BURTON v. MERCK & CO., INC. et al

Filing 21

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE HARVEY BARTLE, III ON 5/26/17. 5/26/17 ENTERED AND COPIES E-MAILED.(mbh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JORJA BENTLEY
v.
MERCK & CO., INC., et al.
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ROY HAGER
v.
MERCK & CO., INC., et al.
_____________________________
PHILLIP DIVERGIGELIS
v.
MERCK & CO., INC., et al.
_____________________________
RONALD BURTON
v.
MERCK & CO., INC., et al.
_____________________________
STEPHEN TSOPANIS
v.
MERCK & CO., INC., et al.
_____________________________
WANDA YOUNG
v.
MERCK & CO., INC., et al.
_____________________________

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CIVIL ACTION

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CIVIL ACTION

NO. 17-1122
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NO. 17-1331
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NO. 17-1333
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NO. 17-1334
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NO. 17-1335
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NO. 17-1336
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DOROTHY SPEARS
v.
MERCK & CO., INC., et al.
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VICKI LING
v.
MERCK & CO., INC., et al.
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DARLENE HARRIS
v.
MERCK & CO., INC., et al.
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ELIZABETH BANJACK
v.
MERCK & CO., INC., et al.
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CIVIL ACTION

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CIVIL ACTION

NO. 17-1337
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NO. 17-1338
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NO. 17-1339
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NO. 17-1340
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MEMORANDUM
Bartle, J.

May 26, 2017
Plaintiffs from various states originally filed these

ten separate lawsuits against defendants Merck & Co., Inc.,
Merck Sharp & Dome, Inc. (collectively “Merck”), and Ann
Redfield, an employee of Merck, in the Court of Common Pleas of
Philadelphia County.

The cases all allege that the plaintiffs

were treated with Merck’s drug Zostavax, which is designed to
prevent shingles, and that they suffered various injuries or

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illnesses as a result.

All claims for relief are grounded in

state law.
I.
The defendants timely removed all ten lawsuits to this
court pursuant to 28 U.S.C. § 1441(b), and plaintiffs have now
moved to remand them to the state court.
§ 1447(c).

See 28 U.S.C.

Defendants maintain that diversity of citizenship

exists and the requisite amount in controversy is satisfied as
mandated under 28 U.S.C. § 1332(a)(1).

Merck and its subsidiary

are deemed to be citizens of New Jersey since they are
incorporated and have their principal places of business in that
state.

See 28 U.S.C. § 1332(c).

The defendant Redfield is a

citizen of Pennsylvania.
In eight of the actions, plaintiffs are citizens of
Pennsylvania.

In the ordinary course, this would leave the

court without subject matter jurisdiction since complete
diversity of citizenship between plaintiffs and defendants is
lacking.

Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365,

373-74 (1978).

The defendants counter that Redfield was

fraudulently joined and thus must be dismissed as a party.
In the two other cases, Bentley and Young, the
plaintiffs are citizens of Nevada and Missouri, respectively.
Here complete diversity exists even with Redfield as a
defendant.

Plaintiffs argue, however, that these two cases were
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improperly removed because removal of an action where one of the
defendants is a citizen of the forum state is not permitted.
See 28 U.S.C. § 1441(b)(2).

Defendants again argue fraudulent

joinder and also invoke the exception that removal is proper if
it occurs before the in-state defendant is served with the
complaint.

See Valido-Shade v. Wyeth, LLC, 815 F. Supp. 2d 474

(E.D. Pa. 2012)
II.
The burden is on the defendants to establish
fraudulent joinder.

Wilson v. Republic Iron & Steel Co.,

257 U.S. 92, 97 (1921).

While we “must resolve all contested

issues of substantive fact in favor of plaintiff,” we do not
take this to mean we must blindly accept whatever plaintiffs
must say no matter how incredible or how contrary to the
overwhelming weight of the evidence.

Boyer v. Snap-on Tools

Corp., 913 F.2d 108, 111 (3d Cir. 1990).

We are also cognizant

that the removal statute must be construed narrowly, and “all
doubts should be resolved in favor of remand.”

Steel Valley

Auth. v. Union Switch and Signal Div., 809 F.2d 1006, 1010,
(3d Cir. 1987).

Nonetheless, we are mindful of the Supreme

Court’s decision in Wilson.

The Court held that if a defendant

asserts in its removal papers that joinder of another defendant
was a sham to defeat removal, the District Court must determine
the facts on this issue.

Wilson, 257 U.S. at 98.
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Our Court of Appeals on at least three occasions has
declared that fraudulent joinder exists if “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 defendant or seek a
joint judgment.

(Emphasis added).

