Kwasniewski et al v. sanofi-aventis U.S., LLC et al
Filing
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ORDER Denying 8 Plaintiffs' Motion to Remand to State Court. IT IS FURTHER ORDERED that 65 Plaintiffs' Motion to Stay is DENIED. Signed by Judge Gloria M. Navarro on 12/17/12. (Copies have been distributed pursuant to the NEF - EDS)
UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JENNIFER KWASNIEWSKI, individually )
and as Special Administrator of the
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ESTATE OF ANDREW A.
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KWASNIEWSKI; TAYLOR L.
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KWASNIEWSKI; DYLAN A.
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KWASNIEWSKI, a minor, by and through )
Jennifer Kwasniewski, his mother and
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guardian,
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Plaintiffs,
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vs.
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SANOFI-AVENTIS U.S., LLC, a
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Delaware limited liability company;
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NADINE LEONE, MFT; BEHAVIORAL )
HEALTHCARE OPTIONS, INC., a
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Nevada corporation,
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Defendants.
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Case No. 2:12-cv-00515-GMN-RJJ
ORDER
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Pending before the Court is Plaintiffs Jennifer Kwasniewski, Taylor Kwasniewski,
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and Dylan Kwasniewski’s Motion for Remand (ECF No. 8) and Motion to Stay (ECF No.
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65). Plaintiffs assert that there is not complete diversity between all parties and thus the
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Court lacks subject matter jurisdiction. Alternatively, Defendant Sanofi-Aventis U.S.,
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LLC argues that Nevada Defendants are fraudulently joined to the action. For the
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reasons set forth below, the motions are denied.
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I.
BACKGROUND
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This dispute arises out of the tragic passing of Andrew Kwasniewski. Mr.
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Kwasniewski had been prescribed Ambien for sleeplessness, and although he took it as
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prescribed, he allegedly suffered complications from the drug, which ultimately resulted
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in his death. Surviving members of Mr. Kwasniewski’s family (“Plaintiffs”) brought suit
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in Nevada state court against Defendant Sanofi-Aventis U.S., LLC (“Sanofi”), the
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manufacturer of the drug Ambien, for wrongful death, negligence, products liability, and
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various other torts. Plaintiffs also included a negligence claim against Defendant Nadine
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Leone, MFT (“Leone”) who was allegedly acting as an agent of Defendant Behavioral
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Healthcare Options, Inc. (“BHO”).
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Leone is a Marriage and Family Therapist who saw Mr. Kwasniewski one time.
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Plaintiffs allege that Leone, although not the prescriber of the Ambien, knew that Mr.
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Kwasniewski was taking Ambien, knew that Mr. Kwasniewski was having suicidal
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ideations, and was therefore under a duty to warn him of the drug’s potential mental and
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emotional side-effects. Plaintiffs further allege that Leone’s failure to warn Mr.
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Kwasniewski of the side effects of Ambien led to his death.
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Because Plaintiffs are all residents of Nevada, the presence of Leone, a Nevada
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resident, and BHO, a Nevada Corporation, destroys diversity. Nonetheless, Sanofi
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removed the case to federal court claiming that Leone and BHO were fraudulently joined.
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Leone and BHO joined in the removal and the fraudulent joinder claim. Plaintiffs now
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move the Court to remand the action back to state court. Additionally, Plaintiffs moved
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the Court to stay any action in the case pending resolution of the motion to remand.
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II.
LEGAL STANDARD
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Although an action may be removed to federal court only where there is complete
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diversity of citizenship, “one exception to the requirement for complete diversity is where
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a non-diverse defendant has been ‘fraudulently joined.’” Morris v. Princess Cruises, Inc.,
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236 F.3d 1061, 1067 (9th Cir. 2001). Joinder is fraudulent “[i]f the plaintiff fails to state
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a cause of action against a resident defendant, and the failure is obvious according to the
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settled rules of the state.” Hamilton Materials, Inc. v. Dow Chemical Corp., 494 F.3d
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1203, 1206 (9th Cir. 2007) (quoting McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339
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(9th Cir. 1987)). In such a case, the district court may ignore the presence of that
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defendant for the purpose of establishing diversity. Morris, 236 F.3d at 1067.
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“The defendant seeking removal is entitled to present the facts showing the joinder
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to be fraudulent.” McCabe, 811 F.2d at 1339. However, the party asserting fraudulent
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joinder carries a “heavy burden” of persuasion. Hunter v. Philip Morris USA, 582 F.3d
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1039, 1046 (9th Cir. 2009). “The defendant must demonstrate that there is no possibility
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that the plaintiff will be able to establish a cause of action in state court against the
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alleged sham defendant.” Good v. Prudential Ins. Co. of Am., 5 F. Supp. 2d 804, 807
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(N.D. Cal. 1998).
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III.
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Plaintiffs’ claims against Leone and BHO are contingent upon whether, under
DISCUSSION
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Nevada law, a Marriage and Family Therapist has a duty to warn a patient about the
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potential side-effects of a drug which she is aware the patient is taking, but which she did
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not—and legally could not—prescribe. Whether a party owes another a duty of care is “a
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question of law to be determined solely by the courts.” Turner v. Mandalay Sports
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Entm’t, 180 P. 3d 1172, 1177 (Nev. 2008). When no statute or common law exists that
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imposes a duty, a plaintiff cannot prevail on a negligence claim. See Phillips v. Clark
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Cnty. Sch. Dist., No. 2:10-CV-02068-GMN-PAL, 2011 WL 4343979, at *3 (D. Nev.
