Durr v. Erwin, MD et al

Filing 19

MEMORANDUM AND ORDER granting 13 MOTION to Remand. The case is remanded to the 149th Judicial District Court of Brazoria County, Texas. Case terminated on 11/19/2013(Signed by Judge Gregg Costa) Parties notified.(arrivera, 3)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
RHONDA DURR,
Plaintiff,
VS.
KORMAN ERWIN, MD, et al,
Defendants.

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§ CIVIL ACTION NO. 3:13-CV-320
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MEMORANDUM AND ORDER

Plaintiff Rhonda Durr filed suit in state court against an out-of-state drug
manufacturer and an in-state doctor alleging that congenital birth defects her
daughter suffered were the result of Durr taking Zoloft during her pregnancy. The
Defendants removed the case to this Court, arguing that the in-state doctor was
improperly joined. Durr now seeks remand. In addition to maintaining their
position that diversity jurisdiction exists because the doctor was improperly joined,
the Defendants argue that this Court should stay proceedings because of the
possible transfer of this case to the Zoloft multidistrict litigation (MDL) court.
I.

BACKGROUND
Plaintiff Rhonda Durr ingested the prescriptive drug “Zoloft,” manufactured

by Defendant Pfizer, while she was pregnant. Docket Entry No. 1-4 ¶ 9, 12. Her
treating physician, Defendant Dr. Erwin Korman, prescribed the medication.
Id. ¶ 9. Durr alleges that Zoloft was defective and that ingesting it while pregnant
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caused her child to be born with congenital birth defects, including cleft lip and
palate. Id. ¶ 12. She alleges negligence, strict liability, negligent design, failure to
warn and gross negligence claims against Pfizer centered on its failure to warn the
medical community that Zoloft was dangerous for pregnant mothers to ingest.
Docket Entry No. 13 ¶ 3. In the alternative, she alleges a negligence claim against
Dr. Korman for prescribing Zoloft to Durr while she was pregnant.
After this case was removed, a conditional transfer order was issued to send
this matter to the Eastern District of Pennsylvania for consolidated MDL pretrial
proceedings with other Zoloft cases. Id. ¶ 7. Durr filed a notice of opposition, and
the Judicial Panel for Multidistrict Litigation is scheduled to rule on the transfer at
its December 5 session. Durr also filed a motion to remand, arguing that her claim
against Erwin was properly pled and thus complete diversity is lacking.
II.

MOTION TO STAY PROCEEDINGS
Pfizer asks the Court to stay proceedings pending the transfer to the MDL

proceedings, arguing that a stay would maximize judicial efficiency and keep
Pfizer from having to litigate the same issues in this Court that are being litigated
in similar cases pending in the MDL court. As Pfizer recognizes, the Court has
significant discretion in deciding whether to stay this case pending possible
transfer to an MDL. Indeed, in a letter to the Court discussing the potential
transfer of this case to the MDL, the Chairman of the Panel on Multidistrict
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Litigation wrote that “the Panel would like to emphasize that your jurisdiction
continues until transfer to the MDL – if the Panel so orders – becomes effective.
You should feel free to rule on any pending motions, including, but not limited to,
motions to remand to state court.” Letter from Chairman of the Panel – To
Transferor Judge, In re: Zoloft (Sertaline Hydrochloride Products Liability
Litigation, MDL No. 2342.
As other courts have noted, the Court would not necessarily conserve
judicial resources by having the MDL court rule on the motion to remand. See,
e.g., Pennsylvania v. TAP Pharm. Prods., Inc., 415 F. Supp. 2d 516, 521 (E.D. Pa.
2005) (noting that “the same degree of judicial resources must be expended” in
either court “to make an assessment of which party should prevail” on
jurisdictional issues such as a motion to remand); Barragan v. Warner-Lambert
Co., 216 F. Supp. 2d 627, 630 (W.D. Tex. 2002) (holding that “judicial efficiency
and economy are better served” by the court considering the motion to remand
before a transfer to the MDL court). The parties have already briefed the remand
issue in this Court—delay and costs would only increase if the Court were to grant
the stay and leave the remand issue for the MDL court to resolve at some later
date. And this Court has at least as much familiarity with the law of the State in
which it sits, which governs the remand issue, as does the MDL panel in
Pennsylvania. The Court therefore declines to issue a stay.
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III.

MOTION TO REMAND
The improper joinder doctrine is a narrow exception to the complete

diversity rule. McDonal v. Abbott Labs., 408 F.3d 177, 183 (5th Cir. 2005). “The
party seeking removal bears a heavy burden of proving that the joinder of the instate party was improper.” Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 574
(5th Cir. 2004) (en banc).

