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 5

City of Huntington v. AmerisourceBergen Drug Corporation, Slip Copy (2017)
2017 WL 3317300

2017 WL 3317300
Only the Westlaw citation is currently available.
United States District Court,
S.D. West Virginia,
at Huntington.
The CITY OF HUNTINGTON, Plaintiff,
v.
AMERISOURCEBERGEN DRUG CORPORATION,
Cardinal Health Inc., and McKesson Corporation,
Gregory Donald Chaney, M.D., Defendants.
CIVIL ACTION NO. 3:17-01362
|
Signed 08/03/2017

against Dr. Gregory Donald Chaney, this action, insofar
as it relates to Dr. Chaney, is dismissed without prejudice.
The Clerk is directed to send copies of this Memorandum
Opinion and Order to counsel of record, unrepresented
parties, and to the Circuit Court of Cabell County, West
Virginia.
IT IS SO ORDERED this 3rd day of August, 2017.

EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST
VIRGINIA

Attorneys and Law Firms

AT BLUEFIELD

Charles R. Webb, The Webb Law Centre, Charleston,
WV, for Plaintiff.

THE COUNTY COMMISSION OF MCDOWELL
COUNTY,

A.L. Emch, Adam J. Schwendeman, Jackson Kelly,
Robert H. Akers, Susan M. Robinson, Thomas Combs
& Spann, Jeffrey M. Wakefield, Flaherty Sensabaugh &
Bonasso, Charleston, WV, Eric W. Sitarchuk, Meredith
S. Auten, Morgan Lewis & Bockius, Philadelphia, PA,
Elizabeth P. Kessler, Jones Day, Columbus, OH, Enu
Mainigi, F. Lane Heard, III, Steven M. Pyser, Williams
& Connolly, Geoffrey Edward Hobart, Matthew Michael
Benov, Covington & Burling, Washington, DC, James R.
Wooley, Jones Day, Cleveland, OH, for Defendants.

Plaintiff,

MEMORANDUM OPINION AND ORDER
David A. Faber, Senior United States District Judge
*1 The court has considered defendants' Motion to
Remand filed on March 15, 2017, and all matters of record
relevant thereto and finds no material difference between
this case and The County Commission of McDowell
County v. McKesson Corporation, et al., Civil Action No.
1:17-000946, also pending in this court.
Accordingly, for the reasons set out in this court's opinion
in that case, dated July 3, 2017, a copy of which, labeled
“Exhibit A” is attached hereto, filed herewith and made
a part hereof, plaintiff's Motion to Remand is DENIED.
Since the court lacks jurisdiction over plaintiff's claims

v.
MCKESSON CORPORATION, et al.,
Defendants.
CIVIL ACTION NO. 1:17-00946
MEMORANDUM OPINION AND ORDER
This civil action was filed in the Circuit Court of
McDowell County, West Virginia, and removed to this
court by the defendants who maintain that this court has
diversity of citizenship jurisdiction. The plaintiff has filed
a motion to remand that is now before the court for
decision. (ECF No. 26). For reasons discussed below, the
motion to remand is DENIED.

I. Statement of the Case
The nation, in general, and West Virginia, in particular,
are experiencing an acute epidemic of drug use and related
social problems caused by a flood of opioid pills. 1 The
problem is especially acute in Southern West Virginia,
including McDowell County. The governing body of

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City of Huntington v. AmerisourceBergen Drug Corporation, Slip Copy (2017)
2017 WL 3317300

McDowell County, the County Commission, filed this
civil action in the Circuit Court of McDowell County
and named as defendants three corporate distributors of
opiates: McKesson Corporation, AmerisourceBergen and
Cardinal Health. All three are citizens and residents of
states other than West Virginia. Named as an additional
defendant is Dr. Harold Anthony Cofer, Jr., a citizen
and resident of West Virginia. Defendants, in their notice
of removal, assert that Dr. Cofer has been joined, in
this action, solely for the purpose of defeating federal
jurisdiction.
1

For an excellent history and analysis of the problem
see Sam Quinones, Dreamland: The True Tale of
America's Opiate Epidemic (2015).

