D.B. et al v. PFIZER INC et al

Filing 3

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE CYNTHIA M. RUFE ON 6/20/2017. 6/20/2017 ENTERED AND COPIES E-MAILED TO LIAISON COUNSEL. (SEE PAPER # 1639 IN 12-MD-2342) (ems)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
____________________________________
IN RE: ZOLOFT (SERTRALINE
:
MDL NO. 2342
HYDROCHLORIDE) PRODUCTS
:
12-MD-2342
LIABILITY LITIGATION
:
________________________________
:
HON. CYNTHIA M. RUFE
:
THIS DOCUMENT RELATES TO:
:
:
D.B. v. Pfizer, Inc., et al.
:
Civil Action No. 16-1438
____________________________________:
MEMORANDUM OPINION
Rufe, J.

June 20, 2017

Plaintiffs brought suit against Pfizer, Inc., Pfizer International LLC, J.B. Roerig & Co.
and Greenstone LLC (collectively, “Pfizer”) and McKesson Inc., alleging numerous state-law
claims, including failure to warn, negligence, and fraudulent concealment. Plaintiffs filed the
action in California state court, Defendants removed it to federal court on the basis of diversity
jurisdiction, and the case was transferred to this Court as part of the Zoloft Multidistrict
Litigation (“MDL”).
Plaintiffs have moved to remand the matter to California state court for lack of diversity
jurisdiction, as Plaintiffs are California citizens and Defendant McKesson is a California
corporation. Defendants argue that the lone California defendant, McKesson, is fraudulently
joined and therefore complete diversity exists between the parties. This Court has considered the
issue before, in both the Avandia and Zoloft MDLs. Consistent with those earlier decisions, the
Court holds that Plaintiffs have pled sufficient facts to assert a claim against McKesson,1 but that
the history of the Zoloft litigation shows that Plaintiffs have no real intention to pursue claims

1

See In re Zoloft (Sertraline Hydrochloride) Prod. Liab. Litig., No. 12-3122, 2013 WL 6050627 (E.D. Pa.
Nov. 14, 2013); In re Avandia Mktg., Sales Practices & Prod. Liab. Litig., 624 F. Supp. 2d 396 (E.D. Pa. 2009).

against McKesson, such that McKesson was fraudulently joined.2 Therefore, Plaintiffs’ motion
to remand will be denied.
I.

BACKGROUND
Plaintiff D.B. was born in 2014 with a serious birth defect allegedly caused by Zoloft

taken during pregnancy by his mother, Plaintiff Julie Parmley.3 Plaintiffs allege Defendants
aggressively marketed and sold Zoloft to pregnant women despite evidence that Zoloft increased
the risk for birth defects, without informing doctors or consumers of these risks.4 The only
specific allegations related to McKesson state that McKesson is a Delaware corporation
headquartered in California, and “at all times relevant hereto, Defendant McKesson was engaged
in the business of researching, designing, developing, licensing, compounding, testing,
producing, manufacturing, assembling, processing, packaging, inspecting, labeling, supplying,
distributing, selling and/or warranting Zoloft…. Plaintiffs are informed and believe Defendant
McKesson distributed the Zoloft that was dispensed to [Parmley].”5 Plaintiffs also allege that,
according to Pfizer’s website, McKesson was the single largest distributor of Pfizer’s
pharmaceutical products.6
II.

LEGAL STANDARD
Removal of a civil action from state to federal court is governed by 28 U.S.C. § 1441.

The removal statutes “are to be strictly construed against removal and all doubts should be
resolved in favor of remand.”7 The party removing the case has the burden to prove that federal

2

In re Avandia, No. 07-md-1871, 2014 WL 2011597, at *3 (E.D. Pa. May 15, 2014).
Id. ¶¶ 2, 48.
4
Id.
5
Id. ¶ 12.
6
Id. ¶ 13.
7
Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990) (internal quotation marks and
citation omitted).
3

2

jurisdiction is proper at all stages of the litigation.8 As is relevant here, Defendants may only
“remove an action on the basis of diversity of citizenship if there is complete diversity between
all named plaintiffs and all named defendants, and no defendant is a citizen of the forum State.”9
III.

