City of Parma v. Purdue Pharma L.P. et al

Filing 1

Notice of Removal from Cuyahoga County Common Pleas, case number CV 17 884281 with jury demand, Filing fee paid $ 400, receipt number 0647-8314264. Filer has indicated that case may be related to pending civil action 1:17-cv-1639. Filed by Endo Pharmaceuticals, Inc., Endo Health Solutions Inc. (Attachments: #1 Civil Cover Sheet, #2 Complaint, #3 State Court filings, #4 614 F.Supp.2d 868, #5 2017 WL 2843614, #6 2017 WL 3317300) (Coleman, Tera) Modified text on 9/7/2017 (S,SR).

EXHIBIT 3

Joseph v. Baxter Intern. Inc., 614 F.Supp.2d 868 (2009)

KeyCite Yellow Flag - Negative Treatment
Declined to Follow by Echols v. OMNI Medical Group, Inc., N.D.Okla.,

November 10, 2010

614 F.Supp.2d 868
United States District Court,
N.D. Ohio,
Western Division.

Motion denied in part.

West Headnotes (10)
[1]

Isreal JOSEPH, et al., Plaintiffs
v.
BAXTER INTERNATIONAL
INC., et al., Defendants.
Case No. 1:08HC60053.
|
May 13, 2009.
|
As Amended May 27, 2009.
Synopsis
Background: Persons related to patient filed products
liability and medical malpractice action in state court
against medical care providers and pharmaceutical
company for injuries and death allegedly caused by
ingestion of unsafely-tainted drug manufactured and sold
by company. Defendant removed action on the basis
of diversity and federal question jurisdiction. Plaintiffs
moved to remand.

The removing party bears the burden of
showing that federal jurisdiction exists. 28
U.S.C.A. § 1441(a).
Cases that cite this headnote
[2]

1 Cases that cite this headnote
[3]

Removal of Cases
Diversity of Citizenship of Coplaintiffs
and Codefendants
Complete diversity did not exist, as required
for diversity of citizenship jurisdiction in
removed action, where plaintiffs and some
defendants were from same state. 28 U.S.C.A.
§ 1332.
45 Cases that cite this headnote

[4]

[2] maintenance of products liability lawsuit in federal
court was not unfairly or unduly prejudicial to plaintiff
relatives;

Federal Courts
Dismissal as to one or more parties
Nondiverse and dispensable party can be
severed from litigation in order to achieve
diversity. 28 U.S.C.A. § 1332; Fed.Rules
Civ.Proc.Rule 21, 28 U.S.C.A.

[3] inconvenience and potential prejudice to defendant
pharmaceutical company substantially outweighed
inconvenience and possible prejudice to plaintiff relatives
in remaining before federal court; and

1 Cases that cite this headnote
[5]

[4] Court did not have federal question jurisdiction over
removed products liability action.

Removal of Cases
Evidence
All doubts regarding a removal petition must
be resolved against removal because removal
jurisdiction raises significant concerns about
federalism. 28 U.S.C.A. § 1441(a).

Holdings: The District Court, James G. Carr, Chief Judge,
held that:
[1] nondiverse medical care provider defendants were not
indispensable parties, and thus could be severed in order
to achieve diversity;

Removal of Cases
Evidence

Removal of Cases
Dismissal as to one or more coparties

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1

Joseph v. Baxter Intern. Inc., 614 F.Supp.2d 868 (2009)

Nondiverse medical care provider defendants
were not indispensable parties, and thus
could be severed in order to achieve
diversity, in removed products liability and
medical malpractice action against medical
care providers and pharmaceutical company
which arose from patient's injuries and
death allegedly caused by ingestion of
unsafely-tainted drug manufactured and
sold by company, since medical negligence
claim that physicians administered drug
to patient despite her chart noting
her allergy to it, among other things,
differed from products liability claim which
focused on company's conduct in designing,
manufacturing, labeling, and recalling tainted
drug. 28 U.S.C.A. § 1332; Fed.Rules
Civ.Proc.Rules 19, 21, 28 U.S.C.A.

