Farmer, et al v. Wyeth, Inc., et al.

Filing 76

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiff's motion to remand [#37] is granted, and this action is remanded to the Circuit Court for the City of St. Louis (certified copy mailed to Circuit Court for the City of St. Louis). Signed by Honorable Catherine D. Perry on 6/17/11. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ANNETTE FARMER, et al.,
Plaintiffs,
vs.
WYETH, INC., et al.,
Defendants.

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Case No. 4:11CV348 CDP

MEMORANDUM AND ORDER
This matter is before me on plaintiffs’ motion to remand this action to the
Circuit Court for the City of St. Louis, Missouri. The motion will be granted.
This pharmaceutical tort case is one of nine that was filed by different
plaintiffs against numerous defendants in the Circuit Court for the City of St.
Louis, Missouri and then removed to this district.1 Like the other plaintiffs,
Annette Farmer claims that she developed tardive dyskinesia and other movement
disorders after using the drug Reglan or its generic equivalent. Her husband,
plaintiff Hubert Marion Farmer, alleges that he suffers from loss of consortium.
Plaintiffs bring this action against the pharmaceutical companies that
developed, manufactured, and sold Reglan and its generic equivalents. They also
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The other cases are Neeley, et al. v. Wyeth, Inc., et al., 4:11CV325 RWS; Nicely v.
Wyeth, Inc., et al., 4:11CV338 CDP; Newby v. Wyeth, Inc., et al., 4:11CV339 AGF; Ferguson v.
Wyeth, Inc., et al., 4:11CV360 SNLJ; Franzman v. Wyeth, Inc., et al., 4:11CV362 CAS; Harp v.
Wyeth, Inc., et al., 4:11CV363 AGF; Lawson v. Wyeth, Inc., et al., 4:11CV364 RWS; and Lyons
v. Wyeth, Inc., et al., 4:11CV365 CDP.

assert claims against defendant First Databank, a Missouri corporation and a
provider of patient education monographs (PEMs). PEMs are drug information
pamphlets typically stapled to a patient’s prescription, and provide information
about proper usage and the possible side effects and risks associated with a drug.
Plaintiffs assert that First Databank was negligent and violated the Missouri
Merchandising Practices Act by failing to describe the risks associated with the use
of Reglan and its generic equivalents – including developing tardive dyskinesia
and other movement disorders – in the PEMs it created for the drug.
Several defendants have removed this case, contending that this Court has
diversity jurisdiction. Plaintiffs move to remand and argue that this action is not
removable to federal court because defendant First Databank is a Missouri citizen.
Defendants counter that First Databank’s Missouri citizenship should not bar
removal, because it has not been properly served and because its joinder is
fraudulent. Because plaintiffs have stated colorable claims against First Databank,
and it was properly served, this Court lacks removal jurisdiction. I will therefore
remand the action to the Circuit Court for the City of St. Louis.
Additional Background Facts
After suffering from tardive dyskinesia and other movement disorders,
plaintiffs and sixteen others jointly filed a Petition in Missouri Circuit Court in the
City of St. Louis against numerous defendants who manufactured and sold Reglan

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and its generic equivalents. Brown v. Walgreens Co., Case No. 1022-CC00765
(Mo. Cir. Ct. filed Feb. 25, 2010). They also brought suit against companies that
published the Patient Education Monographs that provided information about
proper drug usage and the risks associated with the drug. Defendants filed motions
to transfer venue and to sever plaintiffs’ claims for misjoinder under Mo. R. Civ. P.
52.06. In November of 2010, the Honorable Robert Dierker, Circuit Judge,
granted defendants’ motion for misjoinder and severed plaintiffs’ claims.
Plaintiffs filed an amended petition on February 10, 2011. On February 24
manufacturing defendant Wyeth LLC removed plaintiffs’ case to this Court based
on diversity jurisdiction. At the same time, Wyeth removed several other of the
severed plaintiffs’ cases to this Court, including Lyons v. Wyeth, Case No.
4:11CV365 CDP and Nicely v. Wyeth, Case No. 4:11CV338 CDP.2 Plaintiffs have
moved to remand this case, and First Databank has moved to dismiss plaintiffs’
claims against it.
Discussion
As a preliminary matter, I conclude that this action is a continuation of the
original Brown case, and so plaintiffs were not required to re-serve First Databank
with a summons and a copy of plaintiffs’ amended petition. In opposition to
remand, defendants argue that Judge Dierker’s severance Order acted as a

