Bagley v. Bayer Corporation et al
Filing
32
ORDER denying 14 Motion to Remand to State Court. Signed by Chief Judge David R. Herndon on 5/10/2012. (dsw)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
------------------------------------------------------------
X
IN RE YASMIN AND YAZ (DROSPIRENONE)
MARKETING, SALES PRACTICES AND
PRODUCTS LIABILITY LITIGATION
3:09-md-02100-DRH-PMF
MDL No. 2100
-----------------------------------------------------------Judge David R. Herndon
This Document Relates to:
Jessica Bagley v. Bayer Corp., et al. No. 3:11cv-20153-DRH-PMF
ORDER DENYING REMAND
I. INTRODUCTION
This action was commenced on August 5, 2011 in the Circuit Court of
Etowah County, Alabama for personal injuries allegedly suffered by the plaintiff as
a result of ingesting Yasmin and Ocella (a generic version of Yasmin).
Plaintiff, a
citizen of Alabama, brings claims against several non-Alabama entities involved in
the manufacture, promotion, and/or sale of Yasmin and Ocella (“pharmaceutical
defendants”).
Plaintiff’s original complaint also asserts a single claim against
Gregerson’s Food’s Inc. (“Gregerson’s), the Alabama pharmacy that allegedly
caused “the Yasmin which in whole or part caused injury to the Plaintiff to enter
into the stream of commerce” (Doc. 1-1 p. 4). The action was removed on the
ground that Gregerson’s, the sole non-diverse defendant, was fraudulently joined
(Doc. 1). Presently before the Court is plaintiff’s motion to remand to state court
1
(Doc. 14). For the reasons discussed below the Court DENIES plaintiff’s motion
to remand.
II. BACKGROUND
A. STATE COURT ACTION, REMOVAL, AND MOTIONS TO REMAND
Shortly after plaintiff filed her complaint in state court, Gregerson’s filed a
motion to dismiss pursuant to Rule 12(b) of the Alabama Rules of Civil Procedure
(Doc. 14 p. 17). 1 Gregerson’s motion consisted of five sentences, contained no
argument or explanation as to why dismissal was warranted, and did not cite to
any case law (Doc. 14 p. 14).
The motion requested an order dismissing
plaintiff’s claim against Gregerson’s on the following grounds: (1) the original
complaint failed to state a claim against Gregerson’s for which relief could be
granted; (2) the original complaint did not state a viable claim against
Gregerson’s; and (3) plaintiff’s claims were barred by the relevant statute of
limitations (Doc. 14 p. 14).
Gregerson’s also requested a hearing on its motion
to dismiss (Doc. 14 p. 14).
On September 8, 2011 (without any hearing on the matter) Judge William
H. Rhea issued an order summarily denying Gregerson’s motion to dismiss and
1
2
Rule 12(b) of the Alabama Rules of Civil Procedure provides in relevant part:
Every defense . . . shall be asserted in the responsive pleading thereto if one
is required, except that the following defenses may at the option of the
pleader be made by motion: (1) lack of jurisdiction over the subject matter,
(2) lack of jurisdiction over the person, (3) improper venue, (4)
insufficiency of process, (5) insufficiency of service of process, (6) failure to
state a claim upon which relief can be granted, (7) failure to join a party
under Rule 19.
ordering Gregerson’s to file an answer (Doc. 14 p. 18).2 On that same day, the
state court action was removed to the United States District Court of Alabama,
Northern Division (Doc. 1). 3 The removing defendants contend that Gregerson’s
has been fraudulently joined and that diversity jurisdiction exists (Doc. 1).
Approximately one week after removal, plaintiff filed a motion for remand to state
court arguing that the amount in controversy was not satisfied and summarily
arguing that Gregerson’s was not fraudulently joined (Doc. 11).
While plaintiff’s first motion to remand was pending, the case was
transferred to this Court (Doc. 13).
Nine days later, plaintiff filed a revised
motion for remand (Doc. 14). Plaintiff’s second motion for remand argues that
the state trial court’s order denying Gregerson’s motion to dismiss establishes
that plaintiff has asserted a viable claim against Gregerson’s. In addition, plaintiff
contends that her action against Gregerson’s is viable because it is filed pursuant
to the Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”). Finally,
plaintiff contends that the amount in controversy requirement is not met.