Boyer, 913 F.2d at 111;

In re Briscoe, 448 F.3d 201, 216 (3d Cir. 2006); Abels v. State
Farm Fire & Cas. Co., 770 F.2d 26, 32 (3d Cir. 1985).
In their Notices of Removal, defendants assert that
plaintiffs have no real intention in good faith to prosecute the
actions against Redfield.

In support, defendants cite in their

Notices a court approved stipulation that had occurred in Juday
v. Merck Co., Inc, No. 16-1547 (E.D. Pa. filed April 5, 2016),
which had been filed in this court prior to the present cases.
Juday, like these other cases, alleged personal injuries as a
result of Merck’s shingles vaccine and named Redfield as a
defendant.

After defendants filed a motion to dismiss Count VI

of the Complaint in Juday, the only count against her, the
plaintiffs and defendants entered into a stipulation dismissing
with prejudice “all claims asserted against defendant Redfield.”
The court approved the Stipulation on August 10, 2016.

The

claims in Juday against Redfield were no different than the
claims against her in these ten pending cases.

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Significantly,

the plaintiffs’ attorney in Juday was the same attorney
representing all of the plaintiffs here.
In their motions to remand, the plaintiffs are silent
with respect to the agreement in Juday to dismiss the claims
against Redfield.

The attorneys for plaintiffs do not say why

they entered into a stipulation of dismissal in Juday but not in
the other cases.

We note that in Juday, which was initially

filed in the federal court, the presence of Redfield, a
Pennsylvania citizen, would not defeat this court’s diversity
jurisdiction since the plaintiffs were citizens of Indiana.
Thus, her dismissal had no effect on federal subject matter
jurisdiction.

In contrast, if plaintiffs’ arguments against

fraudulent joinder and against removal of cases with an in-state
defendant are correct, her continued presence as a defendant in
these ten cases would require remand.
Plaintiffs without question allege serious injuries
and are seeking significant damages. 1

For example, according to

her complaint, plaintiff Jorja Bentley suffers “from injuries to
her right eye, elevated blood pressure, headaches and dizziness”
as well as “mental and emotional distress.”

Another complaint,

1. All parties agree that the damages sought in each of these
cases exceed $150,000, exclusive of interest and costs.
Otherwise, they would be submitted initially to the court’s
arbitration program for resolution. See Local Rules of Civil
Procedure for the Eastern District of Pennsylvania, Rule 53.2.
Thus, plaintiffs at a minimum are seeking in total in excess of
$1,500,000 in these ten cases.
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that of Roy Hager, alleges that he suffered “from post-herpetic
neuralgia and will continue to suffer nerve damage” as well as
“pain and suffering” and “mental anguish.”

The court can take

judicial notice that Merck billions of dollars in assets so that
the need to sue and secure judgments against Redfield has no
apparent explanation except as an effort to avoid diversity
jurisdiction.
We find that the only reason plaintiffs have joined
Redfield as a defendant is to defeat this court’s subject matter
jurisdiction and that they have no real intention in good faith
to prosecute these actions against her to judgment.

We reach

this compelling finding in light of the stipulation of dismissal
of Redfield in Juday and the plaintiffs’ retention of Redfield
in the other similar cases where the same counsel represents all
the plaintiffs.

Plaintiffs’ attorney conceded this

inconsistency at oral argument and offered no explanation for it
other than that the dismissal of Redfield in Juday would not
affect this court’s jurisdiction.

He also stated candidly in

answer to a question from the court that plaintiffs have no
intention of pursuing judgments against Redfield in light of the
presence of Merck. 2

In sum, defendants have met their heavy

burden to establish that the joinder of Redfield as a defendant
2. Plaintiffs’ attorney also stated that he wants to take the
deposition of Redfield. This can be done in due course without
her being a party.
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was a sham designed to defeat this court’s subject matter
jurisdiction.

See In re Diet Drugs Product Liability Lit., 220

F. Supp. 2d 414, 420-22 (E.D. Pa. 2002).

Both the Supreme Court

and our Court of Appeals have made it plain that joinder under
such circumstances is improper and cannot be used to undermine
this court’s power to adjudicate an action where diversity of
citizenship between or among the parties and the requisite
amount in controversy otherwise exists, as they do here.
III.
In sum, we have found that Redfield was fraudulently
joined as a defendant because plaintiffs have no real intention
in good faith to prosecute these ten actions against her to seek
a joint judgment.

Accordingly, we need not reach the additional

arguments raised by defendants to sustain removal or consider
the plaintiffs’ arguments about an in-state defendant in support
of remand.
The motion of plaintiffs to remand these actions to
the Court of Common Pleas of Philadelphia County will be denied,
and the complaints as to defendant Ann Redfield will be
dismissed.

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