Aranda et al v. Walgreen Co et al.

Filing 19

ORDER denying plaintiffs' 9 MOTION to Remand to State Court. Walgreen Co. is dismised with prejudice and terminated from this case. Hoffmann-La Roche Inc. is ordered to file an affidavit indicating its principle place of business by 5/30/2012. Signed by Chief Judge David R. Herndon on 5/23/2012. (msdi)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

GABY ARANDA, et al.,
Plaintiffs,
v.
WALGREEN CO., d/b/a Walgreens, et al.,
Defendants.

No. 12-cv-337-DRH

ORDER

HERNDON, Chief Judge:

This is the second time this case has been removed to federal court based
upon diversity jurisdiction. The first time it was removed, Judge Gilbert remanded
this case back to the St. Clair County circuit court on the basis that complete
diversity was lacking because the case contained both New Jersey plaintiffs, i.e.,
Anthony Marone and Roger Coron, and defendants, i.e., Hoffmann-La Roche Inc. and
Roche-Laboratories Inc. See Doc. 17, 11-cv-00654-JPG-DGW. That impediment to
the Court’s jurisdiction is no longer here as plaintiffs have voluntarily dismissed
Marone’s causes of action and have shown that Coron was a citizen of New York, not
New Jersey. Rather, this time around, the Court must decide whether defendant
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Walgreen Co., d/b/a Walgreens, an Illinois citizen (there are four plaintiffs who are
alleged to be Illinois citizens1), prohibits this Court from having jurisdiction over this
matter. Based upon the Seventh Circuit’s decision in Walton v. Bayer Corp., 643
F.3d 994 (7th Cir. 2011), the Court finds that the state of plaintiffs’ complaint at the
time of removal clearly fails to allege what is necessary against the pharmaceutical
retailer and so the claims against Walgreens must be dismissed, thereby removing
any barrier to the Court’s jurisdiction. Thus, plaintiffs motion to remand (Doc. 9)
is denied.
I. Background
On June 24, 2011, numerous (seventy-one) plaintiffs filed suit against
defendants Wagreens, Hoffmann-La Roche Inc., Roche Laboratories Inc., F.
Hoffmann-La Roche Ltd., and Roche Holding Ltd. for personal injuries they suffered
after being exposed to the pharmaceutical drug Accutane, which is alleged to have
been manufactured by defendants Hoffmann-La Roche Inc. and Roche Laboratories,
Inc., and sold by defendant Walgreens. On July 29, 2011, defendants Hoffmann-La
Roche Inc. and Roche Laboratories Inc. (collectively the answering defendants or
defendants) filed a notice of removal (Doc. 3), removing the case from St. Clair
County circuit court to this Court on the basis of diversity jurisdiction. Doc. 3, 11-cv654-JPG-DGW. In the notice of removal, defendants alleged that plaintiffs’ complaint
fraudulently joined defendant Walgreens and fraudulently brought claims on behalf

1

Those four plaintiffs are: Lindsey Burnham, Sean Landgraf, Viola Lemon,
and Ralph Lemon.
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of two New Jersey citizens in order to defeat diversity jurisdiction. Thus, defendants
argued that because of the fraudulent joinder and misjoinder of non-resident
plaintiffs, the Court had jurisdiction. On August 25, 2011, the Court, via Judge
Gilbert, issue a memorandum and order, remanding this case to state court on the
basis that there were New Jersey plaintiffs and defendants. See Doc. 17, 11-cv-654JPG-DGW. At the time Judge Gilbert issued his remand order, the case was pending
transfer for consolidated multidistrict proceedings in In re Accutane Products
Liability Litigation, MDL No. 1626.
On April 27, 2012, defendants Hoffmann-La Roche Inc. and Roche
Laboratories Inc. filed another notice of removal (Doc. 2)2 in this Court, noting that
since the case was remanded to state court, plaintiffs have dropped the claims of the
New Jersey citizen Marone, and that the deposition testimony of plaintiff Coron
established that he was a resident of New York,3 thereby nullifying the district court’s
2

It is undisputed that defendants filed their notice of removal pursuant to
28 U.S.C. § 1446(b)(3), after discovering through Coron’s deposition that he was
in fact a citizen of New York and not New Jersey. See 28 U.S.C. § 1446(b)(3) (“[A]
notice of removal may be filed within 30 days after receipt by the defendant,
through service or otherwise, of a copy of an amended pleading, motion, order or
other paper from which it may first be ascertained that the case is one which is or
has become removable.”).