In
response, the pharmaceutical defendants contend that any cause of action against
2
The order stated as follows: “Gregerson’s Foods, Inc.’s Motion to Dismiss is
hereby DENIED and said Defendant is given thirty (30) days to answer” (Doc. 14
p. 18).
3
Plaintiff’s motion to remand implies that the removal was somehow improper
because the removing defendants did not seek the consent of Gregerson’s – the
defendant that has allegedly been fraudulently joined (Doc. 14 p. 2). As a rule, of
course, all defendants in a removed case that were properly joined and served at
the time of the removal are required to consent to the removal; thus, the consent
of a fraudulently joined defendant to removal is not required. See Northern Ill.
Gas Co. v. Airco Indus. Gases, Div. of Airco, Inc., 676 F.2d 270, 272 (7th Cir.
1982); P.P. Farmers Elevator Co. v. Farmers Elevator Mut. Ins. Co., 395 F.2d
546, 547-48 (7th Cir. 1968).
3
Gregerson’s is barred by the learned intermediary rule (Doc. 15).
They also
contend the state court’s denial of Gregerson’s motion to dismiss is irrelevant and
that the amount in controversy requirement has been met (Doc. 15).
B. ORIGINAL COMPLAINT, AMENDED COMPLAINT, AND MOTION TO DISMISS
The plaintiff’s original complaint (Doc. 1-1) asserts nine separate causes of
action: (1) “Negligence and Negligence Per Se”; (2) “Products Liability –
Unreasonably Dangerous Design”; (3) “Products Liability – Failure to Warn”; (4)
Breach of Express Warranty”; (5) Breach of Implied Warranties”; (6) “Fraudulent
Misrepresentation”;
(7)“Fraudulent
Concealment”;
Misrepresentation”; and (9) “Fraud and Deceit.”
(8)
“Negligent
The original complaint states
that plaintiff’s claims are brought pursuant to the AEMLD (Doc. 1-1 p. 1). All
nine causes of action are directed against “Defendants.” The term “Defendants” is
defined in the original complaint as “all named Defendants, with the exception of
Defendant Gregerson’s Foods’ Inc” (Doc. 1-1 p. 5).
In other words, the term
“Defendants” includes the pharmaceutical defendants and expressly excludes
Gregerson’s.
The claim delineated as “Breach of Express Warranty” is the only claim
directed against Gregerson’s (Doc. 1-1 pp. 12-13).
The breach of express
warranty claim asserts that the pharmaceutical defendants made express
representations regarding the safety and efficacy of Yasmin and Ocella and that
Yasmin and Ocella did not and do not conform to the alleged express
4
representations (Doc. 1-1 p. 13). Plaintiff does not allege that Gregerson’s made
any express representations with regard to Yasmin and/or Ocella.
As to
Gregerson’s, the express warranty claim alleges the following:
Defendant Gregerson’s conduct in this matter is actionable because
as a distributor of the Yasmin, it failed to properly warn the Plaintiff
of the dangerous and injurious side effects of the Yasmin product.
(Doc. 1-1 p. 13). The only other assertions with regard to Gregerson’s are found
in paragraph eleven in the subsection that identifies and defines the parties.
Paragraph eleven identifies Gregerson’s as an Alabama corporation and a
distributor of Yasmin (Doc. 1-1 p. 5).
Paragraph eleven further states that
Gregerson’s is a distributor of Yasmin as that term is defined in the AEMLD and
that Gregerson’s “through its actions caused the Yasmin which in whole or part
caused injury to the Plaintiff to enter into the stream of commerce” (Doc. 1-1 p.
5).
On December 30, 2011, Gregerson’s filed a motion to dismiss plaintiff’s
original complaint for failure to state a claim (Doc. 21). Thereafter, plaintiff filed
her first amended complaint and a response to Gregerson’s motion to dismiss the
original complaint (Doc. 23).