DISCUSSION
Plaintiffs argue that remand is proper because there is incomplete diversity between the

Plaintiffs and all named Defendants.10 Defendants argue that McKesson is fraudulently joined
and therefore should not be considered in any diversity jurisdiction analysis and that, without
McKesson, diversity jurisdiction is properly invoked. Defendants therefore seek to “establish
that the non-diverse defendant[] [was] ‘fraudulently’ named or joined solely to defeat diversity
jurisdiction.”11
In order to establish fraudulent joinder, a defendant must prove that “there is no
reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or
no real intention in good faith to prosecute the action against the defendants or seek a joint
judgment.”12 A claim is colorable if it is not “wholly insubstantial and frivolous” in light of the
relevant law.13 With respect to a claim's factual basis, a “limited piercing of the allegations to
discover fraudulent joinder” may be appropriate.14 The limitation is significant, however, with
the permissible inquiry being less probing than the review a district court conducts in deciding a
motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).15
8

See Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004).
Lincoln Property Co. v. Roche, 546 U.S. 81, 84 (2005); see also 28 U.S.C. §§ 1332, 1441(b).
10
Plaintiffs also argue for remand on the basis of the forum defendant rule, which prohibits parties from
removing a case to federal court when the original action is filed in that defendant’s home state. See 28 U.S.C.
§ 1441(b). This argument does not alter the inquiry on the dispositive question of whether McKesson was
fraudulently joined, as McKesson is the only named forum defendant.
11
In re Briscoe, 448 F.3d 201, 216 (3d Cir. 2006).
12
Boyer, 913 F.2d at 111 (internal quotation marks and citation omitted).
13
Batoff v. State Farm Ins. Co., 977 F.2d 848, 852 (3d Cir. 1992) (internal quotation marks and citation
omitted).
14
Boyer, 913 F.2d at 112.
15
Batoff, 977 F.2d at 852.
9

3

Moreover, “if there is even a possibility that a state court would find that the complaint states a
cause of action against any one of the resident defendants, the federal court must find that joinder
was proper and remand the case to state court.”16 A plaintiff’s alleged failure to adequately
plead a viable cause of action against a defendant must be “obvious according to the settled rules
of the state.”17 The heavy burden of demonstrating that a defendant was fraudulently joined rests
with the defendant making the charge.18 When evaluating a charge of fraudulent joinder, the
“district court must resolve all contested issues of substantive fact” and “any uncertainties as to
the current state of controlling substantive law in favor of the plaintiff.”19
Defendants first argue that Plaintiffs’ Complaint lacks specific allegations necessary to
assert a claim against McKesson. The Court has explored, and rejected, this argument in the
Avandia MDL, which included numerous motions to remand individual cases involving
McKesson to California state court, and where the Court held that similar allegations against
McKesson satisfied California’s permissive pleading standard for the asserted failure to warn and
strict product liability claims.20 Thus, the Court finds the allegations sufficient for purposes of
this motion.
Defendants’ next argument extends from the first: that the absence of specific allegations
against McKesson in Plaintiffs’ Complaint demonstrates a lack of good faith intent to pursue
their claims against McKesson, and that the Court should find fraudulent joinder on that basis.
However, as with Avandia, the Court finds that the facts pleaded are not implausible—it is
possible that McKesson distributed Zoloft which ended up being consumed by Plaintiffs.
Further, Plaintiffs’ Complaint is not fatally inconsistent as it alleges a vague but plausible causal
16

Boyer, 913 F.2d at 111 (internal quotation marks and citation omitted).
Id. at 112 (internal quotation marks and citation omitted).
18
Id. at 111.
19
Id.
20
In re Avandia, 624 F. Supp. 2d 396, 417-18 (E.D. Pa. 2009).
17

4

chain of events that could expose McKesson to liability. The general allegations do not, by
themselves, indicate a lack of good faith on the part of Plaintiffs’ to pursue claims against
McKesson.21
However, the Court finds merit in Defendants’ contention that the generalized allegations
and the history of the Zoloft litigation together demonstrate that Plaintiffs have no intention to
pursue their claims against McKesson. Defendants assert that Zoloft plaintiffs, including others
represented by Plaintiffs’ counsel here, have regularly failed to propound discovery on
McKesson and often have voluntarily dismissed McKesson as a named defendant.
The Court considered a similar situation in the Avandia MDL, where the Court examined the
history of the litigation and found that although the Avandia litigation had been ongoing for five
years, and general discovery was completed in the state and federal matters, the plaintiffs’
counsel had not sought discovery from McKesson and could offer no good explanation why it
had not. The Court thus concluded that McKesson had been fraudulently joined by the
California plaintiffs.22
Here, the circumstances also evince no intent on the part of the plaintiffs to pursue claims
against McKesson. As was the case in Avandia, the Court has been made aware of no instance in
which any of the numerous Zoloft plaintiffs have propounded meaningful discovery on
McKesson in either state or federal court, even though some cases have gone to trial. This
failure to seek discovery includes other cases brought by Plaintiffs’ counsel.23 The lack of
discovery requests directed towards McKesson casts doubt on Plaintiffs’ intent to pursue claims
against McKesson.

