Scott v. Pfizer Pharmaceutical

Filing 9

REPORT AND RECOMMENDATIONS recommending 1 Complaint filed by Harril Glen Scott, be dismissed without prejudice for want of subject matter jurisdiction. Signed by Magistrate Judge Judith K. Guthrie on 08/05/11. cc:pltf 8-08-11(mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
HARRIL GLEN SCOTT

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v.

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PFIZER, INC., ET AL.

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CIVIL ACTION NO. 6:11cv276

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The Plaintiff Harril Scott, an inmate of the Texas Department of Criminal Justice,
Correctional Institutions Division proceeding pro se, filed this civil rights lawsuit under 42 U.S.C.
§1983 complaining of alleged violations of his constitutional rights. The lawsuit was referred to the
undersigned United States Magistrate Judge pursuant to 28 U.S.C. 636(b)(1) and (3) and the
Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States
Magistrate Judges. As Defendants, Scott names Pfizer Pharmaceutical Corp. and Dr. Duane Tisdale
of the Smith County Public Health Treatment Clinic.
Scott says that from November 5, 2003, to October 22, 2004, Dr. Tisdale prescribed him a
pain reliever called Bextra for arthritis. While taking the Bextra, he complained of depression, mood
changes, weight gain, nausea, and rapid heartbeat.
On September 30, 2004, he was arrested and taken to the Smith County Jail. He continued
to take the Bextra until October 22, 2004, and was told on November 23, 2004, that he would not
longer receive the Bextra.
Despite the fact that he was no longer taking the medication, Scott says that between
November of 2004 and January 19, 2005, his condition grew worse, with frequent and severe chest
pain, rapid heartbeat, dizziness, nausea, depression, and mood changes. On January 21, 2005, he
was taken to the emergency room with severe chest pains.
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In July of 2005, while in federal custody in Limestone County, he spent three weeks in the
infirmary because of chest pains. He was sent to the Texas Department of Criminal Justice,
Correctional Institutions Division in September of 2005. He suffered recurrent chest pains and an
EKG was run at the Gurney Unit on September 5, 2005. On September 14, 2005, he was transferred
to the Byrd Unit, where a doctor prescribed nitroglycerin. Another EKG was run and blood was
drawn for further testing. He was later told that he had an irregular heartbeat. In 2009, Scott says,
he learned that the Bextra had caused these symptoms, and that the medication had been taken off
the market.
In his causes of action, Scott asserts that the defendants were negligent in failing to give
warnings that Bextra could cause blood clots, heart attacks, or strokes, and by failing to warn either
him or Dr. Tisdale of the dangerous propensities of Bextra, as well as the type and severity of the
side effects. He says that Pfizer’s failure to communicate the level of risk inherent in Bextra gives
rise to liability under theories of strict liability, negligence, the Texas Deceptive Trade Practices Act,
breaches of express and implied warranties, fraud, and misrepresentation.
Legal Standards and Analysis
Federal trial and appellate courts have the duty to examine the basis for their subject matter
jurisdiction, doing so on their own motion if necessary. Torres v. Southern Peru Copper Corp., 113
F.3d 540, 542 (5th Cir. 1997); United States v. De Los Reyes, 842 F.2d 755, 757 (5th Cir. 1988).
The party asserting federal court jurisdiction has the burden of proving that it exists. People’s
National Bank v. Office of the Comptroller of the Currency of the U.S., 362 F.3d 333, 336 (5th Cir.
2004).
In this case, the claims presented by Scott do not show that federal jurisdiction exists, and
Scott has failed to meet his burden of proving that it does. A similar situation existed in the case of
Terry Lee Scott v. Pfizer, Inc., et al., 182 Fed.Appx. 312, 20061488842 (5th Cir., May 23, 2006).
In that case, the plaintiff Terry Scott, a federal prisoner in Beaumont, sued two corporations, the state
university’s medical branch, and physicians associated with the medical branch for products liability