Plaintiff’s first amended complaint redefines the
term “Defendants” to include Gregerson’s (Doc. 23 p. 5). Plaintiff re-asserts the
same nine causes of action. For the most part, the claims are directed generically
against “Defendants” (now defined to include Gregerson’s). However, as with the
original complaint, one paragraph in the breach of express warranty claim is
directed specifically against Gregerson’s.
5
This paragraph again alleges that
Gregerson’s conduct is actionable because it failed to warn the plaintiff of the
subject drugs’ dangerous side effects (Doc. 23 p. 13).
In addition, three
paragraphs in plaintiff’s breach of implied warranties claim are directed against
both “Defendants and Gregerson’s” (Doc. 23 pp. 13-14).
In response to plaintiff’s first amended complaint, Gregerson’s filed a
revised motion to dismiss (Doc. 26). Plaintiff responded to Gregerson’s revised
motion to dismiss on March 12, 2012 (Doc. 28) and Gregerson’s filed a reply brief
on March 28, 2012 (Doc. 29-1).
III. PRELIMINARY MATTERS
A. POST REMOVAL AMENDMENT - EFFECT ON JURISDICTION
The Seventh Circuit has repeatedly indicated removal jurisdiction is
determined at the time of removal and is not affected by post-removal events,
including amendments to the pleadings. See In re Burlington Northern Santa Fe
Ry. Co., 606 F.3d 379, 380 (7th Cir. 2010) (“The well established general rule is
that jurisdiction is determined at the time of removal and nothing filed after
removal affects jurisdiction”); Id. at 380-381 (finding that jurisdiction under CAFA
was secure “even though, after removal, the plaintiffs amended their complaint to
eliminate the class allegations”); Rising–Moore v. Red Roof Inns, Inc., 435 F.3d
813, 816 (7th Cir. 2006) (stating that “post-removal events-even an irrevocable
promise not to accept more than the jurisdictional minimum-do not authorize
remand of a suit that was within federal jurisdiction when removed”); Tropp v.
6
Western-Southern Life Ins. Co., 381 F.3d 591, 595 (7th Cir. 2004) (stating that
“[t]here [was] ... a reasonable probability that the amount in controversy at the
time of removal exceeded $75,000” and the plaintiff's “original complaint, filed at
the time of removal (not the subsequent amended complaint), is considered for
jurisdictional purposes”); Matter of Shell Oil Co., 970 F.2d 355, 356 (7th Cir.
1992) (indicating that “a post-removal amendment to the complaint limiting the
plaintiff's claim does not authorize a remand” and stating “[b]ecause jurisdiction
is determined as of the instant of removal, a post-removal affidavit or stipulation
is no more effective than a post-removal amendment of the complaint”).
In
addition, the Seventh Circuit has noted that “removal cases [unlike cases initiated
in federal court] present concerns about forum manipulation that counsel against
allowing a plaintiff’s post-removal amendments to affect jurisdiction.”
In re
Burlington Northern Santa Fe Ry. Co., 606 F.3d 379, 381 (7th Cir. 2010).
In light of this precedent, the Court does not consider plaintiff’s post
removal amendments in assessing whether Gregerson’s has been fraudulently
joined and in deciding plaintiff’s motion to remand. Rather, the only relevant
allegations are those contained in plaintiff’s complaint at the time of removal.
7
B. EFFECT OF STATE COURT ORDER DENYING MOTION TO DISMISS
Plaintiff argues the state court’s denial of Gregerson’s motion to dismiss
demonstrates that plaintiff has asserted viable claims against Gregerson’s. 4
Plaintiff’s argument might hold more water if the state court’s decision included
conclusions of law with respect to Gregerson’s liability. In addition, as noted
above, Gregerson’s motion did not contain any argument as to why the plaintiff’s
complaint fails to state a claim against Gregerson’s. Considering the above, the
Court cannot conclude that the state court’s cursory denial says anything about
Gregerson’s liability under Alabama law. 5
IV. LEGAL AUTHORITY
A.
FRAUDULENT JOINDER PRINCIPLES
“A plaintiff typically may choose its own forum, but it may not join a
nondiverse defendant simply to destroy diversity jurisdiction.”
Schur v. L.A.
