DAVID R. HERNDON, Chief Judge.
This action was commenced on August 5, 2011 in the Circuit Court of Etowah County, Alabama for personal injuries allegedly suffered by the plaintiff as a result of ingesting Yasmin and Ocella (a generic version of Yasmin). Plaintiff, a citizen of Alabama, brings claims against several non-Alabama entities involved in the manufacture, promotion, and/or sale of Yasmin and Ocella ("pharmaceutical defendants"). Plaintiff's original complaint also asserts a single claim against Gregerson's Food's Inc. ("Gregerson's"), the Alabama pharmacy that allegedly caused "the Yasmin which in whole or part caused injury to the Plaintiff to enter into the stream of commerce" (Doc. 1-1 p. 4). The action was removed on the ground that Gregerson's, the sole non-diverse defendant, was fraudulently joined (Doc. 1). Presently before the Court is plaintiff's motion to remand to state court (Doc. 14). For the reasons discussed below the Court
Shortly after plaintiff filed her complaint in state court, Gregerson's filed a motion to dismiss pursuant to Rule 12(b) of the Alabama Rules of Civil Procedure (Doc. 14 p. 17).
On September 8, 2011 (without any hearing on the matter) Judge William H. Rhea issued an order summarily denying Gregerson's motion to dismiss and ordering Gregerson's to file an answer (Doc. 14 p. 18).
While plaintiff's first motion to remand was pending, the case was transferred to this Court (Doc. 13). Nine days later, plaintiff filed a revised motion for remand (Doc. 14). Plaintiff's second motion for remand argues that the state trial court's order denying Gregerson's motion to dismiss establishes that plaintiff has asserted a viable claim against Gregerson's. In addition, plaintiff contends that her action against Gregerson's is viable because it is filed pursuant to the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"). Finally, plaintiff contends that the amount in controversy requirement is not met. In response, the pharmaceutical defendants contend that any cause of action against Gregerson's is barred by the learned intermediary rule (Doc. 15). They also contend the state court's denial of Gregerson's motion to dismiss is irrelevant and that the amount in controversy requirement has been met (Doc. 15).
The plaintiff's original complaint (Doc. 1-1) asserts nine separate causes of action: (1) "Negligence and Negligence Per Se"; (2) "Products Liability — Unreasonably Dangerous Design"; (3) "Products Liability — Failure to Warn"; (4) "Breach of Express Warranty"; (5) "Breach of Implied Warranties"; (6) "Fraudulent Misrepresentation"; (7) "Fraudulent Concealment"; (8) "Negligent Misrepresentation"; and (9) "Fraud and Deceit." The original complaint
The claim delineated as "Breach of Express Warranty" is the only claim directed against Gregerson's (Doc. 1-1 pp. 12-13). The breach of express warranty claim asserts that the pharmaceutical defendants made express representations regarding the safety and efficacy of Yasmin and Ocella and that Yasmin and Ocella did not and do not conform to the alleged express representations (Doc. 1-1 p. 13). Plaintiff does not allege that Gregerson's made any express representations with regard to Yasmin and/or Ocella. As to Gregerson's, the express warranty claim alleges the following:
(Doc. 1-1 p. 13). The only other assertions with regard to Gregerson's are found in paragraph eleven in the subsection that identifies and defines the parties. Paragraph eleven identifies Gregerson's as an Alabama corporation and a distributor of Yasmin (Doc. 1-1 p. 5). Paragraph eleven further states that Gregerson's is a distributor of Yasmin as that term is defined in the AEMLD and that Gregerson's "through its actions caused the Yasmin which in whole or part caused injury to the Plaintiff to enter into the stream of commerce" (Doc. 1-1 p. 5).
On December 30, 2011, Gregerson's filed a motion to dismiss plaintiff's original complaint for failure to state a claim (Doc. 21). Thereafter, plaintiff filed her first amended complaint and a response to Gregerson's motion to dismiss the original complaint (Doc. 23). Plaintiff's first amended complaint redefines the term "Defendants" to include Gregerson's (Doc. 23 p. 5). Plaintiff re-asserts the same nine causes of action. For the most part, the claims are directed generically against "Defendants" (now defined to include Gregerson's). However, as with the original complaint, one paragraph in the breach of express warranty claim is directed specifically against Gregerson's. This paragraph again alleges that Gregerson's conduct is actionable because it failed to warn the plaintiff of the subject drugs' dangerous side effects (Doc. 23 p. 13). In addition, three paragraphs in plaintiff's breach of implied warranties claim are directed against both "Defendants and Gregerson's" (Doc. 23 pp. 13-14).
In response to plaintiff's first amended complaint, Gregerson's filed a revised motion to dismiss (Doc. 26). Plaintiff responded to Gregerson's revised motion to dismiss on March 12, 2012 (Doc. 28) and Gregerson's filed a reply brief on March 28, 2012 (Doc. 29-1).