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and medical malpractice in connection with two hip replacement surgeries which preceded his
incarceration. In affirming the dismissal of the case, the Fifth Circuit stated as follows:
Scott asserts that the district court erred in dismissing his claims against Pfizer and
MTG [Corporation] for lack of subject matter jurisdiction. As Scott and several of
the defendants were citizens of Texas, the district court did not have diversity
jurisdiction over Scott’s complaint. See Whalen v. Carter, 954 F.2d 1087, 1094 (5th
Cir. 1992). Scott’s assertion that he met the requirements for standing to bring his
complaint is irrelevant; the presence of standing does not create jurisdiction in the
absence of diversity or federal question jurisdiction. See Sierra Club v. Peterson, 185
F.3d 349, 362 n.15 (5th Cir. 1999) (noting that a party must establish both standing
and subject matter jurisdiction). Scott has not shown that the district court had
federal question jurisdiction under the Commerce Clause or because he was raising
product liability claims. See U.S. Constitution, Art. 1, sec. 8; People’s National
Bank v. Office of the Comptroller of the Currency of the U.S., 362 F.3d 333, 336
(5th Cir. 2004) (party asserting federal court jurisdiction has burden of proving that
it exists).
Terry Lee Scott v. Pfizer Inc., et al., 182 Fed.Appx. at 315.
In the present case, the plaintiff Harril Scott has likewise failed to show any basis for subject
matter jurisdiction. He and Dr. Tisdale are citizens of Texas, and so the district court lacks diversity
jurisdiction. 28 U.S.C. §1332; Stiftung v. Plains Marketing, L.P., 603 F.3d 295, 297 (5th Cir. 2010)
(noting that “a federal court cannot exercise diversity jurisdiction if one of the plaintiffs shares the
same citizenship as any one of the defendants.”). Product liability claims against pharmaceutical
companies are generally predicated upon diversity jurisdiction; there is no private cause of action
for damages under the Commerce Clause, see New Orleans & Gulf Coast Railway Co. v. Marinovich
Barrois, civil action no. A-06-0062, 2006 WL 2666303 (E.D.La., September 14, 2006), citing
Washington v. U.S. Tennis Ass’n, Inc., 290 F.Supp.2d 323, 329 (E.D.N.Y. 2003), nor under the
Federal Food, Drug, and Cosmetic Act. Merrill Dow Pharmaceuticals Inc. v. Thompson, 478 U.S.
804, 806-07 (1986). Because Scott has shown no basis for subject matter jurisdiction, his lawsuit
may be dismissed.
The Court notes that there is currently pending multi-district litigation concerning Bextra in
the Northern District of California, cause no. 3:05-md-1699. However, the Court need not consider
at this time whether the transfer of the present case to the Northern District of California would be
appropriate, inasmuch as federal subject matter jurisdiction is lacking.
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Conclusion
Rule 12(h)(3), Fed. R. Civ. P., provides that “if the court determines at any time that it lacks
subject matter jurisdiction, the court must dismiss the action.” In the present case, as in Terry Lee
Scott v. Pfizer, Inc., complete diversity of citizenship is not present and Scott has not shown any
other basis of federal jurisdiction, and so the Court lacks subject matter jurisdiction. Accordingly,
the lawsuit should be dismissed.
RECOMMENDATION
It is accordingly recommended that the above-styled civil rights lawsuit be dismissed without
prejudice for want of subject matter jurisdiction.
A party's failure to file objections to the findings, conclusions, and recommendations
contained in this Report within 14 days after service with a copy thereof shall bar that party from de
novo review by the district judge of those findings, conclusions, and recommendations and, except
upon grounds of plain error, from appellate review of the unobjected-to proposed factual findings
and legal conclusions accepted and adopted by the district court. Douglass v. United Services
Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
So ORDERED and SIGNED this 5

day of August, 2011.

____________________________
JUDITH K. GUTHRIE
UNITED STATES MAGISTRATE JUDGE

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