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I am also remanding those cases by separate Orders.
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dismissal of plaintiffs’ action, and so plaintiffs were required to re-serve First
Databank with a summons and a copy of their amended petition when they filed it
on February 10, 2011. Because it is undisputed that plaintiffs did not do so,
defendants argue that First Databank has not been properly served and joined in
this case, and that its Missouri citizenship is therefore not a bar to removal. This is
incorrect. Judge Dierker’s Order merely severed the Brown plaintiffs’ cases for
misjoinder pursuant to Rules 52.05 and 52.06, Mo. R. Civ. P.; it did not dismiss
them. See Brown v. Walgreens Co., Case No. 1022-CC00765, slip op. at 4 (Mo.
Cir. Ct. Nov. 16, 2010) (“When parties are impermissibly joined in a cause of
action, the Court has the authority to sever the cases and require the plaintiffs to
proceed separately. Rule 52.06 . . . .”). Additionally, Rule 52.06 explicitly states
that “[m]isjoinder of parties is not grounds for dismissal of an action.” Instead, if
parties are misjoined, a court may sever the parties’ claims and allow them to
proceed separately, as Judge Dierker ordered in this case. See Mo. R. Civ. P.
52.06.
Moreover, nothing in Judge Dierker’s Order indicates that he intended to
dismiss plaintiffs’ action. The Order granted the severed plaintiffs leave to file
amended petitions without paying filing fees, and created sub-files for each severed
case. Defendants are correct that the Order directed the Clerk of the Court to issue
new cause numbers to the severed cases, but that was most likely done for

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convenience and did not operate to dismiss the cases. Accordingly, Judge
Dierker’s Order severing the cases did not operate to dismiss plaintiffs’ action, and
plaintiffs were not required to re-serve First Databank with a summons and a copy
of its amended complaint to join it to this action. See Schindler v. Wyeth, Case No.
4:06CV337 RWS, slip op. at 4-5 (E.D. Mo. June 29, 2010) (concluding that a
Missouri trial court’s Order severing plaintiffs’ cases did not operate as a dismissal
of those severed cases when the Order relieved plaintiffs of paying new filing fees
or obtaining service of process on defendants).
Defendants next argue that, even if First Databank as been properly joined to
this case, this Court still has removal jurisdiction because plaintiffs fraudulently
joined this defendant to defeat removal. I disagree. Under 28 U.S.C. § 1441(b), a
defendant may remove a civil action from state court to federal court based on the
diversity jurisdiction only if none of the properly joined defendants are citizens of
the state in which the original action was filed. See 28 U.S.C. § 1441(b); accord
Hurt v. Dow Chem. Co., 963 F.2d 1142, 1145 (8th Cir. 1992). When, as here, the
plaintiff has named a resident defendant in the state case, a removing defendant
may avoid remand only by establishing that the resident defendant was
fraudulently joined. See, e.g., Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 809 (8th
Cir. 2003). As the party invoking federal jurisdiction, the removing defendant
bears the burden of establishing jurisdiction by a preponderance of the evidence,

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and all doubts about jurisdiction are to be resolved in favor of remand. See, e.g., In
re Prempro Prods. Liab. Litig., 591 F.3d 613, 620 (8th Cir. 2010).
Fraudulent joinder occurs when a plaintiff files a “frivolous or illegitimate
claim” against a resident defendant solely to prevent removal. Junk v. Terminix
Int’l Co., 628 F.3d 439, 445 (8th Cir. 2010) (internal quotation marks and citation
omitted). Joinder is not fraudulent, however, if there is “arguably a reasonable
basis for predicting that the state law might impose liability based upon the facts
involved.” Filla, 336 F.3d at 811. In determining whether a defendant has been
fraudulently joined, a district court:
. . . should give paramount consideration to the reasonableness of the
of the basis underlying the state claim. Where applicable state
precedent precludes the existence of a cause of action against a
defendant, joinder is fraudulent . . . However, if there is a “colorable”
cause of action – that is, if the state law might impose liability on the
resident defendant under the facts alleged – then there is no fraudulent
joinder.
Id. at 810 (emphasis in original); see also Knudson v. Systems Painters, Inc., 634
F.3d 968, 980 (8th Cir. 2011) (case must be remanded unless plaintiff’s claims
against resident defendant have no reasonable basis in law or fact). Accordingly, I
must remand this action unless plaintiffs’ claims against First Databank have no
reasonable basis in law or fact.3
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The Eighth Circuit recently clarified that this reasonableness standard – not the “more
demanding” standard for dismissal under Rule 12(b)(6), Fed. R. Civ. P. – applies to determine
whether a defendant has been fraudulently joined. Junk v. Terminix Int’l Co., 628 F.3d 439, 44546 (8th Cir. 2010); accord Knudson v. Systems Painters, Inc., 634 F.3d 968, 980 (8th Cir. 2011).
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Here, defendants first argue that plaintiffs’ negligence claims against First
Databank are not colorable, because First Databank owed them no duty of care as a
matter of law. But defendants have not pointed to any Missouri or Kentucky law4
declining to impose a duty of due care on PEM publishers like First Databank.
Instead, they refer to cases applying California and Arkansas law in which courts
found that PEMs like First Databank owed no duty as a matter of law to warn
customers of the risks associated with prescription drugs. See, e.g., Cheatham v.
Teva Pharms. USA, 726 F. Supp. 2d 1021, 1024 (E.D. Ark. 2010) (granting
summary judgment to defendant PEM publisher because the undisputed facts did
not permit a finding that publisher owed any legal duty to warn consumer about
risks associated with Tramadol); see also Rivera v. First Databank, 115 Cal. Rptr.
3d 1, 8 (Cal. Ct. App. 2010) (plaintiffs failed to demonstrate that defendant PEM
publisher owed them any duty). Defendants are confusing the standards of review,
however. The question is not whether plaintiffs’ claims are weak or fail under
Rule 12(b)(6), but rather whether “it is clear under governing state law that the
complaint does not state a cause of action . . .” See Filla, 336 F.3d at 810.