Weight Loss Centers, Inc. 577 F.3d 752, 763 (7th Cir. 2009). See also Gottlieb
4
Plaintiff states that the trial court’s denial of Gregerson’s motion to dismiss
amounts to a finding that plaintiff “could succeed in her claims against
Gregerson’s” and that this is “fatal” to the removing defendants’ chance of success
at removal (doc. 14 p. 4).
5
Although the Seventh Circuit has not expressly addressed the issue, some
district courts have held that a defendant waives the right to removal when the
defendant takes action in state court that evinces an intent by the defendant to
have the state court decide the case on the merits, such as by filing a motion to
dismiss or asserting a counterclaim.
See e.g., Ellis v. Coventry Capital I
LLC 2008 WL 4396349, *4 (N.D.Ill. Sept. 24, 2008) (Darrah, J.). The Court
need not address the issue of waiver in the instant case because the removing
defendants did not take any action in state court evincing such an intention. The
motion to dismiss was filed by Gregerson’s, the forum defendant, and not by the
removing defendants.
8
v. Westin Hotel Co., 990 F.2d 323, 327 (7th Cir. 1993) (collecting cases).
“The
‘fraudulent joinder’ doctrine, therefore, permits a district court considering
removal “to disregard, for jurisdictional purposes, the citizenship of certain
nondiverse defendants, assume jurisdiction over a case, dismiss the nondiverse
defendants, and thereby retain jurisdiction.” Schur, 577 F.3d at 763.
In the context of jurisdiction, “fraudulent” is a term of art. See Poulosv.
Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir.1992). “Although false allegations of
jurisdictional fact may make joinder fraudulent . . . in most cases fraudulent
joinder involves a claim against an in-state defendant that simply has no chance of
success whatever the plaintiff's motives.” Id. (collecting cases).
To prove
fraudulent joinder, the out-of-state defendant must “show there exists no
‘reasonable possibility that a state court would rule against the [in-state]
defendant.’” Schwartz v. State Farm Mutual Auto. Ins. Co., 174 F.3d 875, 878
(7th Cir. 1999) (citing Poulos, 959 F.2d at 73)). See also Walton v. Bayer Corp.,
643 F.3d 994, 999 (7th Cir. 2011) (fraudulent joinder is present where the claim
against the non-diverse defendant is “utterly groundless”); Schur, 577 F.3d at 764
(in a fraudulent joinder analysis, the “district court must ask whether there is ‘any
reasonable possibility’ that the plaintiff could prevail against the non-diverse
defendant”). Although a defendant bears a “heavy duty” in this regard, “it need
not negate any possible theory that [the plaintiff] might allege in the future: only
[the plaintiff’s] present allegations count.” Poulos v. Naas Foods, Inc., 959 F.2d
69, 74 (7th Cir. 1992).
9
B. ALABAMA LAW
The AEMLD is the judicially created body of law governing product
liability claims in Alabama. In essence, the AEMLD is a modified version of the
strict liability set out in section 402A of the Restatement (Second) of Torts. See
Casrell v. Altec Indus., 335 So. 2d 128; Atkins v. American Motors Corp., 335
So. 2d 134. The primary difference between the AEMLD and section 402A is that,
unlike section 402A, the AEMLD does not impose a “no-fault” or strict liability
concept. Casrell, 335 So. 2d at 132. Instead, it “adhere[s] to the tort concept of
fault.” Id. See also Atkins, 335 So. 2d at 137, 140. Thus, to recover under the
AEMLD, it is not enough to simply show that a plaintiff took a drug and suffered a
resultant injury.
Instead, the plaintiff must show “fault” on the part of the
manufacturer, supplier, or retailer. Atkins v. Am. Motors Corp., 335 So. 2d 134,
139-140 (Ala. 1976).
“Fault” is established in an AEMLD action by showing that the
manufacturer, supplier, or retailer sold the product in a defective condition.
Sears, Roebuck & Co., Inc. v. Haven Hills Farm, 395 So. 2d 991, 994 (Ala.
1981).