Plaintiff charges that the corporate defendants knowingly
flooded McDowell County with opioids well beyond what
was necessary to address pain and other reasons residents
of the county could legitimately use the drugs. Dr. Cofer,
it is charged, provided written opioid prescriptions for
patients, knowing that the drugs were likely to be abused,
diverted or misused. The county seeks to recover damages
to compensate it for sums it has expended and will be
forced to expend responding to social problems caused by
the opioid epidemic.

II. Discussion
A. Diversity Jurisdiction and the Possibility of
Prejudice
28 U.S.C. § 1332 confers federal jurisdiction over civil
actions when the amount in controversy exceeds $75,000
and there is complete diversity among all plaintiffs and
all defendants. The rule of complete diversity appears
nowhere in the statute; it stems from the opinion of Chief
Justice Marshall in Strawbridge v. Custiss, 7 U.S. (3
Cranch) 267 (1806). 28 U.S.C. § 1441 permits a defendant
to remove to federal court from state court any action over
which the federal court would have original jurisdiction.
*2 Diversity jurisdiction has been part of federal law
since the First Judiciary Act of 1789, but it has always
been a subject of controversy. In Bank of United States v.
Deveaux, 5 Cranch 61, 87 (1809), Chief Justice Marshall
alluded to “apprehensions” that state courts would engage
in local prejudice against out of state litigants. The
possibility of such prejudice is usually offered as the
rationale for diversity jurisdiction although other, more

circumspect, reasons such as the desire to protect creditors
from state legislation favorable to debtors, have been
offered. See Henry J. Friendly, The Historic Basis of
Diversity Jurisdiction, 41 Harv. L. Rev. 483, 495-97
(1928). In the early days of the republic, at least in
Virginia, prejudice was palpable. The state courts there
were notoriously hostile to foreign merchants. Claims
were submitted to juries and the juries were given wide
latitude to assess the merits of the case and award
damages. In cases where the plaintiff was able to recover
a favorable verdict on his principal claim, juries were still
permitted to deny interest on the debt, which they often
did. The inability to recover interest meant to the plaintiff,
in many cases, the difference between a profit and a loss
on his bargain. 2
2

F. Thornton Miller, Juries and Judges Versus
the Law: Virginia's Provincial Legal Perspective,
1783-1828, at 34-37 (1994).

In recent times, crowded federal dockets, a dearth of
evidence showing the existence of state court prejudice,
and continuing doubts about the utility of diversity
jurisdiction have pushed federal courts in the direction of
limiting it. Nevertheless, Congress has created diversity
jurisdiction and a litigant whose case comes within it has
a right to be in federal court. As the Supreme Court has
said: “[T]he Federal courts may and should take such
action as will defeat attempts to wrongfully deprive parties
entitled to sue in the Federal courts of the protection of
their rights in those tribunals.” In re Lipitor (Atorvastatin
Calcium) Mktg., Sales Practices and Prods. Liab. Litig.,
2016 WL 7339811 at *3 fn.4 (D.S.C. Oct. 24, 2016)
(quoting Alabama Great S. Ry. Co. v. Thompson, 200
U.S. 206, 218 (1906)). Therefore, if diversity jurisdiction
is to be assigned to oblivion, it is Congress, not the courts
who should send it there. Here, where the opioid epidemic
is pervasive and egregious, there is at least a possibility of
prejudice to the defendants at the hands of a jury drawn
exclusively from the very county that is the plaintiff in this
suit. A federal jury casts a wider net and is drawn from a
division that comprises several counties. All may have an
opioid problem, but not one that is specific to the plaintiff
county.
Normally, the existence of diversity jurisdiction, or the
lack thereof, is to be determined from the face of the wellpleaded complaint. See Wyatt v. Charleston Area Med.
Ctr., 651 F. Supp. 2d 492, 496 (S.D.W. Va. 2009). Two
district doctrines, however, permit the court to disregard