remedy against providers as required for
severance as dispensable nondiverse parties
to achieve diversity, although fighting on
two fronts would no doubt be inconvenient
for them, and probably more expensive.
28 U.S.C.A. §§ 1332, 1441(a); Fed.Rules
Civ.Proc.Rules 19, 21, 28 U.S.C.A.
6 Cases that cite this headnote
[8]

Inconvenience and potential prejudice
to defendant pharmaceutical company
substantially outweighed inconvenience and
possible prejudice to plaintiff relatives in
remaining before federal court, favoring
severance of defendant medical care providers
as dispensable nondiverse parties to achieve
diversity, in removed products liability and
medical malpractice action alleging that drug
manufactured and sold by company was
tainted, since company was in multi-district
litigation (MDL), and without severance,
potentially could have been fighting many
more than just two fronts if it was
confronted with other cases involving similar
circumstances. 28 U.S.C.A. §§ 1332, 1441(a);
Fed.Rules Civ.Proc.Rules 19, 21, 28 U.S.C.A.

6 Cases that cite this headnote
[6]

Federal Courts
Dismissal as to one or more parties
If a party is necessary, within meaning of
joinder rule, then court determining whether
party is indispensable, thus precluding
severance of that party in order to achieve
diversity, considers whether: (1) a judgment
rendered in the party's absence would
prejudice the available party; (2) such
prejudice could be lessened or avoided; (3)
a judgment rendered in the party's absence
would be adequate; and (4) the plaintiff has an
adequate remedy if the action is dismissed for
nonjoinder. Fed.Rules Civ.Proc.Rule 19(a, b),
28 U.S.C.A.

5 Cases that cite this headnote
[9]

Removal of Cases
Dismissal as to one or more coparties
Maintenance of products liability lawsuit
in federal court against pharmaceutical
company and medical malpractice lawsuit
in state court on remand against medical
care providers was not unfairly or unduly
prejudicial to plaintiff relatives of patient who
had died, and thus plaintiffs retained adequate

Removal of Cases
Improper or collusive joinder of parties
Fraudulent misjoinder occurs when a
plaintiff attempts to defeat removal by
misjoining the unrelated claims of nondiverse party plaintiffs against a defendant,
or by misjoining unrelated claims of a
plaintiff against non-diverse party defendants.
Fed.Rules Civ.Proc.Rule 21, 28 U.S.C.A.

2 Cases that cite this headnote
[7]

Removal of Cases
Dismissal as to one or more coparties

5 Cases that cite this headnote
[10]

Removal of Cases
Cases Arising Under Laws of United
States

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2

Joseph v. Baxter Intern. Inc., 614 F.Supp.2d 868 (2009)

Federal district court did not have
federal question jurisdiction over removed
products liability and medical malpractice
action against medical care providers
and pharmaceutical company that arose
from injuries and death allegedly caused
by ingestion of unsafely-tainted drug
manufactured and sold by company. 28
U.S.C.A. §§ 1331, 1441(a).
Cases that cite this headnote

Attorneys and Law Firms
*870 James C. Lewis, Glenn Armentor, Lafayette, LA,
for Plaintiffs.
James P. Silk, Jr., Spengler Nathanson, Toledo, OH,
Leslie M. Smith, Renee D. Smith, Kirkland & Ellis,
Chicago, IL, Ravi Sinha, Adams & Reese, New Orleans,
LA, for Defendants.

ORDER
JAMES G. CARR, Chief Judge.
This is a products liability and medical malpractice
case. Plaintiffs Isreal Joseph, Sr., Ronald Joseph, Daniel
Devonce Joseph, Kimberly Renee Joseph, Erica J. Simon,
Barbara Joseph Payton, Carolyn Annette Joseph, Isreal
Paul Joseph, Jr., and Jonathan Lee Joseph [collectively
“the Josephs”] sued D & S Medical Staffing d/b/a Elite
Healthcare, L.L.C., Platinum Healthcare Staffing, L.L.C.,
Lisa Griffin, R.N., Norma Guilbeau, R.N. and Blaine
Theroit, N.P. [collectively “the Healthcare Defendants”]
and Baxter International, Inc. [“Baxter”]. Plaintiffs bring
suit for Merline Joseph's injuries and death, allegedly
caused by ingestion of unsafely-tainted Heparin, a drug
manufactured and sold by Baxter. The Josephs sued all
defendants in state court and Baxter removed the case to
federal court.
Pending is the Josephs' motion to remand and for
attorney's fees [Doc. 7], as well as Baxter's motion to
stay the proceedings [Doc. 9]. For the reasons discussed
below, I shall deny the Josephs' motion to remand as to
Baxter, but grant it as to the Healthcare Defendants. I

shall, furthermore, deny the Josephs' motion for attorney's
fees, and overrule Baxter's motion to stay as moot.