That is, “[t]he fault of the manufacturer, or retailer, is that he has
conducted himself unreasonably in placing a product on the market which will
cause harm”; the existence of a “dangerously unsafe chattel is negligence within
itself.” Atkins, 335 So. 2d at 140.
plaintiff must show:
10
To establish liability under the AEMLD a
(1) he suffered injury or damages to himself or his property by one
who [sold] a product in a defective condition unreasonably dangerous
to the plaintiff, as the ultimate user or consumer, if
(a) the seller [was] engaged in the business of selling such a
product, and
(b) it [was] expected to and [did], reach the user or consumer
without substantial change in the condition in which it [was] sold.
Morguson v. 3M Co., 857 So. 2d 796, 800 (Ala. 2003) (citations and quotations
omitted).
Although retailers may be subject to liability under the AEMLD, they are
also afforded protection under the affirmative defense of lack of causal relation.
Pursuant to this defense, a defendant – other than a manufacturer – may escape
liability by:
affirmatively show[ing] that it did not contribute to the defective
condition, had no knowledge of it, and had no opportunity to inspect
the product. In other words, there was no causal relation in fact
between his activities in handling the product, and its defective
condition
Mathis v. Harrell Co., Inc., 828 So. 2d 248, 258 (Ala. 2002). The opportunity to
inspect “must be a meaningful one. Fleming Farms v. Dixie Ag Supply, Inc., 631
So. 2d 922, 928 (Ala. 1994). If the defect was latent and could not have been
discovered by either consumer or distributor there is no meaningful opportunity
to inspect. Id.
Under the lack of causal relation defense, a retailer that only
distributes finished products will not be liable under the AEMLD where the
retailer received the product in a defective condition, did not contribute to the
11
product’s defective condition, and where no reasonable means of inspection could
have revealed the alleged defective condition. See Id. at 927-928.
In the instant case, the Court must also consider Alabama’s treatment of
prescription drugs in product liability actions. The Alabama Supreme Court has
concluded that prescription drugs are considered “unavoidably unsafe products”
and are treated differently than standard products. As explained by the Alabama
Supreme Court in Stone v. Smith, Kline & French Laboratories 447 So.2d 1301,
1304 (Ala. 1984), 6 “in the case of an ‘unavoidably unsafe’ yet properly prepared
prescription drug, the adequacy of the accompanying warning determines whether
the drug, as marketed, is defective or unreasonably dangerous.”
Thus, under
Stone, with a properly prepared product, the element of “defect” in a drug case
under the AEMLD turns on the adequacy of the warning that accompanied the
product. Id.
The Alabama Supreme Court’s decision in Stone turns the Court’s attention
to a second issue that must be considered in this case – the learned intermediary
doctrine.
Stone marks the adoption of the learned intermediary doctrine in
Alabama. At issue in Stone, was whether a manufacturer's duty to warn extends
beyond the prescribing physician to the physician's patients who would ultimately
6
In Stone v. Smith, Kline & French Laboratories, 447 So.2d 1301 (Ala. 1984),
the Alabama Supreme Court adopted the learned-intermediary doctrine in a case
addressing whether a manufacturer's duty to warn extends beyond the prescribing
physician to the physician's patient who would ultimately use the drugs. .
12
use the drugs. The Alabama Supreme Court concluded that the manufacturer’s
duty to warn does not extend beyond the prescribing physician:
[W]here prescription drugs are concerned, the manufacturer's duty to
warn is limited to an obligation to advise the prescribing physician of
any potential dangers that may result from the drug's use
....Pharmaceutical companies then, who must warn ultimate
purchasers of dangers inherent in patent drugs sold over the counter,
in selling prescription drugs are required to warn only the
prescribing physician, who acts as a “learned intermediary” between
manufacturer and consumer.
Stone v. Smith, Kline & French Lab., 447 So.2d 1301, 1304 (Ala. 1984) (quoting
Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1276 (5th Cir. 1974)).
In Walls v. Alpharma USPD, Inc., 887 So. 2d 881, 882 (Ala. 2004), the
Alabama
Supreme
Court
extended
the
pharmacists dispensing prescription drugs.
learned-intermediary
doctrine
to
The court held that the “learned-
intermediary doctrine forecloses any duty upon a pharmacist filling a physician's
prescription, valid and regular on its face, to warn the physician's patient, the
pharmacist's customer, or any other ultimate consumer of the risks or potential
side effects of the prescribed medication.” Id. at 886.