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City of Huntington v. AmerisourceBergen Drug Corporation, Slip Copy (2017)
2017 WL 3317300

the citizenship of improperly joined parties. See In re
Lipitor, 2016 WL 7339811 at *1; Wyatt, 651 F. Supp.2d at
496. Judge Goodwin succinctly describes these doctrines
in Wyatt at page 496 as follows:
Fraudulent joinder and fraudulent
misjoinder are two distinct legal
doctrines that provide exceptions
to the well-pled complaint rule as
it applies to removal based on
diversity jurisdiction by allowing
courts to disregard the citizenship of
certain parties. Fraudulent joinder
is applicable where a defendant
seeking removal argues that other
defendants were joined when there is
no possible cause of action against
those defendants or where the
complaint pled fraudulent facts. See
Ashworth, 395 F. Supp.2d at 403.
Fraudulent misjoinder, on the other
hand, is an assertion that claims
against certain defendants, while
provable, have no real connection to
the claims against other defendants
in the same action and were only
included in order to defeat diversity
jurisdiction and removal. See id. at
409-10.
Wyatt, 651 F. Supp.2d at 496.

B. Fraudulent Joinder 3
3

Plaintiff contends that the removing defendants have
waived any argument that Dr. Cofer was fraudulently
joined by failing to include it in the Notice of
Removal. However, plaintiff's argument is without
merit because the Notice of Removal clearly alleges
that Dr. Cofer's
citizenship should be disregarded because he was
fraudulently joined solely to defeat diversity. See
Johnson v. Am. Towers, LLC, 781 F.3d 693, 704
(4th Cir. 2015) (“[T]he fraudulent joinder doctrine
‘effectively permits a district court to disregard, for
jurisdictional purposes, the citizenship of certain
non-diverse defendants, assume jurisdiction over
a case, dismiss the non-diverse defendants and
thereby retain jurisdiction.”)(quoting Mayes v.
Rapoport, 198 F.3d 457, 461 (4th Cir. 1999)).
“ ‘Fraudulent joinder’ is a term of art, [and] it

does not reflect on the integrity of plaintiff or
counsel....” AIDS Counseling & Testing Ctrs. v.
Grp. W. Television, Inc., 903 F.2d 1000, 1003 (4th
Cir. 1990).
Notice of Removal, at 3-4 (ECF No. 1). Furthermore,
the court finds that Woods v. Crane Co., 764 F.3d 316
(4th Cir. 2014), is distinguishable because defendants
herein are not asserting a completely new ground
for jurisdiction but, rather, are merely providing
additional reasons in support of their argument that
Dr. Cofer has been fraudulently joined in this case
and, therefore, diversity jurisdiction exists.

*3 The doctrine of fraudulent joinder is an exception to
the well-pleaded complaint rule. It requires the court to
disregard the citizenship of a party who is deemed to have
been fraudulently joined. In order to establish fraudulent
joinder in a particular case, a removing defendant must
show either (1) there is no possibility that the plaintiff can
establish a cause of action against the removing defendant,
or (2) that there has been outright fraud in plaintiff's
pleading of jurisdictional facts. See Marshall v. Manville
Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993); Ashworth v.
Albers Med., Inc., 395 F. Supp.2d 395, 402-03 (S.D.W.
Va. 2005).
Very few fraudulent joinder cases involve actual fraud.
Most turn upon the “no possibility of recovery” standard.
Courts have applied this rule in the extreme. If the plaintiff
demonstrates a mere “glimmer of hope” that its claim will
succeed, the jurisdictional inquiry must end and the case
be remanded. Hartley v. CSX Transp., Inc., 187 F.3d 422,
424-26 (4th Cir. 1999).
This is the rare case that fits the “no possibility of
recovery” rubric. West Virginia's Medical Professional
Liability Act (WVMPLA), West Virginia Code § 55-7B-6,
imposes a series of procedural prerequisites for filing a
medical malpractice claim. The plaintiff, in such a case,
is required, at least thirty days prior to filing suit, to
serve notice on the defendant of his intention to bring
suit. The notice must contain a “screening certificate of
merit” executed under oath by a qualified expert. If this
requirement is not met, the case must be dismissed. See
Stanley v. United States, 321 F. Supp.2d 805, 807-09
(N.D.W. Va. 2004). The recent decision of the United
States Court of Appeals for the Fifth Circuit in Flagg v.
Stryker Corp., 819 F.3d 132, 137-38 (5th Cir. 2016) (en
banc), is representative of several cases that hold such
prerequisites to malpractice suits are jurisdictional. See
also Robinson v. Mon, Civil Action No. 2:13-13686, 2014