To establish improper joinder, the party seeking

removal must show either: “(1) actual fraud in the pleading of jurisdictional facts,
or (2) inability of the plaintiff to establish a cause of action against the non-diverse
party in state court.” Travis v. Irby, 326 F.3d 644, 647 (5th Cir. 2003) (citation
omitted). Under the second test upon which Pfizer relies, the removing party must
show “that there is no reasonable basis for the district court to predict that the
plaintiff might be able to recover against an in-state defendant.” Smallwood, 385
F.3d at 573.
In assessing whether a plaintiff has a reasonable basis of recovery, the “court
may conduct a Rule 12(b)(6)-type analysis, looking initially at the allegations of
the complaint to determine whether the complaint states a claim under state law
against the in-state defendant.” Id. “A motion to remand is normally analyzed
with reference to the well-pleaded allegations of the complaint, which is read
leniently in favor of remand under a standard similar to Rule 12(b)(6).” Boone v.
Citigroup, Inc., 416 F.3d 382, 388 (5th Cir. 2005). The district court must resolve
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all factual disputes and state law ambiguities in favor of the plaintiff. Travis, 326
F.3d at 649.
The “Rule 12(b)(6)-type analysis” that governs improper joinder claims
often requires a Court to decide whether to apply Rule 12 in full, with its postIqbal and Twombly gloss, or the more lenient Texas fair-notice standard. See
Centro Cristiano Cosecha Final, Inc. v. Ohio Cas. Ins. Co., 2011 WL 240335, at
*12–13 (S.D. Tex. Jan. 20, 2011) (explaining the differences between the two
standards). Most district courts in this circuit have applied the state court standard,
given that “state court plaintiffs should not be required to anticipate removal to
federal court.” Warren v. State Farm Mut. Auto. Ins. Co., 2008 WL 4133377, at *4
(N.D. Tex. Aug. 29, 2008); Cal Dive Int’l, Inc. v. Chartis Claims, Inc., 2011 WL
5372268, at *5 (E.D. Tex. Nov. 7, 2011) (noting that the majority of courts to
address this issue have applied the state pleading standard); Sanders v. Husqvarna,
Inc., 2012 WL 5210682, at *1 n.2 (S.D. Tex. Oct. 22, 2012) (applying the state law
standard). But the Court does not need to decide the issue in this instance because
the Court finds that Durr has sufficiently pled her negligence claim against Dr.
Korman under either pleading standard.
Durr has alleged that Dr. Korman was her treating physician and that he
violated his duty of care by (1) inappropriately treating her with Zoloft, (2) failing
to select a more appropriate and efficacious drug for her, (3) prescribing Zoloft
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“off-label,” (4) failing to warn her regarding the birth defect risks of Zoloft, and (5)
failing to act as a reasonable and prudent physician. Docket Entry No. 13 at 5. By
alleging that Dr. Korman was her doctor, Durr established that he owed her a duty
to act as a reasonably prudent physician. Her allegations, which include several
theories under which a court could find Dr. Korman negligent, give him fair notice
of the facts that would constitute a breach of his duty to her as a treating physician.
And her state court petition also establishes a basis for the Court to find that the
causation and damages elements of her negligence claim could be satisfied. Even
under the more demanding federal pleading standards, Durr has satisfied her
burden of establishing a plausible claim. See Bell Atl. Corp. v. Twombly, 550 U.S.
544, 565 n.10 (2007) (noting that a complaint identical to the “simple fact pattern”
laid out in the negligence form in the Appendix of Forms of the Federal Rules of
Civil Procedure would be sufficiently pled because a “defendant wishing to
prepare an answer . . . would know what to answer”); Gen. Elec. Capital Corp. v.
Posey, 415 F.3d 391, 396 (5th Cir. 2005) (noting that a negligent misrepresentation
claim in which plaintiff asserted that defendants “failed to exercise reasonable care
in obtaining the information concerning [a company’s] financial condition”
sufficiently stated a claim); Cunningham v. Offshore Specialty Fabrications, Inc.,
543 F. Supp. 2d 614, 641 (E.D. Tex. 2008) (finding a plausible federal claim when
plaintiffs alleged that “Defendants were negligent in their hiring practices,
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resulting in unsafe work conditions and real or potential bodily injury to the
Plaintiffs”).
Courts in this district have found less thorough allegations sufficient in
pharmaceutical cases in which an in-state doctor was also sued. In Flores v. Merck
& Co., Inc., for instance, the plaintiff alleged that a doctor who prescribed Vioxx to
