Hartman v. Caraco Pharmaceutical Laboratories, Ltd. et al
Filing
28
MEMORANDUM OPINION AND ORDER granting plaintiff's 8 MOTION to Remand; directing that this action is remanded for all further proceedings to the Circuit Court of KanawhaCounty. Signed by Judge John T. Copenhaver, Jr. on 4/29/2011. (cc: attys; any unrepresented parties; Clerk, Circuit Court of Kanawha County, West Virginia) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
KIMBERLY HARTMAN
Plaintiff,
v.
Civil Action No. 2:10-1319
CARACO PHARMACEUTICAL
LABORATORIES, LTD.,
a corporation, and
TRIVILLIAN'S PHARMACY OF
KANAWHA CITY, INC.,
a corporation,
Defendants
MEMORANDUM OPINION AND ORDER
Pending are plaintiff’s motion to remand filed December
17, 2010, and the motion to dismiss of defendant Trivillian's
Pharmacy of Kanawha City, Inc. (“Trivillian’s”), filed January
17, 2011.
I.
Hartman is a West Virginia citizen.
Michigan citizen.
Caraco is a
Trivillian’s is a West Virginia citizen.
Caraco manufactures Zolpidem, a generic substitute for the sleep
medication Ambien.
physician.
Hartman was prescribed Zolpidem by her
She filled her prescription at Trivillian’s.
During
a period of time when Hartman was taking the medication, she lost
control of her vehicle and sustained serious personal injuries.
She alleges as follows:
Among the known side effects of Zolpidem is that
persons taking it will engage in various activities
while they are asleep, including the operation of motor
vehicles. While under the influence of Zolpidem
persons who experience such side effects will have no
recollection of the events, which were taken in the
absence of any voluntary control or action on the part
of the person engaged in the activity. Plaintiff
operated her motor vehicle while asleep and under the
effect of Zolpidem, said actions being a side effect of
the medication.
(Compl. ¶ V).
On September 16, 2010, Hartman instituted this action.
She alleges in Count One that “[d]efendants failed to properly
warn . . . [her] of the dangerous side effects of Zolpidem,
including the hazard posed to her by attempted operation of motor
vehicles while sleeping.”
(Id. ¶ VI).
In Count Two, she alleges
that “[d]efendants negligently designed, tested and marketed
Zolpidem.” (Id. ¶ II).
Hartman elaborates upon the nature of
these two claims:
The Plaintiff alleges negligence and strict
liability against the pharmacy for its failure to warn
her of the dangerous side effects associated with
consumption of the prescription drug Zolpidem. Hence,
the Plaintiff’s claims against the pharmacy are based
on a theory of use defectiveness.
The West Virginia Supreme Court has explained that
a use defectiveness claim is based “not so much on a
flawed physical condition of the product, as on its
unsafeness arising out of the failure to adequately
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label, instruct, or warn.” Morningstar v. Black &
Decker Mfg. Co., 253 S.E.2d 666, 682 (W. Va. 1979).
“Use defectiveness covers situations when a product may
be safe as designed and manufactured, but which becomes
defective because of the failure to warn of dangers
which may be present when the product is used in a
particular manner.” Ilosky v. Michelin Tire Corp., 307
S.E.2d 603, 609 (W. Va. 1983).
(Id. ¶¶ 9-10).
On October 26, 2010, Caraco removed.
2011, Trivillian’s moved to dismiss.
Trivillian’s is not a proper party.
On January 17,
Both defendants allege
Caraco frames its assertion
as a fraudulent joinder challenge justifying the exercise of
diversity jurisdiction.
Trivillian’s relies upon Rule 12(b)(6),
apparently presupposing the exercise of diversity jurisdiction is
appropriate.
The defendants’ substantive arguments, however,
overlap entirely.
In sum, Caraco and Trivillian’s contend that West
Virginia Code section 30-5-12(a) and the learned intermediary
doctrine independently operate to exonerate Trivillian’s from
liability for either Counts One or Two.
Section 30-5-12(a)
provides as follows:
All persons, whether licensed pharmacists or not, shall
be responsible for the quality of all drugs, chemicals
and medicines they may sell or dispense, with the
exception of those sold in or dispensed unchanged from
the original retail package of the manufacturer, in
which event the manufacturer shall be responsible.
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W. Va. Code § 30-5-12(a).
Both defendants assert that the
“majority of courts” addressing the issue have concluded that
section 30-5-12(a) shields pharmacists from liability on failure
to warn claims.
(E.g., Trivillian’s Memo. in Supp. at 4).
II.
A.
Fraudulent Joinder Standard
The fraudulent joinder standard is well settled.
Our
court of appeals lays a “heavy burden” upon a defendant removing
a case on such grounds:
"In order to establish that a nondiverse defendant
has been fraudulently joined, the removing party must
establish either: [t]hat there is no possibility that
the plaintiff would be able to establish a cause of
action against the in-state defendant in state court;
or [t]hat there has been outright fraud in the
plaintiff's pleading of jurisdictional facts."