Background
Plaintiffs, all citizens of the State of Louisiana, sued
Baxter, a Delaware company with its principal place of
business in Deerfield, Illinois, in the 15th Judicial District
Parish of Lafayette, Louisiana. The Josephs bring suit
under Louisiana law for *871 the wrongful death of
Merline Joseph; they assert that Baxter failed to warn
users of Heparin's dangerous contaminants, and that
Heparin was unreasonably dangerous in its product's
composition and design.
Hours before Baxter filed its initial notice of removal,
the Josephs amended their complaint to add the
Healthcare Defendants. The Josephs allege that the
Healthcare Defendant's negligent acts and omissions in
the administration of Heparin contributed to Merline
Joseph's injuries and death. The Healthcare Defendants
are all citizens of Louisiana.
Baxter removed this case to the United States District
Court for the Western District of Louisiana on the
basis of diversity and federal question jurisdiction. That
court, in turn, referred this case to the Judicial Panel on
Multidistrict Litigation [“JPML” or “Panel”] to determine
whether to transfer it to me, pursuant to an order entered
in In re Heparin, MDL 1953. The Healthcare Defendants
did not join in the removal.
On July 18, 2008, the Josephs filed a motion to remand
and for an award of attorney's fees. On July 30, 2008,
Baxter filed a motion to stay the proceedings pending
possible transfer by the JPML. In response to these
motions, Magistrate Judge C. Michael Hill heard oral
arguments and filed a Report and Recommendation
[“Report”] recommending that the Josephs' motion to
remand be granted as to the Healthcare Defendants such
that they be dismissed without prejudice. The Magistrate
also recommended that all proceedings against Baxter
be stayed pending the outcome of the JPML's transfer
decision.
Unbeknownst to the Magistrate and before he issued his
Report, the JPML had already transferred this case. For
this reason, United States District Judge Doherty referred

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Joseph v. Baxter Intern. Inc., 614 F.Supp.2d 868 (2009)

the Magistrate's Report and Baxter's objections thereto to
me.
A. Rule 21: Dispensable Parties
Standard of Review
A defendant may remove any civil action in state court
“of which the district courts of the United States have
original jurisdiction.” 28 U.S.C. § 1441(a). After removal,
a plaintiff may bring a motion to remand to state court
under 28 U.S.C. § 1447(c).
[1] Baxter, as the removing party, bears the burden of
showing that federal jurisdiction exists. See Wilson v.
Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35,
66 L.Ed. 144 (1921); Rogers v. Wal–Mart Stores, Inc., 230
F.3d 868, 871–72 (6th Cir.2000). I must grant the Josephs'
motion to remand to state court if I find that complete
diversity jurisdiction or federal question jurisdiction do
not exist. Caterpillar Inc. v. Williams, 482 U.S. 386, 392,
107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (“Absent diversity
of citizenship, federal-question jurisdiction is required”
for proper removal to federal court).
[2]
Because removal jurisdiction raises significant
concerns about federalism, I must resolve “[a]ll doubts
regarding the removal petition ... against removal.” City
of Cleveland v. Deutsche Bank Trust Co., 571 F.Supp.2d
807, 811 (N.D.Ohio 2008) (citing Queen ex rel. Province
of Ontario v. City of Detroit, 874 F.2d 332, 339 (6th
Cir.1989)).

Discussion
Baxter contends that federal jurisdiction is warranted
under both diversity jurisdiction and federal question
jurisdiction.

