both a
patient’s medical condition (in Happle, allergy to certain drugs) and that the
prescribed drug was contraindicated for persons with such susceptibility, there is a
duty to warn. Id. at 1128. The Happle court was careful to note. however, that this
duty applies “in situations . . . where a pharmacy has knowledge that a prescribed
medication is contraindicated for a specific customer.” Id. (emphasis added).
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The physician who issues the prescription
acts as the “‘learned
intermediary’–the medical professional who, equipped with the knowledge imparted
to him by the drug’s manufacturer, determines, weighing benefit against risk, the
drugs’ suitability for a particular patient.” Walton, 664 F.3d at 1000. The Walton
court noted the logic behind limiting liability to pharmacies generally, finding that
unless there is special knowledge of susceptibility of the consumer to a dispensed
drug, there is no duty to warn. Specifically the court stated:
Pharmacies (and normally other sellers in the chain of
distribution that runs from the manufacturer to the ultimate
consumer) can’t be expected to warn their customers of the
possible defects and dangers of the prescription drugs they
sell. It would be senseless, especially given drug regulations by
the Food and Drug Administration and the extensive tort
liability of drug manufacturers, to make pharmacies liable in
tort for the consequences of failing to investigate the safety of
thousands of drugs.
643 F.3d at 1000. The court noted, however, that when a pharmacy has specific
knowledge, it may be held responsible for failing to warn of adverse drug interaction
and results.
What a pharmacy sometimes knows, however, without
investigation, and the manufacturer will not know and even a
treating physician may not know, is susceptibilities of
particular customers of the pharmacy to the side effects of a
drug that it sells them–susceptibilities because of other drugs
that the pharmacy knows the customer is taking, or a preexisting physical or mental condition (again known to it) that
makes the drug contraindicated for the customer–and then it
must warn either the customer or his physician. But not
otherwise.
Id. (emphasis added). As the Walton court noted, Illinois courts have reached this
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result, calling it “an application of the learned-intermediary doctrine.” Id. (collecting
cases). Therefore, “a manufacturer or a pharmacy must warn a customer of dangers
known to it of which physicians have not been warned, but not of dangers of which
physicians have been warned.” Id. Walton, therefore, limited pharmacy liability to
knowledge of susceptibility. Id.
Plaintiff’s complaint was filed on July 8, 2011, which means that it was filed
more than 30 days after the Walton opinion was published on May 23, 2011.
Although plaintiff alleges a special duty between the decedent and the non-diverse
defendant, the complaint is silent as to any specific knowledge the non-diverse
defendants had of the plaintiff’s decedent’s medical condition.
This case was
removed from Illinois state court and, “Illinois is a fact-pleading jurisdiction that
requires a plaintiff to present a legally and factually sufficient complaint and a
plaintiff must allege sufficient facts to state all the elements of the asserted cause of
action.” Hanks v. Colter, 959 N.E.2d 728, 734 (Ill. App. Ct. 2011) (citation omitted).
The complaint, which is most carefully pleaded to avoid removal, alleges the
following by the non-diverse defendants:
22.
Defendants, Moody's Pharmacy, by and through its agents and
employees, including, but not limited to Seamus N. Kloos and
Leslie Sauzek, breached their duty of ordinary care to Sophia
Claire Martin in light of their special knowledge regarding the
increased risks of embolism and bleeding to Sophia Claire
Martin in that they:
a.
Carelessly and negligently failed to advise Sophia Claire
Martin and/or Dana A. Martin, as agent for Sophia
Claire Martin, of the risks of bleeding associated with
the use of the prescription drug, YAZ; and/or,
b.
Carelessly and negligently failed to advise Sophia Claire
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c.
d.
Martin and/or Dana A. Martin, as agent for Sophia
Claire Martin, that the risks of complications with the
use of YAZ were higher than those of other available
contraceptives in light of the use of the combination of
ethinyl estradiol and drospirenone; and/or,
Carelessly and negligently failed to advise Sophia Claire
Martin and/or Dana A. Martin, as agent for Sophia
Claire Martin, that the risks of adverse events with YAZ
were not adequately tested and/or known;and/or,
Carelessly and negligently failed to advise Sophia Claire
Martin and/or Dana A. Martin, as agent for Sophia
Claire Martin, that the risks of complications with the
use of YAZ for an individual like Sophia ClaireMartin
were greater with regard to serious and dangerous side
effects including, but not limited to, pulmonary
embolism, as well as other severe and personal
injuries, physical pain and death.
But, once again, plaintiff simply does not allege anything which would establish
specific knowledge by the non-diverse defendants of the decedent’s medical
condition, which then, in turn, would trigger the duty to warn decedent.
A.