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City of Huntington v. AmerisourceBergen Drug Corporation, Slip Copy (2017)
2017 WL 3317300

WL 4161965, *8 (S.D.W. Va. Aug. 19, 2014) (“The presuit notification and filing of a screening certificate of
merit is jurisdictional, and dismissal for failure to comply
is mandatory.”)
It is abundantly clear that the plaintiff failed to comply
with the requirements of W. Va. Code § 55-7B-6 before
joining Dr. Cofer in this civil action. The claim against Dr.
Cofer is one for medical malpractice in that he allegedly
“provided written opioid prescriptions for patients despite
knowing that the opioids were likely to be abused,
diverted or misused.” Complaint at ¶ 43. It can hardly
be questioned that writing prescriptions for controlled
medication are acts done within the context of rendering
health care services.
Accordingly, there is no possibility of recovery by the
plaintiff against Dr. Cofer in this civil action as it presently
stands. The fraudulent joinder doctrine applies and there
is federal diversity jurisdiction over plaintiff's claims
against the remaining defendants.

C. Fraudulent Misjoinder
Fraudulent joinder assumes that the claim against the
nondiverse defendant is sufficiently related to the claims
against the diverse defendant to have been properly joined
in the same lawsuit. Such is not the case with the related,
but distinct, doctrine of fraudulent misjoinder. Here, the
inquiry is whether claims against the diverse and nondiverse defendants are sufficiently related to be properly
joined in a single case.
Caselaw developing the fraudulent misjoinder doctrine
stems from Tapscott v. MS Dealer Serv. Corp., 77
F.3d 1353 (11th Cir. 1996). There, in a class action for
violations of Alabama law arising from the sale of service
contracts on automobiles, the court held that misjoinder
of a diverse defendant was so egregious as to amount
to fraudulent joinder. While the court did not expressly
adopt fraudulent misjoinder as a separate legal doctrine,
it rejected the argument, advanced by the plaintiff, that a
misjoinder, no matter how egregious, can never amount
to fraudulent joinder. 77 F.3d at 1360.
*4 Later, in In re Prempro Prods. Liab. Litig., 591 F.3d
613, 620 (8th Cir. 2010), a United States Court of Appeals
drew a distinction between fraudulent joinder and
fraudulent misjoinder and adopted fraudulent misjoinder
as a “somewhat different and novel exception to the

complete diversity rule....” The court observed that two
other circuits, the Fifth and the Ninth, had acknowledged
the rule without expressly adopting it. See id. fn.4 (citing
In re Benjamin Moore & Co., 309 F.3d 296, 630-31 (5th
Cir. 2002) and California Dump Truck Owners Ass'n v.
Cummins Engine Co., Inc., 24 Fed.Appx. 727, 729 (9th
Cir. 2001)).
The Fourth Circuit Court of Appeals has apparently
neither accepted nor rejected the doctrine, but a number
of district courts in our circuit have considered it. While
these courts have split on the issue, the weight of authority
accepts the doctrine. The cases are discussed in In re
Lipitor, supra. This court concludes that it should follow
the majority of these cases and apply the doctrine here.
Courts have held that propriety of joinder of the claims is
to be determined by state law. In West Virginia the rule
of civil procedure governing joinder is virtually identical
to the corresponding federal rule—the rules even bear the
same number, Rule 20. As a consequence, cases decided
under Federal Rule of Civil Procedure 20 are helpful
in deciding whether the claims at issue may be properly
joined together in a single suit. See State ex re. Energy
Corporation of America v. Marks, 774 S.E.2d 546, 550-51
(W. Va. 2015).
Under Federal Rule 20 and the corresponding West
Virginia rule, the claims, to be properly joined, must
(1) arise out of the same transaction or occurrence, and
(2) present a question of law or fact common to all
defendants. See Ashworth, 395 F. Supp.2d at 411; Marks,
774 S.E. 2d at 550.
Here, the removing defendants assert that the claims
against Dr. Cofer arise out of different transactions,
involve different evidence, and rest on different legal
theories than the claims against the diverse defendants.
This court agrees and concludes that the claims may not be
properly joined. Consequently, the fraudulent misjoinder
doctrine applies and compels denial of the motion to
remand.
The In re Lipitor case, supra, a fraudulent misjoinder case,
applied the same heightened standard that applies to a
case of fraudulent joinder. See In re Lipitor, 2016 WL
7339811, at *6. There, the court held that to establish
fraudulent misjoinder, the removing party was required to
show either outright fraud, or that there was no possibility