1. Diversity Jurisdiction
[3] Under 28 U.S.C. § 1332, diversity of citizenship exists
when no plaintiff and no defendant are citizens of the
same state and the amount in controversy exceeds *872
$75,000. The Josephs correctly argue that on the face of
their complaint, complete diversity does not exist because
the plaintiffs and the Healthcare Defendants are both
from the State of Louisiana.

[4] Baxter, however, correctly asserts that under Rule
21 of the Federal Rules of Civil Procedure, I can
retain jurisdiction by severing claims against nondiverse
dispensable defendants. See Newman–Green, Inc. v.
Alfonzo–Larrain, 490 U.S. 826, 832, 109 S.Ct. 2218, 104
L.Ed.2d 893 (1989) (“[I]t is well settled that Rule 21
invests district courts with authority to allow a dispensable
nondiverse party to be dropped at any time, even after
judgment has been rendered.”); Soberay Mach. & Equip.
Co. v. MRF Ltd., 181 F.3d 759, 763 (6th Cir.1999) (“[I]t
is appropriate to drop a nondiverse and dispensable party
from litigation in order to achieve diversity.”); Safeco Ins.
Co. v. City of White House, 36 F.3d 540, 545 (6th Cir.1994)
(“Rule 21 of the Federal Rules of Civil Procedure permits
a district court to retain diversity jurisdiction over a case
by dropping a nondiverse party if that party's presence
in the action is not required under Federal Rule of Civil
Procedure 19.”).
[5]
To determine whether to drop the nondiverse
Healthcare Defendants, I must ascertain whether they are
indispensable parties. To make that decision, I am to
follow a two-step process under Fed.R.Civ.P. 19.
I first assess under Rule 19(a) whether a party is necessary
for just adjudication. A party is necessary if: “(1) complete
relief cannot be given to existing parties in his absence; (2)
disposition in his absence may impair his ability to protect
his interest in the controversy; or (3) his absence would
expose existing parties to substantial risk of double or
inconsistent obligations.” Safeco Ins. Co., supra, 36 F.3d
at 546; Fed.R.Civ.P. 19(a).
[6] If the party is necessary, then, under Rule 19(b), I
determine if he is indispensable by considering whether:
1) a judgment rendered in the party's absence would
prejudice the available party; 2) such prejudice could be
lessened or avoided; 3) a judgment rendered in the party's
absence would be adequate; and 4) the plaintiff has an
adequate remedy if the action is dismissed for nonjoinder.
Soberay, supra, 181 F.3d at 764.
Here, the Healthcare Defendants are not necessary
parties as the resolution of a claim against them
would not necessarily resolve the Josephs' claim against

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Joseph v. Baxter Intern. Inc., 614 F.Supp.2d 868 (2009)

Baxter. With regard to the Healthcare Defendants,
the Josephs allege medical negligence—namely, that
physicians administered Heparin to the decedent despite
her chart noting her allergy to Heparin, failed to obtain
informed consent, and did not have in place adequate
procedures to prevent improper use of Heparin. Such
medical malpractice allegations differ from the Josephs'
products liability claim which focuses on Baxter's conduct
in designing, manufacturing, labeling and recalling tainted
Heparin.
As such, the Healthcare Defendants do not meet any of
the elements required to be deemed necessary. See Temple
v. Synthes Corp., 498 U.S. 5, 7, 111 S.Ct. 315, 112 L.Ed.2d
263 (1990) (finding doctor who performed an implant
surgery was not a necessary party to a products liability
action against the medical device's manufacturer).
With regard to the Healthcare Defendants' dispensability,
the Magistrate found it “clear that the healthcare
defendants are not indispensable parties” and that “the
case can proceed without them.” [Doc. 26]. I agree.
*873 Other courts have found healthcare defendants to
be dispensable parties in similar litigation. See e.g., Todd
by Todd v. Merrell Dow Pharms., Inc., 942 F.2d 1173, 1176
(7th Cir.1991) (finding that the physician who ordered the
injection of a drug not indispensable in a products liability
case against a drug manufacturer).
A case decided in the Northern District of Ohio shares
nearly identical facts with the case at bar. In Phillips v.
Knoll Pharm. Co., No. 03–8044, Slip Op. at 2–3 (N.D.Ohio
September 4, 2003) (Gwin, J.), plaintiffs alleged that
their ingestion of a particular drug caused them injury.
Plaintiffs asserted claims against diverse pharmaceutical
defendants for strict liability, negligent product liability,
breach of warranty and fraud, and against nondiverse
prescribing physicians for medical malpractice. As in the
instant case, the pharmaceutical defendants removed the
action to federal court, and the JPML transferred the
case for MDL proceedings. Id. at 3. The court found
the physician defendants to be dispensable parties and
dropped them under Rule 21 to perfect its diversity
jurisdiction. Id. at 8–9. See also Williams v. Knoll Pharm.
Co., No.03–8030, Slip Op. at 5–7 (N.D.Ohio July 11, 2003)
(Gwin, J.) (dismissing nondiverse healthcare defendants
to retain diversity of citizenship over pharmaceutical
defendant).