Mayes v. Rapoport, 198 F.3d 457, 464 (4th Cir. 1999) (emphasis
added) (quoting Marshall v. Manville Sales Corp., 6 F.3d 229, 232
(4th Cir. 1993)).
The applicable standard "is even more
favorable to the plaintiff than the standard for ruling on a
motion to dismiss[.]"
Hartley v. CSX Transp., Inc., 187 F.3d
422, 424 (4th Cir. 1999).
As the decision in Hartley illustrates, fraudulent
joinder claims are subject to a rather black-and-white analysis
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in this circuit.
remand.
Any shades of gray are resolved in favor of
At bottom, a plaintiff need only demonstrate a “glimmer
of hope” in order to have his claims remanded:
CSX contests these points and we are unable to
resolve them with the snap of a finger at this stage of
the litigation. Indeed, these are questions of fact
that are ordinarily left to the state court jury.
In all events, a jurisdictional inquiry is not the
appropriate stage of litigation to resolve . . .
various uncertain questions of law and fact. Allowing
joinder of the public defendants is proper . . .
because courts should minimize threshold litigation
over jurisdiction. Jurisdictional rules direct judicial
traffic. They function to steer litigation to the
proper forum with a minimum of preliminary fuss. The
best way to advance this objective is to accept the
parties [as] joined . . . unless joinder is clearly
improper. To permit extensive litigation of the merits
of a case while determining jurisdiction thwarts the
purpose of jurisdictional rules.
. . . . .
We cannot predict with certainty how a state court
and state jury would resolve the legal issues and weigh
the factual evidence in this case. Hartley's claims may
not succeed ultimately, but ultimate success is not
required . . . . Rather, there need be only a slight
possibility of a right to relief. Once the court
identifies this glimmer of hope for the plaintiff, the
jurisdictional inquiry ends.
Id. at 425-26 (emphasis added).
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B.
Section 30-5-12(a)
A number of judicial decisions have considered the
extent to which section 30-5-12(a) immunizes local pharmacies
from product liability claims.
Representative of the majority
position is Vagenos v. Alza Corp., No. 1:09-1523, 2010 WL 2944683
(S.D. W. Va. Jul. 23, 2010).
In Vagenos, a local pharmacy was
joined in an action alleging injuries arising out of the
decedent’s use of a fentanyl patch.
The pharmacy was alleged to
have committed negligence and engaged in negligent
misrepresentations which were “limited to claims for the failure
to provide adequate warnings regarding the Patch.”
Id. at *2.
Noting that the “majority of courts to consider the issue have
concluded that § 30-5-12 shields pharmacists from liability on
failure to warn claims,” the district court concluded the
pharmacy was fraudulently joined.
Id.
The minority approach with respect to failure to warn
claims is illustrated by Ashworth v. Albers Medical, Inc., 395 F.
Supp.2d 395 (S.D. W. Va. 2005), a decision that reiterated an
earlier interpretation of section 30-5-12(a) stated in Walker v.
Rite Aid of West Virginia, Inc., No.: 2:02- 1208, 2003 WL
24215831 (S.D. W. Va. Oct. 14, 2003).
In Ashworth, plaintiff
unwittingly purchased, and a local pharmacy innocently sold,
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counterfeit Lipitor.
She alleged, inter alia, that the pharmacy
failed to provide adequate warnings about the spurious
pharmaceutical.
One defendant removed, asserting fraudulent
joinder based upon section 30-5-12(a).
The court first observed
“that § 30-5-12(a) immunizes Rite Aid from all claims based upon
the quality of the drug.”
Id. at 405-06 (emphasis added).
Respecting Rite Aid’s liability on the failure to warn
claim, however, the court noted its earlier decision in Walker.
In that case plaintiff purchased an over-the-counter pain
medicine at a local pharmacy.
He alleged negligent design and
manufacture by the entity that produced the drug and a failure to
warn theory against the producer and the pharmacy.
The court in
Walker concluded that section 30-5-12(a) expressly abrogated
liability for product defect claims.
It additionally observed,
however, that section 30-5-12(a) was silent respecting warning
labels placed on drug packaging.
Inasmuch as the Legislature
could have specified that a pharmacy was relieved from all forms
of product liability, including failure to warn or “use
defectiveness” theories, as opposed to relief only from liability
as to the quality of the drugs sold, the court concluded that
section 30-5-12(a) did not immunize pharmacies from failure to
warn claims in the sale of non-prescription drugs.
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B.
The Learned Intermediary Doctrine
The learned intermediary doctrine is a shorthand form
for the principle that a drug manufacturer’s duty to warn is owed
to the prescribing physician and not the patient.
Some courts
have extended this manufacturer protection to pharmacies
dispensing prescription drugs.