3

Despite defendants alleging residency and not citizenship in the notice of
removal, the Court finds that Coron’s deposition testimony, the fact that plaintiffs
do not dispute that Coron is a citizen of New York, and the fact that defendants
argue that Coron is a citizen of New York in their response to plaintiffs’ motion to
remand, sufficiently establish Coron’s citizenship. See Chi. Stadium Corp. v.
Ind., 220 F.2d 797, 798-99 (7th Cir. 1955) (noting that factual allegations of
citizenship must be made in the pleadings, demonstrating complete diversity);
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prior basis for finding complete diversity lacking. Defendants still contend that
defendant Walgreens was fraudulently joined. That same day, defendants filed a
notice of potential tag-along with the United States Judicial Panel on Multidistrict
Litigation (the Panel), and on May 2, 2012, the Panel issued a Conditional Transfer
Order (CTO). On May 7, 2012, plaintiffs filed with the Panel their opposition to the
CTO and moved to vacate the CTO because the federal court lacked subject matter
jurisdiction. Defendants responses are due May 29, 2012.
On May 9, 2012, plaintiffs filed a motion to remand (Doc. 9), a memorandum
in support thereof (Doc. 10), and a motion to expedite briefing (Doc. 11) so that
plaintiff’s motion to remand would be ripe for decision prior to the Panel’s May 29,
2012, briefing deadline related to the CTO. On May 11, 2012, the Court granted
plaintiffs motion to expedite briefing (Doc. 14), and ordered defendants to file their
responses by May 18, 2012. On May 18, 2012, defendants filed their response (Doc.
14), and May 21, 2012, plaintiffs filed a reply to that response (Doc. 15). For the
reasons that follow, the Court denies plaintiffs’ motion to remand (Doc. 9).
II. Analysis
In plaintiffs’ motion to remand, plaintiffs contend that this case should be
remanded back to state court for lack of subject matter jurisdiction “because (1)
complete diversity of citizenship is lacking because four [p]laintiffs and [d]efendant

Tylka v. Gerber Products Co., 211 F.3d 445, 448 (7th Cir. 2000) (“[A]llegations of
residence are insufficient to establish diversity jurisdiction.”) (citing Guaranty
Nat’l Title Co. v. J.E.G. Assocs., 101 F.3d 57, 59 (7th Cir. 1996) (“When parties
allege residence but not citizenship, the court must dismiss the suit.”)).
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Walgreens are citizens of Illinois and (2) [p]laintiffs’ claims against Walgreens are
recognized as meritorious under prevailing Illinois law, and therefore, Walgreens was
not fraudulently joined in this action.”4 Defendants contend, on the other hand, that
Walgreens has been fraudulently joined, and that plaintiffs’ tactic of naming a nondiverse pharmacy in a failure to warn lawsuit against a pharmaceutical company
constitutes fraudulent joinder under Walton. Defendants also contend that due to
the troubling conduct of plaintiffs’ counsel in alleging New Jersey citizenship, when
in fact there were no New Jersey plaintiffs, defendants should be awarded the fees
and costs it has incurred in this second removal. Plaintiffs posit that there is no
basis for awarding fees and costs to defendants.
It is well known that removal is proper over any action that could have been

4

Plaintiffs also contend that this case should be remanded because it is not
clear from defendants’ allegations where Hoffmann-La Roche Inc. has its principle
place of business, and because it is unclear whether defendants’ allegation that F.
Hoffmann-La Roche, Ltd., and Roche Holding Ltd. are foreign entities is based
upon personal knowledge or upon information and belief. Defendants respond by
arguing that it is clear plaintiffs have alleged and relied upon the fact that
Hoffmann-La Roche Inc. is a New Jersey corporation and that Judge Gilbert
recognized it as such in remanding previously, and that F. Hoffmann-La Roche
Ltd. and Roche Holding Ltd. are clearly diverse. In any event, plaintiff contends
that those entities have never been properly served so their consent to removal is
not required. As to this latter argument, the Court agrees. See Murphy Bros.,
Inc. v. Michetti Pipe Strining, Inc., 526 U.S. 344, 347-48 (1999) (holding “that a
named defendant’s time to remove is triggered by simultaneous service of the
summons and complaint, or receipt of the complaint, ‘through service or
otherwise,’ after and apart from service of the summons, but not by mere receipt
of the complaint unattended by any formal service.”). With regard to Hoffmann-La
Roche Inc.’s principal place of business, the Court orders Hoffmann-La Roche Inc.
to file an affidavit indicating its principle place of business within seven days of
this order. If Hoffmann-La Roche Inc.’s principle place of business defeats
complete diversity, this case will be remanded to state court.
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filed originally in federal court. 28 U.S.C. § 1441; Tylka v. Gerber Products Co., 211
F.3d 445, 448 (7th Cir. 2000). 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). Defendant bears 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).
This case was removed here on the basis of diversity jurisdiction. “For good
or ill, Congress has authorized the removal of cases in which the parties are of
diverse citizenship and the states exceed $75,000.” Benson v. SI Handling Sys., Inc.,
188 F.3d 780, 783 (7th Cir. 1999). “When either side to such a suit prefers the
federal forum, that preference prevails.” Id.
The statute regarding diversity jurisdiction, 28 U.S.C. § 1332, requires
complete diversity between parties plus an amount in controversy exceeding
$75,000, exclusive of interest and costs.5 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 Entm’t Co., 106 F.3d 215, 217 (7th
Cir. 1997) (citations omitted).
“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