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Sept. 14, 2011) (holding that no duty existed when no party could identify “any Nevada
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statute or common law that imposes such a duty”).
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No statute or case in Nevada imposes a duty on Marriage and Family Therapists to
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warn their patients about potential side effects of the patient’s prescription drugs.
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Generally, the duty to warn about potential side effects of a drug rests solely with the
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prescribing physician. See Klasch v. Walgreen Co., 264 P.3d 1155, 1158 (Nev. 2011).
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This general rule seeks to prevent less-informed intermediaries from second-guessing the
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decision of a treating physician who has superior, more comprehensive knowledge as to
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the patient’s specific medical situation and the risk-benefit balance of prescribing a
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particular drug. See id. at 1159 (citing Ingram v. Hook’s Drugs, Inc., 476 N.E.2d 881,
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886–87 (Ind. Ct. App. 1985)). This rule is both for the benefit of patients who may be
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harmed by second-guessing from less informed sources, as well as protecting
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intermediaries from being forced to interject themselves into the doctor-patient
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relationship, thereby practicing medicine without a license. See id. at 1159-60 (citing
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Happel v. Wal-Mart Stores, Inc., 766 N.E. 2d 1118, 1128 (Ill. 2002)).
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Nevada law does, however, recognize a limited exception for pharmacists, who
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may have a duty to warn of prescription drug side effects in circumstances where they
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have knowledge of a customer-specific risk—such as a known allergy or a harmful
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interaction with another prescription. Id. at 1161. This “pharmacist exception” creates a
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safety net, of sorts, for patients by imposing a duty to warn on pharmacists when, because
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of their expertise in pharmacology and their customer-specific knowledge in relation to
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that expertise, a pharmacist’s knowledge of the patient’s situation is superior to that of
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the treating physician. See id. at 1160. Additionally, because the exception is based on a
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pharmacist’s existing knowledge, without diagnosis or investigation, concerns regarding
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the unauthorized practice of medicine are minimized. See id. (citing Walton v. Bayer
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Corp., 643 F.3d 994, 1000 (7th Cir. 2011).
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Plaintiffs assert that the pharmacist exception also applies to Marriage and Family
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Therapists and therefore, Leone had a duty to warn under Nevada law. Specifically,
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Plaintiffs allege that Leone (1) had knowledge Mr. Kwasniewski was using Ambien, (2)
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had client-specific knowledge that Mr. Kwasniewski was having suicidal thoughts, and
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(3) in order to receive her Marriage and Family Therapy license from the state of Nevada,
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Leone had been instructed, taught, and tested on “medication side effects.” Plaintiffs
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argue that because of the specific knowledge Leone had about Mr. Kwasniewski and the
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general knowledge Leone had about medication side effects, the pharmacist exception
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applies and Leone had a duty to warn.
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Expansion of the pharmacist exception to this scenario is not supported by the
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public policy underlying both the general rule and the exception. First, the pharmacist
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exception imposes, in appropriate instances, consultation from an expert in pharmacology
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on matters relating to pharmacology. Although a licensed Marriage and Family Therapist
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may have some general knowledge of certain side effects of certain prescription drugs,
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which may aid her in counseling patients, her knowledge is not nearly to the level of
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specialty held by a pharmacist. Consequently, consultation from a therapist on matters of
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pharmacology constitutes the second-guessing of one with limited knowledge that the
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rule seeks to prevent.
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Second, information about a patient’s prescriptions is not automatically known to
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a therapist and requires investigation and, to some extent, diagnosis. As such, imposing a
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duty to warn could require therapists, with limited knowledge of the patient’s entire
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medical situation, to interject themselves into the doctor-patient relationship.
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Consequently, the concerns about therapists practicing medicine without a license are not
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minimized and the policies supporting the general rule remain in place. The pharmacist
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exception cannot apply to Marriage and Family Therapists.
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As Plaintiffs cannot establish a cause of action in state court against Defendants
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Leone and BHO, Leone and BHO are fraudulently joined and the Court ignores their
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presence for purposes of diversity. The only other defendant, Sanofi, is a citizen of
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Delaware. Further, although the complaint does not allege a specific dollar amount of
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damages, the Court finds that the claims in this case surrounding the wrongful death of
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Mr. Kwasniewski facially and apparently exceed the required $75,000. See Singer v.
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State Farm Mut. Automobile Ins. Co., 116 F.3d 373, 375-77 (9th Cir. 1996). Therefore,
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the requirements for diversity jurisdiction are met and the Motion to Remand is denied.
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Additionally, because the Motion to Remand has been resolved and the Court has
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determined it has jurisdiction over the suit, the Motion to Stay is denied as moot.
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IV. CONCLUSION
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IT IS HEREBY ORDERED that Plaintiffs’ Motion to Remand (ECF No. 8) is
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DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Stay (ECF No. 65) is
DENIED.
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DATED this 17th day of December, 2012.
DATED this 5th day of December, 2012.
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_________________________
Gloria M. Navarro
United States District Judge
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