Despite the ruling in Walker that
would have allowed imposition of liability upon Rite Aid for a
failure to warn claim despite section 30-5-12(a), the court in
Ashworth nevertheless found fraudulent joinder based upon the
learned intermediary doctrine:
The court finds that the learned intermediary doctrine
applies to discharge any duty of the pharmacy to warn
its customer of counterfeit drugs where as here the
drugs are dispensed unaltered from the purported
manufacturer and absent the allegation that the
pharmacy had knowledge of either the counterfeit scheme
or the existence of such counterfeit drugs in the
distribution system at the time of the purchase.
Ashworth, 395 F. Supp.2d at 407-08.
But Hartman cites the more recent decision by the West
Virginia Supreme Court of Appeals in State ex rel. Johnson &
Johnson Corp. v. Karl, 220 W. Va. 463, 647 S.E.2d 899 (2007).
She believes Karl worked a sea-change in the jurisprudence
governing the learned intermediary doctrine.
In Karl, the
supreme court of appeals confronted a pharmaceutical
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manufacturer’s request for adoption of the learned intermediary
doctrine to protect it from a failure to warn claim brought by a
consumer.
The supreme court of appeals mentioned and parted
company with the substantial majority of other state courts that
had addressed the issue as well as with Ashworth and other
decisions predicting West Virginia would adopt the learned
intermediary doctrine generally.
See Vitatoe v. Mylan
Pharmaceuticals, Inc., 696 F. Supp.2d 599, 609 (N.D. W. Va. 2010)
(“Prior to Karl, federal district courts in West Virginia had
speculated, albeit incorrectly, that West Virginia would likely
adopt the learned intermediary doctrine.”).
The precise holding
in the Karl case is as follows: “[U]nder West Virginia products
liability law, manufacturers of prescription drugs are subject to
the same duty to warn consumers about the risks of their products
as other manufacturers.”
Id. at 478, 647 S.E.2d at 914.
It is true that the Karl decision did not involve a
pharmacy.
The case dealt only with a physician and manufacturer
as defendants.
Additionally, the majority opinion appears to
have been influenced heavily by the “current state of the
prescription drug industry and physician/patient relationships”
impacted by direct marketing of drugs to consumers through mass
media advertising.
Id. at 465, 647 S.E.2d at 901.
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However, in applying the fraudulent joinder standard,
one might possibly conclude that Karl has a more expansive reach.
The decision could be read as a wholesale rejection of the
learned intermediary doctrine in all of its applications,
including its potential to exonerate pharmacies.
For example,
the majority opinion cites the Ashworth decision, dealing with
pharmacies, as one of the “federal court[ decisions] . . . [to]
have . . . speculated that West Virginia would adopt the
doctrine.”
Id. at 477, 647 S.E.2d at 913 (emphasis added).
The
observation is immediately followed by this reservation: “While
federal court opinions applying West Virginia law are often
viewed persuasively, we are not bound by those opinions.”
C.
Id.
Analysis
Hartman contends that Trivillian’s did not provide her
a patient information leaflet about Zolpidem.
She also asserts
that discovery may demonstrate that Trivillian’s failed in other
respects to warn her of the compound’s adverse effects.
Trivillian’s will doubtless interpose one or more defenses to
these allegations.
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The fraudulent joinder standard resolves such factual
disputes in favor of the party seeking remand.
legal issues are dealt with similarly.
The disputed
Respecting the
application of section 30-5-12(a), Vagenos and other cases read
the statute to immunize pharmacies from failure to warn claims.
The decisions in Ashworth and Walker, however, conclude that
failure to warn claims are actionable under a use-defectiveness
theory irrespective of section 30-5-12(a).
There is likewise
uncertainty concerning the learned intermediary doctrine.
In
sum, the Karl decision may be read as allowing affixation of
liability upon pharmacies when failure to warn claims are alleged
against them.
This incertitude respecting both legal issues
dooms defendants’ fraudulent joinder challenge.
Simply put, “The party alleging fraudulent joinder . .
. must show that the plaintiff cannot establish a claim even
after resolving all issues of law and fact in the plaintiff's
favor.”
Hartley, 187 F.3d at 424.
Given the uncertainties here
in both the factual and legal landscape, Caraco and Trivillian’s
cannot satisfy their heavy burden.
The court, accordingly,
concludes that Trivillian’s is not fraudulently joined.
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III.
Based upon the foregoing discussion, it is ORDERED
as follows:
1.
That plaintiff’s motion to remand be, and it hereby is,
granted; and
2.
That this action be, and it hereby is, remanded for all
further proceedings to the Circuit Court of Kanawha
County.
The Clerk is requested to transmit this written opinion
and order to all counsel of record and to any unrepresented
parties.
DATED:
April 29, 2011
John T. Copenhaver, Jr.
United States District Judge
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