5

It is undisputed that the amount in controversy has been met in this case.
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Loss Ctrs., Inc., 577 F.3d 752, 763 (7th Cir. 2009) (citing Schwartz v. State Farm
Mut. Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir. 1999)). “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 (quoting Mayes v. Rapoport, 198 F.3d 457,
462 (4th Cir. 1999)).
“As many courts have noted, the term ‘fraudulent joinder’ is a bit of a
misnomer–the doctrine requires neither fraud nor joinder.” Schur, 577 F.3d at 763
n. 9. “Actual fraud in alleging jurisdictional facts will suffice to invoke the doctrine,
but the more typical ground is that a plaintiff brought a claim against a nondiverse
defendant ‘that simply has no chance of success, whatever the plaintiff’s motives.’”
Id. (quoting Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992)). “And
‘joinder’ is also misleading because it is irrelevant whether a nondiverse defendant
was actually ‘joined’ or simply named in the original complaint before the state
court.” Schur, 577 F.3d at 763 n. 9 (citing Mayes, 198 F.3d at 461 n. 8).
“Fraudulent joinder is difficult to establish–a defendant must demonstrate
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.’” Schur, 577 F.3d
at 764 (quoting Poulos, 959 F.2d at 73). “Framed a different way, the district court
must ask whether there is ‘any reasonable possibility’ that the plaintiff could prevail
against the non-diverse defendant.” Schur, 577 F.3d at 764 (quoting Poulos, 959
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F.2d at 73). “A defendant faces a ‘heavy burden’ to demonstrate that the joinder is
fraudulent, [citation], and some courts, including district courts within this circuit,
have suggested that the burden is even more favorable to the plaintiff than the
standard that applies to a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), [citations].” Schur, 577 F.3d at 764. “In conducting this analysis, a district
court must turn to state law to determine whether the plaintiff has any reasonable
possibility of success.” Id.
In Illinois, the “learned intermediary” doctrine “excuses the manufacturer of
a prescription drug from having to warn customers 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.”
Walton, 643 F.3d at 999-1000.

“The prescribing physician is 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
drug’s suitability for a particular patient.” Id. at 1000. “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.” Happel v. WalMart Stores, Inc., 199 Ill. 2d 179, 191 (Ill. 2002). But the doctrine does not just
apply to manufacturers, it also applies to pharmacies when they sell prescription
drugs, although the doctrine applies differently from its application to
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manufacturers. Id. Two cases, one by the Illinois Supreme Court in Happel and
one by the Seventh Circuit in Walton are illustrative of this point.
In Happel, the plaintiff, who was allergic to aspirin, ibuprofen, and
acetaminophen, experienced a severe reaction after taking Toradol, a pain reliever
prescribed by her physician. Toradol should not be taken by persons who are
allergic to aspirin and other nonsteroidal anti-inflammatory drugs (NSAIDS). The
plaintiff subsequently brought a negligence action against her physician and the
pharmacy who filled the prescription. The plaintiff’s physician settled, and the trial
court granted summary judgment in favor of the pharmacy. The Illinois appellate
court reversed, and the Illinois Supreme Court granted the pharmacy’s petition for
leave to appeal. On appeal, the Illinois Supreme Court considered “whether a
pharmacy has a duty to warn about a known drug contraindication6 where the
pharmacy is aware of a customer’s drug allergies and knows that the medication
prescribed by the customer’s physician is contraindicated for person with those
allergies.” Happel, 199 Ill. 2d at 180-81.
The Court concluded that a duty existed, finding that under the circumstances
of that case, the pharmacy had a duty to warn that was encompassed within the
pharmacists’ duty of ordinary care. Id. at 188-89 (citing Eldridge v. Eli Lilly & Co.,
138 Ill. App. 3d 124, 126 (Ill. App. Ct. 1985)). In addressing the pharmacy’s

