The County Commission of McDowell County v. McKesson Corporation et al

Filing 70

MEMORANDUM OPINION AND ORDER denying plaintiff's 26 MOTION to Remand. 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. Signed by Senior Judge David A. Faber on 7/3/2017. (cc: counsel of record, unrepresented parties and Circuit Court of McDowell County) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
THE COUNTY COMMISSION OF
MCDOWELL COUNTY,
Plaintiff,
v.

CIVIL ACTION NO. 1:17-00946

MCKESSON CORPORATION, et al.,
Defendants.
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 McDowell County, the County

Commission, filed this civil action in the Circuit Court of
McDowell County and named as defendants three corporate

1

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

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.
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.
A.

Discussion

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).

2

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.
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,

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in many cases, the difference between a profit and a loss on his
bargain.2
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 composing several

2

F. Thornton Miller, Juries and Judges Versus the Law:
Virginia Provincial Legal Perspective, 1783-1828, at 34-37
(1994).
4

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 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.

5

B.

Fraudulent Joinder3

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

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.
6

(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.
have applied this rule in the extreme.

Courts

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 service 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 WL 4161965, *8 (S.D.W. Va. Aug. 19, 2014) (“The pre7

suit 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 non-diverse defendants are
sufficiently related to be properly joined in a single case.
8

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.

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 F. App’x 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.
9

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
10

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 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.

This case, in contrast to Wyatt, is more akin to Hughes v.
Sears, Roebuck and Co., Civil Action No. 2:09-CV-93, 2009 WL
2877424 (N.D.W. Va. Sept. 3, 2009).
a treadmill.

See id. at *1.

Hughes involved an injury on

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.
11

See id.

Later, the same day, an emergency room physician, joined

as a co-defendant, 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
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.
Motion to Remand is therefore DENIED.
12

Since the court lacks

The

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

13