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The parties agree that, under the facts of this case, either Kentucky or Missouri law will
apply. Plaintiffs are Kentucky citizens, plaintiff Annette Farmer used Reglan and its generic
equivalents in Kentucky, and plaintiffs suffered their alleged damages in Kentucky; First
Databank is a Missouri citizen. In any event, the parties also agree that the laws of the two states
do not conflict on any significant issue in this case. In particular, it is undisputed that no court in
either state has declared that PEM publishers like First Databank do not owe a duty to patients
like plaintiff as a matter of law.
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Although some courts applying California and Arkansas law have concluded that,
on the facts of those particular cases, the plaintiffs had failed to demonstrate that a
PEM publisher owed them any duty, no Missouri or Kentucky court has come to
this conclusion. Because defendants have failed to meet their burden of
demonstrating that applicable Missouri or Kentucky precedent precludes plaintiffs’
cause of action, they have failed to establish fraudulent joinder.
Moreover, plaintiffs have pointed to several legal theories under both
Missouri and Kentucky law that could support their claims against First Databank.
For example, they argue that Kentucky or Missouri law would recognize that First
Databank owes them a duty of care pursuant to the “social” or “universal” duty of
care that every person owes every other person. See, e.g., Isaacs v. Smith, 5
S.W.3d 500, 502 (Ky. 1999) (“Every person owes a duty to every other person to
exercise ordinary care in his activities to prevent foreseeable injury.”) (internal
quotation marks, alteration, and citation omitted); Pierce v. Platte-Clay Elec.
Coop., Inc., 769 S.W.2d 769, 776 (Mo. 1989) (en banc) (defendant breaches his
duty of care if it had knowledge, “actual or constructive, that there is some
probability of injury sufficiently serious that an ordinary person would take
precautions to avoid it.”). Plaintiffs also allege that the risks associated with the
use of Reglan and its generic equivalents were well known, and that a reasonable
person exercising ordinary care would have included warnings about these risks in

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the PEMs for these drugs. They also argue that Kentucky and Missouri courts
would recognize that First Databank owed them a duty:
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under the common-law theory that a defendant who voluntarily undertakes
to act owes a duty to act carefully, see, e.g., Berry v. Emery, Bird, Thayer
Dry Goods Co., 211 S.W.2d 35, 41 (Mo. 1948); Estep v. B.F. Saul Real
Estate Inv. Trust, 843 S.W.2d 911, 914 (Ky. Ct. App. 1992);

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under the Restatement of Torts (Second) § 324A, which recognizes that
defendants owe a duty to perform their contractual obligations in such a
manner as to avoid injury to third parties, see, e.g., Louisville Gas & Elec.
Co. v. Roberson, 212 S.W.3d 107, 111-12 (Ky. 2006); Brown v. Michigan
Millers Mut. Ins. Co., 665 S.W.2d 630, 632 (Mo. Ct. App. 1983);

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under its own industry standard of care, adopted by First Databank and other
PEM manufacturers in the “Keystone Guidelines,” and according to First
Databank’s own proclamations that its information is “scientifically
accurate” and “up-to-date,” see, e.g., Pierce 769 S.W.2d at 772 (“Evidence
of industry custom and standard is admissible proof in a negligence case.”);
Rigbsy v. Brighton Eng’g Co., 464 S.W.2d 279, 282 (Ky. 1970) (Reed, J.,
concurring) (“When one holds himself out as professionally expert in
design, the law may require of him a standard of skill commensurate with
the attendant circumstances which doubtless include the extent of the claim

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of expertise and the risk of harm to third parties by failure to perform skillfully.”).
In response, defendants make several legal and factual arguments about why
plaintiffs’ claims might fail under these legal theories, but these arguments
essentially boil down to arguments for dismissal under Rule 12(b)(6). As
discussed above, however, to show fraudulent joinder, defendants must “do more
than merely prove that the plaintiff’s claim should be dismissed pursuant to a Rule
12(b)(6) motion.” See Knudsen, 634 F.3d at 968. Because defendants have failed
to satisfy their burden of showing that plaintiffs’ claims against First Databank
have no reasonable basis in law or fact, they have failed to establish fraudulent
joinder of this defendant. Accordingly, this Court does not have jurisdiction over
this case, and it must be remanded.
For these reasons,
IT IS HEREBY ORDERED that plaintiff’s motion to remand [#37] is
granted, and this action is remanded to the Circuit Court for the City of St. Louis.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 17th day of June, 2011.
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