21

Id. at 418 (quoting Boyer, 913 F.2d at 112).
In re Avandia, MDL No. 1871, 2014 WL 2011597, at *3 (E.D. Pa. May 15, 2014).
23
See, e.g., Orepeza v. Pfizer Inc., et al., JCCP 4771, Super. Ct. Riverside Cty., Civ. No. RIC1407784;
Herbert v. Pfizer Inc., et al., JCCP 4771, Super. Ct. of Orange Cty., Civ. No. 30-2014-00738942.
22

5

Even more significantly, the plaintiffs in numerous Zoloft cases have dismissed claims
against McKesson both before24 and after25 the Court granted summary judgment in favor of
Pfizer and another Defendant and the plaintiffs appealed to the Third Circuit.26 One of these
cases had been filed by Plaintiffs’ counsel in this case.27
Upon careful consideration of all relevant circumstances, the Court concludes that the
naming of McKesson does not bar diversity jurisdiction based on the general allegations against
McKesson in the Complaint, in conjunction with the lack of any discovery against McKesson in
Zoloft cases. Plaintiffs make no real attempt to distinguish the Avandia cases where the Court
found fraudulent joinder. Instead, they simply state that the Federal Rules of Civil Procedure
contemplate no discovery standard to establish whether a party is properly joined. But this brief
argument fails to consider the larger context of the Zoloft litigation. Hundreds of Zoloft cases
have proceeded in federal and state court, and numerous plaintiffs, including those represented
by Plaintiffs’ counsel, have had the opportunity to prosecute claims against McKesson and failed
to do so. This is certainly relevant information for the Court to consider when examining the
intent of the Plaintiffs in this case.
In sum, Plaintiffs here have asserted non-specific claims against McKesson, Plaintiffs’
counsel has in separate Zoloft actions failed to propound discovery on McKesson, and, most
notably, Plaintiffs’ counsel has outright dismissed McKesson as a defendant in other state and
federal Zoloft cases. The Court thus concludes that Plaintiffs lack good faith intent to prosecute
their claims against McKesson. The Court finds McKesson to be fraudulently joined in this
24

See, e.g., Civil Action Nos. 12-2793, 12-2794, 12-2795, 12-2796, 12-2797 (E.D. Pa.).
See Civil Action Nos. 13-3234, 13-6162, 13-7375, and 15-3290 (E.D. Pa.).
26
The Court’s grant of summary judgment recently was affirmed by the Third Circuit. In re Zoloft, No. 162247, --- F.3d ---, 2017 WL 2385279 (3d Cir. June 2, 2017).
27
C.A. v. Pfizer, Civil Action No. 13-7375. Plaintiffs’ counsel has also submitted similar
stipulations or motions to dismiss McKesson as a defendant in a state court Zoloft case. See Herbert, JCCP
4771, Super Ct. of Orange Cty., Civ. No. 30-2014-00738942, at Doc. No. 28.
25

6

action, and therefore does not take McKesson into account during its diversity jurisdiction
analysis. Without McKesson, there is complete diversity between Plaintiffs and Defendants, and
no dispute that the amount in controversy exceeds $75,000. The Court thus has jurisdiction over
this case.28
IV.

CONCLUSION
This Court has subject matter jurisdiction over this case pursuant to § 1332. Plaintiffs’

motion to remand is denied. An order will be entered.

28

Because the Court concludes that McKesson was fraudulently joined on the basis that Plaintiffs have not
evinced an intent to litigate against McKesson, the Court need not reach Defendants’ arguments that California law
bars Plaintiffs’ claims under the learned intermediary doctrine and that the claims against McKesson are preempted
under federal law. As Defendants concede, this Court has rejected the argument relating to the learned intermediary
doctrine in a previous Zoloft case. See In re Zoloft, Civ. No. 12-211, 2014 WL 2445790, at *2 (E.D. Pa. May 29,
2014), and the Court declines to revisit that ruling. Similarly, the Court previously has held that the claims against
McKesson are not preempted by federal law, as “[a] preemption defense goes to the merits of a plaintiff’s case and
does not overcome the strong presumption against removal jurisdiction.” In re Zoloft, Civ. No. 12-3122, 2013 WL
6050627, at *2 (E.D. Pa. Nov. 14, 2013). Although Defendants argue that developments in the case law surrounding
federal preemption have made their argument ripe for reexamination, the Court finds that the cases cited—PLIVA,
Inc. v. Mensing, 564 U.S. 604 (2011) and Mutual Pharmaceutical Co., Inc. v. Bartlett, 133 S. Ct. 2466 (2014)—
“merely provide[] a framework for the state court to adjudicate Plaintiffs’ claim; [they are] not a hook that
lands…cases in federal court.” Hughes v. Mylan, Inc., Civ. Nos. 11-5543, et al., 2011 WL 5075133, at *6 (E.D. Pa.
Oct. 25, 2011).

7