Petrillo Doctrine Violation Claims
In support of both the removal petition based on fraudulent joinder, and, then
in reference to the motion to dismiss, the defendants rely on the affidavits of Kloos
and Sauzek(See, Exhibits F & G to Doc. 2). Before reaching the averments of the
various affidavits, the Court notes that the plaintiff has raises the Petrillo doctrine,
seeking to preclude the use of the pharmacists’ affidavits for determination of the
issue of fraudulent joinder. Petrillo v. Syntex Labs, Inc., 499 N.E.2d 952, 957 (Ill.
App. Ct. 1986). Petrillo applies when an ex parte communication has taken place
between defense counsel and a treating physician, and “sanctions may be imposed
upon the defendant, including reversal of the judgment in favor of the defendant and
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the award of a new trial.” Nastasi v. Unite Mine Workers of Am. Union Hosp., 567
N.E.2d 1358, 1365 (Ill. App. Ct. 1991); Morisch v. United States, 653 F.3d 522, 52728 (7th Cir. 2011). In this case, the affidavits which plaintiff finds objectionable are
those of named party defendants.
And, the affidavits were included with the
removing defendants’ removal petition in support of their assertion of jurisdiction
based upon fraudulent joinder. Plaintiff asserts, nonetheless, that because the nondiverse defendants had not entered their appearance in Illinois courts, the Bayer
defendant could not have obtained discovery from those defendants, including the
ability to take their affidavits, and therefore, that those affidavits should be stricken.
Bayer defendants provide, in their response to the motion to remand, that the
affidavits were obtained through the pharmacy defendants’ counsel, and that the
Petrillo doctrine does not apply to the pharmacy defendants in this particular case
because they are parties to the action, and because they did not provide any more
information than the complaint itself reveals.
The Court notes that despite plaintiff’s assertion to the contrary, the nondiverse defendants were not required to file an entry of appearance in Illinois courts
before consenting to removal in this Court (which they did, see Ex. B, Doc. 2). Nor
is there a pharmacist-patient privilege extension of the Petrillo doctrine applicable
in this case. To apply plaintiff’s logic would be to effectively prohibit defendants
joined by a plaintiff to a cause of action from communicating about their defense, a
scenario not warranted by Petrillo. Accordingly, to the extent that it is a motion, the
Court DENIES plaintiff’s motion to strike the affidavits of Kloos and Sauzek.
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B.
Affidavits of Kloos, Sazeuk and Plaintiff
In his affidavit, Kloos states that at the time of the dispensing of YAZ to the
decedent, he was unaware and had not been advised by anyone that the decedent had
ever been diagnosed with any type of bleeding condition, including AVM; that he
never had a conversation with plaintiff or any other person, with respect to the
prescription for YAZ; and that he did not advise plaintiff that YAZ was an acceptable
contraceptive for the decedent. He further states that as a pharmacist, he is unaware
of the implications of an AVM diagnosis or any impact of oral contraceptives for
someone with this condition, and that as a pharmacist he does not make
recommendations with respect to what type of contraceptives should be used.
(Exhibit F, Doc. 2.)
Defendant Sauzek’s affidavit (Exhibit G, Doc. 2), practically identically,
provides that at the time of the dispensing of YAZ to the decedent Sauzek was
unaware nor had she been advised by anyone that the decedent had been diagnosed
with any type of bleeding condition, including AVM;
that she never had a
conversation with plaintiff or any other person, with respect to the prescription for
YAZ, and did not advise plaintiff that YAZ was an acceptable contraceptive for the
decedent. Sauzek further avers that she is unaware, as a pharmacist, of the
implications for contraceptives with respect to a diagnosis of AVM nor is she aware
of the medical implications of such a diagnosis. She further states that as a
pharmacist she does not make recommendations with respect to what type of
contraceptives should be used.
17
Plaintiff’s complaint alleges the non-diverse defendants“knew or should have
known” that the decedent suffered from AVM and, therefore, should have warned the
decedent that use of the oral contraceptive YAZ placed her at greater risk.
Expanding on this bare claim found in the complaint, plaintiff asserts in her
response to the motion to dismiss (which incorporates argument she raised in the
motion to remand), via her own affidavit, that plaintiff had two conversations with
defendant Sauzek regarding the use of YAZ and whether there were alternative drugs
available. Plaintiff’s affidavit provides that she spoke with defendant Sauzek about
YAZ “on the parking lot of the Sparta Country Club.” (Exhibit C, Doc. 7.) Plaintiff
avers that at that time she asked Sauzek, in her capacity as a pharmacist, for “further
information about YAZ.” Id. The plaintiff further provides that during the second
conversation, Sauzek “volunteered that she and Seamus Kloos had found a couple
of contraceptives that were different from YAZ,” and that “Leslie Sauzek did not
counsel me against YAZ and I understood from her that YAZ was an appropriate
drug for my daughter, Sophia Martin.” Id. Plaintiff further avers that prior to filling
the YAZ prescription for the decedent, she called Moody’s Pharmacy and spoke with
defendant Kloos and “specifically asked Seamus Kloos for his opinion regarding the
drug, YAZ, and its use. I also asked Mr. Kloos if I should have my daughter’s doctor
prescribe a different drug. Mr. Kloos counseled me that YAZ would be good for
Sophia. Mr. Kloos did not ask for any further information regarding Sophia’s medical
history and did not defer to Sophia’s physician.” Id.