The court in Phillips and Williams reasoned that the
plaintiffs still “have an adequate remedy if the Court
drops the nondiverse Physician Defendants because the
Meridia plaintiffs can proceed with their claims against the
Physician Defendants in state court.” Phillips, supra, No.
03–8044, Slip Op. at 9; Williams, supra, No.03–8030, Slip
Op. at 7.
[7] Here, similarly, the Josephs retain an adequate
remedy against the Healthcare Defendants as they can
proceed with their claims in state court. While fighting on
two fronts will no doubt be inconvenient for them, and
probably more expensive, I do not find the maintenance
of two lawsuits unfairly or unduly prejudicial to them.
One reason is that settlement, which is not an uncommon
occurrence in litigation such as this, is probably more
likely where this case is one among many. Even if this case,
indeed, does not settle, the plaintiffs will benefit from the
MDL process: they will not bear the burden of having to
engage on their own, and at their sole expense, in discovery
vis-a-vis Baxter.
[8] On balance, the inconvenience and potential prejudice
to Baxter if I remand substantially outweigh the
inconvenience and possible prejudice to the plaintiffs
from remaining before me. This would be especially so
if Baxter is confronted with other cases involving similar
circumstances. If such cases exist, and if remand were
found in these circumstances to be necessary, Baxter
would potentially be fighting many more than just two
fronts. 1
1

By this observation, I mean and make no
prejudgment as to other remand motions, when and
if such motions are filed. This opinion addresses the
circumstances in this case; my observation refers only
to the potential prejudice to Baxter if 1) remand
were required here; and 2) other cases coming to
me from other jurisdictions raised the same factual
circumstances.

My holding conforms to the JPML's recent decisions
in this MDL. In Lucas v. Springhill Hospitals, Inc.,
C.A. No. 1:09–hc–60016, facing similar facts, the Panel
found that the “medical negligence claims relating to the
failure to diagnose Heparin-induced thrombocytopenia
do not share sufficient questions of fact with claims
against Baxter and affiliated entities relating *874 to the

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Joseph v. Baxter Intern. Inc., 614 F.Supp.2d 868 (2009)

manufacture and sale of adulterated Heparin to warrant
inclusion of the former in MDL No. 1953 proceeding.”
Transfer Order at 1–2, Dkt. 1:08–hc–60000–JGC, # 63.
Likewise in Jolly v. Baxter Healthcare Corp. et al.,
No. 9:09–cv–00038 (E.D.Tex.), the Panel severed and
remanded “[t]he medical negligence claims against
healthcare provider defendants.” 2 Conditional Transfer
Order at 2, Dkt. 1:09–hc–60020–JGC, # 46–2.
2

The JPML remanded Jolly's medical negligence claim
to the Eastern District of Texas, not the state court
of Texas; nonetheless, its decision still supports
my finding that the Healthcare Defendants are
dispensable.

I, therefore, find the Healthcare Defendants to be
dispensable parties, sever them from the claims against
Baxter, and in doing so, perfect diversity jurisdiction over
Baxter.