the plaintiff was negligent for (1) failing to warn (2) failing to properly monitor the
effect of the drug and (3) failing to offer a safer alternative drug. 2006 WL
3302545, at *2 (S.D. Tex. Nov. 10, 2006). The Court noted that the plaintiff had
sufficiently pled all of the elements of a medical malpractice claim and that the
doctor was therefore properly joined as a party. Id. at *2–3. In another case, the
court accepted bare-bone allegations that a doctor was negligent for “fail[ing] to
warn and/or negligently prescrib[ing] the medication Celebrex to Plaintiff.”
Sauceda v. Pfizer, Inc., 2006 WL 3813777, at *2 (S.D. Tex. Dec. 26, 2006).
Courts in other districts have also remanded pharmaceutical cases in which
negligence was alleged against an in-state doctor on allegations no more specific
than those in this case. See, e.g., Stone v. Baxter Intern., Inc., 2009 WL 236116, at
*6 (D. Neb. Jan. 30, 2009) (granting a motion to remand when plaintiff alleged that
medical providers were negligent for administering contaminated drug); Schultz v.
AstraZeneca Pharm., L.P., 2006 WL 3797932, at *4 (N.D. Cal. Dec. 22, 2006)
(finding that allegations that a doctor prescribed drugs for unapproved uses, failed
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to monitor, and failed to warn of serious adverse effects stated a “colorable claim
of professional negligence”); Rice v. Pfizer, Inc., 2006 WL 1932565, at *2 (N.D.
Tex. July 7, 2006) (rejecting fraudulent joinder claim similar to the one brought
here because plaintiffs had “adequately pleaded the four elements of a claim for
medical malpractice.”).
Pfizer’s core concern with Durr’s allegations against Dr. Korman is not the
specificity of the allegations but their inconsistency with the allegations against
Pfizer that contend Pfizer failed to warn the medical community about the dangers
of Zoloft. Indeed, most of the petition challenges Pfizer’s failure to warn and then,
in one brief paragraph, alleges in the alternative that Dr. Korman knew about
Zoloft’s dangers and negligently failed to warn Durr about those dangers. Pfizer
argues that Durr’s “conclusory allegations against Dr. Korman, which are directly
at odds with [her] claims against Pfizer, are further evidence that Dr. Korman was
joined as a defendant solely to defeat federal jurisdiction.” Docket Entry No. 18 at
8. But Texas law permits Durr to “set forth two or more statements of a claim
alternatively or hypothetically, either in one count or defense or in separate counts
or defenses . . . regardless of consistency.” Tex. R. Civ. P. 48. And because the
Court has found that Durr has adequately pled her claim against Dr. Korman, that
claims’ inconsistency with her claim against Pfizer does not defeat diversity
jurisdiction.
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Pfizer cites Heirs of the Estate of Flores v. Merck & Co. as support for its
argument that when allegations against a drug manufacturer and an in-state doctor
are incompatible, a court can find that the doctor was fraudulently joined. 2004
U.S. Dist. LEXIS 28017 (S.D. Tex. Mar. 15, 2004). The plaintiffs’ petition in
Flores, however, was completely bereft of any allegations against the doctor
beyond a description of his role in prescribing the medication that led to the
plaintiffs’ injuries. And the Flores Court did not take into account that Texas law
allows a plaintiff to assert alternative claims. Compare Continental Sav. Ass’n v.
Maheney, 641 S.W.2d 290, 292 (Tex. App.—Houston [14th Dist.] 1982, writ
refused n.r.e.) (citation omitted) (explaining that because a plaintiff might not
know at the outset what facts will later be established, it is prudent to plead
“multiple theories and seek alternative and inconsistent relief.”).
Because Pfizer has failed to show that “there is absolutely no possibility that
[Durr] will be able to establish a cause of action” against Dr. Korman, see Green,
707 F.2d at 205, diversity jurisdiction is lacking.
IV.

Conclusion
For the reasons discussed above, the Court exercises its discretion to rule on

Durr’s motion to remand prior to any MDL transfer. Because the Court finds that
Durr’s claim against Dr. Korman is adequately pled, the Court does not have
subject matter jurisdiction over this matter and must remand it to state court. The
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Plaintiff’s Motion to Remand (Docket Entry No. 13) is therefore GRANTED and
IT IS ORDERED that the above-captioned cause is REMANDED to the 149th
Judicial District Court of Brazoria County, Texas.
SIGNED this 19th day of November, 2013.

___________________________________
Gregg Costa
United States District Judge

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