It is, however, the requisite specific, individualized knowledge that is missing
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in this case, and therefore, warrants dismissal of the non-diverse defendants, and a
finding of fraudulent joinder. Plaintiff has alleged that these defendants knew or
should have known of her decedent’s particular risks, and has even averred that she
had specific conversations with the pharmacist defendants about decedent’s use of
YAZ. But, plaintiff’s own recall of those conversations (which defendants deny
occurred) only provides that during her conversations she expressed her desire for
further “knowledge” about this drug, including whether it would be “good” for the
decedent. She does not, notably, aver or allege in the complaint that she advised the
Pharmacist defendants that the decedent had any special medical conditions, or that
the Pharmacists would have had any other basis for knowledge of decedent’s
condition before filling the prescription.
Therefore, what is missing from this discourse is anything in the record which
would support a finding by this Court that the non-diverse defendants had any
reason to know that the decedent suffered from AVM, or was at a higher risk for
bleeding and clotting disorders. Even construing all of the allegations and affidavits
in the light most favorable to the plaintiff, the Court simply cannot find that there is
a sufficient basis to determine, that Moody’s or the Pharmacists had been told by
anyone, the decedent, her doctor, or the plaintiff, for example, of decedent’s preexisting medical condition. Nor is there anything in the record, specifically, in
plaintiff’s own affidavit, which would show that the pharmacy had, for example,
asked of other medical concerns, or filled other prescriptions for the decedent
related to her particular medical condition that would have alerted the non-diverse
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defendants to the fact that YAZ might be contraindicated for the decedent. Accord,
Happle, 766 N.E.2d 1123-1129 (where the court found that “such ‘special
circumstances’ were present. . . [and] Wal-Mart had ‘special knowledge’ of [the
plaintiff’s] medical condition, i.e. her drug allergies.” Id. at 1129). As the Walton
court noted, absent this nexus of specific knowledge, pharmacies are not “otherwise”
subject to suit for failure to warn of possible risks. 643 F.3d at 1000.
Accordingly, the Court GRANTS the motion to dismiss filed by defendants
K&S Pharmacies of Southern Illinois Ltd., d/b/a Moody Health Mart Pharmacy
(improperly named “Moody’s Pharmacy”), Seamus N. Kloos, and Leslie Sauzek, and
plaintiff’s claims in Counts I and II are DISMISSED with prejudice.
IV.
MOTION TO REMAND (Doc. 6)
In light of the Court’s finding that the plaintiff cannot sustain a claim against
the non-diverse defendants K&S Pharmacies of Southern Illinois Ltd., d/b/a Moody
Health Mart Pharmacy (improperly named “Moody’s Pharmacy”), Seamus N. Kloos,
and Leslie Sauzek, there is now complete diversity. The second requirement for
jurisdiction, under the provisions of 28 U.S.C. § 1332, is that the amount in
controversy must exceed $75,000. Plaintiff has not asserted that the amount in
controversy is less than this amount, and the plaintiff seeks in excess of $50,000 in
her complaint. The damages sought include wrongful death and negligence, which
are most likely to exceed the threshold requirement of in excess of $75,000. The
Seventh Circuit has found the jurisdictional amount satisfied when medical expenses
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and other losses amounted to $45,000, with a “modest allowance for pain, suffering,
and future losses (either income foregone or medical expenses incurred).”
Rising-Moore, 435 F.3d at 815; see also Andrews v. E.I. Du Pont De Nemours & Co.,
447 F.3d 510, 514–15 (7th Cir. 2006) (amount in controversy satisfied where
complaint sought damages “in excess of $50,000” and alleges “severe and
permanent” injuries to the head, ribs, and back; pain and suffering; past and future
lost wages; past and future medical expenses; and disabilities). Here, the damages
are related to product defect and product liability which lead to the decedent’s
alleged wrongful death. The Court is well satisfied that the alleged damages in this
case are more than sufficient to meet the requisite amount for diversity jurisdiction.
Therefore, the Court FINDS that it has diversity jurisdiction over this matter
pursuant to 28 U.S.C. § 1332 and the plaintiff’s motion to remand is DENIED.
Digitally signed by
David R. Herndon
Date: 2012.06.12
12:02:47 -05'00'
DATE: June 12, 2012
Chief United States District Judge
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