6

“‘The term “contraindication” is defined as “an indication, symptom, or
condition that makes inadvisable a particular treatment or procedure.” Webster’s
Third New International Dictionary 495 (1993).” Happel, 199 Ill. 2d at 180 n. 1.
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argument that the “‘learned intermediary doctrine exempts pharmacists and
pharmacies from giving warnings to patients,’” the Illinois Supreme Court concluded
that this case was outside the purview of the learned intermediary doctrine. Happel,
199 Ill. 2d at 193-94. The court provided the following rationale for its decision:
Here, [the pharmacy] was aware not only of [the plaintiff’s] drug
allergies, but also that Toradol was contraindicated for persons such
[the plaintiff] with allergies to aspirin. Imposing a duty to warn of this
contraindication would not require the pharmacist to “learn the
customer’s condition and monitor his drug usage.” [Citation]. On the
contrary, [the pharmacy] already had the knowledge it needed in order
to give an effective warning, and this warning required [the pharmacy]
only to notify [the plaintiff’s doctor] or [the plaintiff] of the Toradol
contraindication, not to monitor [the plaintiff’s] drug usage. [Footnote
omitted]. Further, imposing a duty to warn here would not have
intruded [the pharmacy] into the doctor-patient relationship, forcing it
to “practice medicine without a license.” [Citation].
Id. at 194. Accordingly, the Illinois Supreme Court held "that a narrow duty to warn
exists where . . . a pharmacy has patient-specific information about drug allergies,
and knows that the drug prescribed is contraindicated for the individual patient."
Id. at 197.
In Walton, the Seventh Circuit considered whether this court was correct when
it determined that the claims against the pharmacy had so little merit that the
pharmacy’s joinder as a defendant was fraudulent.

Applying the “learned

intermediary doctrine” to pharmacies, the court noted that “the doctrine’s logic
applies to pharmacies when they sell prescription drugs (like Yazmin), though
applies differently from its application to manufacturers.” Id. at 1000. The Court
explained how the doctrine applied to pharmacies as follows:

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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 dugs they sell. It would be senseless, especially given drug
regulation by the Food and Drug Administration and the extensive tort
liability of drug manufacturers, to make pharmacies liable in tort for he
consequences of failing to investigate the safety of thousands of drugs.
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 customers 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. [Citations]. But not otherwise.
Id. at 1000. Thus, the Seventh Circuit concluded “that in 48 states including Illinois
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. “So if [the pharmacy] knew that the plaintiff was abnormally
suspectible to a particular side of effect of Yazmin, it had a duty to warn her or her
physician.” Id. “But she doesn’t allege that the pharmacy knew anything about her
suspectibility, and so it had the full protection of the learned-intermediary doctrine.”
Id. at 1000-01. “So clear is this that the district court was right to invoke the
fraudulent joinder as a ground for dismissing [the pharmacy] from the case, with
prejudice, leaving only diverse defendants.” Id. at 1001.
Here, plaintiffs brought two counts against Walgreens: 1) “strict products
liability/sale of defective product” and 2) “negligence/failure to warn.” Walgreens
alleged the following with regard to any susceptibilities that Wagreens may have
been aware with regard to its customers:
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Walgreens knew or should have known about the respective health
conditions of the [p]laintiffs that they sold Accutane to based on their
health histories and records of other prescriptions that are in
Walgreens' possession. Walgreens provided warnings along with
Accutane that contained inaccurate information in that these
warnings failed to warn that Accutane had serious side effects,
including inflammatory bowel disease, Crohn's disease and ulcerative
colitis, and these are side effects that the Walgreens knew or should
have know of, and that [p]laintiffs should have been counseled
regarding the serious side effects of Accutane.
Despite plaintiffs’ arguments to the contrary, the Court finds that this is the
Walton case all over again. Plaintiffs allege that the manufacturing defendants
and Walgreens did not provide adequate warnings; they do not allege that
Walgreens had specific knowledge of each individual plaintiffs' susceptibility to the
adverse side effects of Accutane. Clearly it is possible to allege for each plaintiff
individually his or her medical susceptibility and how Walgreens knew of that
condition. While this may seem like a daunting task with so many plaintiffs in one
complaint, it is perhaps not as daunting as preparing a different complaint for
each plaintiff or paying a filing fee for each plaintiff. Nonetheless, this is what
Walton requires, and the allegations in this case come no where near the situation
in Happel where the Illinois Supreme Court found a narrow duty existed.
Accordingly, the motion to remand is denied. Walgreens is dismissed from this
case with prejudice. No fees and costs will be awarded.
III. Conclusion
For the reasons stated above, plaintiff’s motion to remand (Doc. 6) is
denied, Walgreens is dismissed with prejudice, no fees and costs are awarded,

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and Hoffmann-La Roche Inc. is ordered to file an affidavit indicating its principle
place of business within seven days of this order.
IT IS SO ORDERED.
Signed this 23nd day of May 2012.

Digitally signed by
David R. Herndon
Date: 2012.05.23
14:25:42 -05'00'
Chief Judge
United States District Court

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