In so holding, the court
discussed the policies underlying the learned intermediary doctrine:
The relationship between physician-patient-manufacturer applies
equally to the relationship between the physician-patient and
pharmacist. In both circumstances the patient must look to the
physician, for it is only the physician who can relate the propensities
of the drug to the physical idiosyncrasies of the patient. “It is the
physician who is in the best position to decide when to use and how
and when to inform his patient regarding risks and benefits
pertaining to drug therapy.” W. Keeton, R. Keeton & D. Owen,
Prosser and Keeton on Torts § 96, at 688 (5th ed.1984)
13
Walls, 887 So. 2d at 885-86 (quoting McKee v. American Home Prods. Corp.,
113 Wash. 2d 701, 782 P.2d 1045, 1051 (1989)). The Alabama Supreme Court
subsequently explained that Stone and Walls “sought to prevent, asking the
pharmacist to intrude himself or herself into the physician-patient relationship
and requiring the pharmacist to give advice or take actions that he or she is
neither licensed nor trained to give or take.” Nail v. Publix Super Markets, Inc.
72 So. 3d 608, 615 (Ala. 2011). 7
V. ANALYSIS
A. AMOUNT IN CONTROVERSY
Plaintiff claims that she “suffered severe injuries and other damages” as a
result of Yasmin and Ocella, “including but not limited to thirteen blood clots and
pulmonary embolisms in her right leg, left arm and both lungs, two of which
passed through her heart.” The complaint further describes plaintiff’s injuries as
“sever and permanent,” including, “the inability to be on birth control in the
future,. . . emotional distress, mental anguish, and. . . the potential for future
thromboembolic events.”
Plaintiff alleges “physical pain” and “diminished
enjoyment of life,” and claims her injuries are both “serious” and “lifethreatening,” allegedly requiring “lifelong medical treatment, monitoring, and/or
medications.” Plaintiff also seeks punitive damages. These alleged injuries make
7
The Alabama Supreme Court has also noted that its decision in Walls was not
expressly limited to product liability actions. Springhill Hospitals, Inc. v.
Larrimore 5 So. 3d 513, 518 n.8 (Ala. 2008).
14
it abundantly clear that plaintiff is seeking damages in excess of $75,000. See
Walton v. Bayer Corp., 643 F.3d 994, 998 (7th Cir. 2011). Thus, the amount in
controversy requirement is met.
B. FRAUDULENT JOINDER
In her motion to remand, plaintiff states that her claim against Gregerson’s
if filed pursuant to the AEMLD, which allows “an aggrieved Plaintiff to bring a
cause of action against the sellers (Gregerson’s) of a defective product” (Doc. 14 p.
6). This seemingly simply assertion presents a slew of issues that the Court will
attempt to address one by one.
Initially, the Court notes that plaintiff’s complaint does not delineate which
claims are brought pursuant to the AEMLD - other than to state that “[t]his is an
action brought pursuant to the Alabama Extended Manufacturer’s Liability
Doctrine (“AEMLD”) for strict products liability, breach of express and implied
warranties, negligence, negligence per se, fraudulent suppression, fraudulent
misrepresentation, fraud, and negligent misrepresentation.” (Doc. 1-1 p. 1). The
Alabama Supreme Court has recently indicated that individual common law or
statutorily created causes of action are distinct from a claim under the AEMLD. 8
8
Until recently, Alabama courts and federal courts applying Alabama law
frequently concluded that the AEMLD subsumed individual common law or
statutorily created causes of action. See e.g., Spain v. Brown & Williamson
Tobacco Corp., 230 F. 3d 1300 (11th Cir. 2000). Thus, in product liability
actions, claims for negligence or breach of warranty (for example) were frequently
merged into a single cause of action under the AEMLD. See Spain v. Brown &
Williamson Tobacco Corp., 230 F. 3d 1300 (11th Cir. 2000). In 2003, the
15
Thus, the claims asserted in plaintiff’s complaint would be alleged in addition to
an AEMLD claim and not under the AEMLD. As to the assertion regarding “strict
products liability,” Alabama does not adhere to a system of strict product liability.