Because Rule 21 applies to properly joined parties,
however, my conclusion regarding the dispensability of
the Healthcare Defendants is determinative. See Newman–
Green, Inc., supra, 490 U.S. at 832, 109 S.Ct. 2218; Safeco
Ins. Co., supra, 36 F.3d at 545; Williams, supra, Docket
No. 03–8030; Moore's Federal Practice § 21.05 at 21–
25 (“Despite its title, ‘Misjoinder and Nonjoinder of
Parties,’ the courts agree that the Rule may apply even
in the absence of misjoinder or nonjoinder. For example,
the Supreme Court has recognized the use of Rule 21
to dismiss a properly joined party for the purpose of
maintaining diversity of citizenship.”).
As such, I have no need to opine on the doctrine's viability
or decide whether the Healthcare Defendants were
fraudulently misjoined to determine whether diversity
jurisdiction exists.

2. Federal Question Jurisdiction
B. Rule 21: Fraudulent Misjoinder Doctrine
[9] Baxter also argues that under Rule 21, I may dismiss
and remand the claims against the nondiverse Healthcare
Defendants because they were fraudulently misjoined. 3
See, e.g., Tapscott v. MS Dealer Serv. Corp., 77 F.3d
1353, 1360 (11th Cir.1996), abrogated on other grounds.
“Fraudulent misjoinder occurs when a plaintiff attempts
to defeat removal by misjoining the unrelated claims of
non-diverse party plaintiffs against a defendant, or ... by
misjoining unrelated claims of a plaintiff against nondiverse party defendants.” Geffen v. General Electric Co.,
575 F.Supp.2d 865, 869–72 (N.D.Ohio 2008).
3

As explained in Geffen v. General Electric Co., 575
F.Supp.2d 865, 869 (N.D.Ohio 2008), courts refer
to this doctrine by a number of names. Baxter
contended that the “medical provider defendants
[were] misjoined” [Doc. 31] and that the claims were
“fraudulently ‘misjoined.’ ” [Doc. 13].

Many courts criticize the fraudulent misjoinder doctrine.
See id. Due to this criticism, a recent case in the Northern
District of Ohio declined to apply the “fraudulent
misjoinder” doctrine. See id. at 869–70 (noting, also,
that the Sixth Circuit has yet to adopt the “fraudulent
misjoinder doctrine”).

According to 28 U.S.C. § 1331, “the district courts shall
have original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United States.”
[10]
Baxter also contends that federal question
jurisdiction exists because the Josephs' claims squarely
challenge determinations made by the Food and Drug
Administration [“FDA”] and the adequacy of federal
requirements governing the manufacture *875 and sale
of prescription drugs. 4 I disagree.
4

It appears that Baxter has abandoned this theory of
jurisdiction as its most recent brief [Doc. 31] focuses
exclusively on diversity jurisdiction.

In Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804,
812, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986), the Supreme
Court held that congressional failure to provide a private
cause of action in the Food, Drug and Cosmetic Act
[“FDCA”] indicated that alleging an FDCA violation as
an element of a state-law claim did not raise a federal issue
worthy of federal question jurisdiction.
Relying on Merrell Dow, I recently rejected Baxter's
argument in another MDL case, Arnold v. Baxter
Healthcare Corp., 609 F.Supp.2d 712, 719 (N.D.Ohio
2009). In Arnold, I found that “[f]ederal question
jurisdiction cannot lie over the Arnolds' state-law claims

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Joseph v. Baxter Intern. Inc., 614 F.Supp.2d 868 (2009)

since they do not necessarily raise federal law issues,
no federal issues involved are actually disputed or
substantial and granting jurisdiction would abrogate
the congressionally approved balance between state and
federal judiciaries with regard to cases and claims of
this sort.” Id. For the same reasons detailed in Arnold,
I conclude that the Josephs' allegations do not establish
federal question jurisdiction.
I, nonetheless, find complete diversity jurisdiction by
severing and remanding the Josephs' claims against the
nondiverse Healthcare Defendants without prejudice.

Conclusion
For the foregoing reasons, it is hereby:

End of Document

ORDERED THAT
1. Plaintiffs' motion to remand [Doc. 7] be, and the
same hereby is denied, except as to the claims against
the Healthcare Defendants which are severed and
remanded without prejudice;
2. Defendant's motion to stay [Doc. 9] be, and the same
hereby is overruled as moot; and
3. Plaintiffs' request for attorney's fees be, and the same
hereby is denied.
So ordered.

All Citations
614 F.Supp.2d 868

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