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4

City of Huntington v. AmerisourceBergen Drug Corporation, Slip Copy (2017)
2017 WL 3317300

that the plaintiff would be able to join the diverse and
non-diverse claims. See id. This court respectfully views
this approach as outside the mainstream of Fourth Circuit
jurisprudence and declines to follow it. As Judge Goodwin
observed in Wyatt, 651 F. Supp.2d at 496:
The prevailing standard is whether there is a
“reasonable possibility that a state court would find that
[the plaintiffs'] claims against [one set of defendants]
were properly joined with [the] claims against the other
defendants[.]”
The Wyatt case was a medical malpractice action against
health care providers and doctors for alleged negligence
in installing a medical device. The plaintiffs joined the
manufacturers of the device alleging negligence and strict
liability in its manufacture. The court concluded that the
claims arose out of the same occurrence—the plaintiff's
surgery “and the after effects of that surgery.” 651 F.
Supp.2d at 498.
*5 This case, in contrast to Wyatt, is more akin to
Hughes v. Sears, Roebuck and Co., Civil Action No. 2:09CV-93, 2009 WL 2877424 (N.D.W. Va. Sept. 3, 2009).
Hughes involved an injury on a treadmill. See id. at *1.
The plaintiff sued Icon, the manufacturer of the treadmill,
and Sears, from whom she bought the treadmill. See id.
Plaintiff claimed the treadmill malfunctioned, causing her
to lose her footing and be thrown off. See id. Later, the
same day, an emergency room physician, joined as a codefendant, allegedly misdiagnosed her injuries. See id.
Judge Bailey in Hughes distinguished Wyatt as follows:
The essence of the claims against
Sears and Icon arise from the design,
testing, manufacture and sale of
a consumer product from which
Ms. Hughes fell and eventually
sought treatment from Dr. Logar
who, then, allegedly provided a
misdiagnosis. Unlike the doctor in
Wyatt ..., Dr. Logar had no control
over the allegedly defective product.
Thus, here, there is no such bridge
to provide a persuasive argument
that the medical malpractice and
products liability claims arise
End of Document

out of the same transaction
or occurrence. Moreover, ... the
evidence supporting these claims will
be markedly different.
2009 WL 2877424 at *6.
In this case, the connection, if any, between the actions
of the corporate defendants, who allegedly flooded the
market with opioids, and Dr. Cofer, who prescribed some
of them, is far more attenuated than any connection
between the manufacturers and seller of the treadmill in
Hughes and the subsequent misdiagnosis by the treating
physician.

III. Conclusion
Since there is no possibility of recovery against Dr. Cofer
in this case, he has been fraudulently joined. Additionally,
the court finds no common questions of law or fact in
plaintiff's claims against the corporate defendants and
the claims against Dr. Cofer. The cases against each are
separate and distinct. Accordingly, Dr. Cofer has also
been fraudulently misjoined. The Motion to Remand is
therefore DENIED. Since the court lacks jurisdiction over
plaintiff's claims against Dr. Cofer, this action, insofar as
it relates to Dr. Cofer, is dismissed without prejudice.
The Clerk is directed to send copies of this Memorandum
Opinion and Order to counsel of record, unrepresented
parties, and to the Circuit Court of McDowell County.
IT IS SO ORDERED this 3rd day of July, 2017.
ENTER:
__________________
David A. Faber
Senior United States District Judge

All Citations
Slip Copy, 2017 WL 3317300

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© 2017 Thomson Reuters. No claim to original U.S. Government Works.

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