As discussed above, the AEMLD is a modified version of strict liability, which has
been described as a “fault based defective product theory.” Atkins v. Am. Motors
Corp., 335 So. 2d 134, 140 (Ala. 1976).
Another issue with plaintiff’s position is that the only claim directed against
Gregerson’s is a claim for breach of express warranty. To establish a claim for
breach of express warranty, a plaintiff must prove that a manufacturer or seller of
a product made “[a]ny affirmation of fact or promise ... which relates to the goods
and becomes part of the basis of the bargain.” Ala. Code § 7-2-213(1)(a) (2002).
Plaintiff does not allege that Gregerson’s made any representation regarding the
subject drug. Instead, plaintiff alleges that Gregerson’s is liable for failing to warn
her about the subject drug’s potentially adverse side effects.
Considering the
allegations in the complaint, plaintiff cannot maintain a cause of action for breach
of express warranty against Gregerson’s.
Alabama Supreme Court issued two decisions rejecting the merger doctrine. See
Spain v. Brown & Williamson Tobacco Corp., 872 so.2d 101 (Ala. 2003) (tort
claims for negligence and wantonness are not subsumed by the AEMLD; claim of
breach of implied warranty of merchantability is distinct from an AEMLD claim);
Tillman v. R.J. Reynolds Tobacco Co., 871 So. 2d 28 (Ala. 2003) (per curiam
opinion answering certified question from the Eleventh Circuit finding that
although there was no potential cause of action against the defendant cigarette
retailers, there was a potential cause of action against the retailers based on
negligence, wantonness, or civil conspiracy).
16
Finally, even if plaintiff had alleged a claim for failure to warn or a claim
under the AEMLD against Gregerson’s, her claims would have no reasonable
chance of success. A failure to warn claim directed against Gregerson’s would
have no reasonable chance of success given the Alabama Supreme Court’s
decision in Walls v. Alpharma USPD, Inc., 887 So. 2d 881, 882 (Ala. 2004),
which extends the learned intermediary doctrine to pharmacies. With regard to
an AEMLD claim, the Alabama Supreme Court has stated that, for cases involving
prescription drugs, which are inherently unsafe, “the adequacy of [a drug’s]
accompanying warning determines whether the drug, as marketed, is defective, or
unreasonably dangerous.
Stone, 447 So. 2d at 1304.
This decision, in
conjunction with the extension of the learned intermediary doctrine announced in
Walls, preclude liability under the facts of this case.
To the extent that plaintiff contends Gregerson’s is liable under the AEMLD
not because it is a pharmacy but because it is a distributor, the affirmative
defense of lack of causal relation precludes liability.
Plaintiff does not allege any
action by Gregerson’s as a retail store which contributed to the harm alleged. Nor
does plaintiff allege any reasonable means of inspection by which Gregerson’s
should have – or even could have – discovered the allegedly defective nature of the
subject drug.
Accordingly, there is no reasonable possibility that an Alabama
Court would subject Gregerson’s to liability simply for its role in the chain of
distribution. See Mathis v. Harrell Co., Inc., 828 So. 2d 248, 258 (Ala. 2002);
Fleming Farms v. Dixie Ag Supply, Inc., 631 So. 2d 922, 927-928 (Ala. 1994).
17
VI. CONCLUSION
The only claim directed against Gregerson’s is a claim for breach of express
warranty.
Because plaintiff has failed to allege any representation made by
Gregerson’s, her breach of express warranty claim has no reasonable chance of
success. To the extent that plaintiff has stated a claim under the AEMLD or a
common law failure to warn claim against Gregerson’s, these claims have no
reasonable chance of success for the reasons discussed herein. Accordingly, the
Court disregards the citizenship of Gregerson’s as a fraudulently joined
defendant.
The remaining defendants are completely diverse from plaintiff.
Consequently, the court finds that it has diversity jurisdiction pursuant to 28
U.S.C. § 1332.
Accordingly, it is
ORDERED that the plaintiff's motion to remand is hereby DENIED.
So Ordered
Digitally signed by
David R. Herndon
Date: 2012.05.10
14:36:20 -05'00'
Chief Judge
United States District Court
18
Date: May 10, 2012
19
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