The Seventh Circuit has repeatedly indicated removal jurisdiction is determined at the time of removal and is not affected by post-removal events, including amendments to the pleadings. See In re Burlington Northern Santa Fe Ry. Co., 606 F.3d 379, 380 (7th Cir.2010) ("The well established general rule is that jurisdiction is determined at the time of removal and nothing filed after removal affects jurisdiction");
In light of this precedent, the Court does not consider plaintiff's post removal amendments in assessing whether Gregerson's has been fraudulently joined and in deciding plaintiff's motion to remand. Rather, the only relevant allegations are those contained in plaintiff's complaint at the time of removal.
Plaintiff argues the state court's denial of Gregerson's motion to dismiss demonstrates that plaintiff has asserted viable claims against Gregerson's.
"A plaintiff typically may choose its own forum, but it may not join a nondiverse defendant simply to destroy diversity jurisdiction." Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752, 763 (7th Cir. 2009). See also Gottlieb v. Westin Hotel
In the context of jurisdiction, "fraudulent" is a term of art. See Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir.1992). "Although false allegations of jurisdictional fact may make joinder fraudulent... in most cases fraudulent joinder involves a claim against an in-state defendant that simply has no chance of success whatever the plaintiff's motives." Id. (collecting cases). To prove fraudulent joinder, the out-of-state defendant must "show there exists no `reasonable possibility that a state court would rule against the [in-state] defendant.'" Schwartz v. State Farm Mutual Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir.1999) (citing Poulos, 959 F.2d at 73). See also Walton v. Bayer Corp., 643 F.3d 994, 999 (7th Cir.2011) (fraudulent joinder is present where the claim against the non-diverse defendant is "utterly groundless"); Schur, 577 F.3d at 764 (in a fraudulent joinder analysis, the "district court must ask whether there is `any reasonable possibility' that the plaintiff could prevail against the non-diverse defendant"). Although a defendant bears a "heavy duty" in this regard, "it need not negate any possible theory that [the plaintiff] might allege in the future: only [the plaintiff's] present allegations count." Poulos v. Naas Foods, Inc., 959 F.2d 69, 74 (7th Cir.1992).
The AEMLD is the judicially created body of law governing product liability claims in Alabama. In essence, the AEMLD is a modified version of the strict liability set out in section 402A of the Restatement (Second) of Torts. See Casrell v. Altec Indus., 335 So.2d 128 (Ala. 1976); Atkins v. American Motors Corp., 335 So.2d 134. The primary difference between the AEMLD and section 402A is that, unlike section 402A, the AEMLD does not impose a "no-fault" or strict liability concept. Casrell, 335 So.2d at 132. Instead, it "adhere[s] to the tort concept of fault." Id. See also Atkins, 335 So.2d at 137, 140. Thus, to recover under the AEMLD, it is not enough to simply show that a plaintiff took a drug and suffered a resultant injury. Instead, the plaintiff must show "fault" on the part of the manufacturer, supplier, or retailer. Atkins v. Am. Motors Corp., 335 So.2d 134, 139-140 (Ala.1976).
"Fault" is established in an AEMLD action by showing that the manufacturer, supplier, or retailer sold the product in a defective condition. Sears, Roebuck & Co., Inc. v. Haven Hills Farm, 395 So.2d 991, 994 (Ala.1981). That is, "[t]he fault of the manufacturer, or retailer, is that he has conducted himself unreasonably in placing a product on the market which will cause harm"; the existence of a "dangerously unsafe chattel is negligence within itself." Atkins, 335 So.2d at 140. To establish liability under the AEMLD a plaintiff must show:
Although retailers may be subject to liability under the AEMLD, they are also afforded protection under the affirmative defense of lack of causal relation. Pursuant to this defense, a defendant — other than a manufacturer — may escape liability by:
Mathis v. Harrell Co., Inc., 828 So.2d 248, 258 (Ala.2002). The opportunity to inspect "must be a meaningful one." Fleming Farms v. Dixie Ag Supply, Inc., 631 So.2d 922, 928 (Ala.1994). If the defect was latent and could not have been discovered by either consumer or distributor there is no meaningful opportunity to inspect. Id. Under the lack of causal relation defense, a retailer that only distributes finished products will not be liable under the AEMLD where the retailer received the product in a defective condition, did not contribute to the product's defective condition, and where no reasonable means of inspection could have revealed the alleged defective condition. See Id. at 927-928.
In the instant case, the Court must also consider Alabama's treatment of prescription drugs in product liability actions. The Alabama Supreme Court has concluded that prescription drugs are considered "unavoidably unsafe products" and are treated differently than standard products. As explained by the Alabama Supreme Court in Stone v. Smith, Kline & French Laboratories 447 So.2d 1301, 1304 (Ala.1984),
The Alabama Supreme Court's decision in Stone turns the Court's attention to a second issue that must be considered in this case — the learned intermediary doctrine. Stone marks the adoption of the learned intermediary doctrine in Alabama. At issue in Stone, was whether a manufacturer's duty to warn extends beyond the prescribing physician to the physician's patients who would ultimately use the drugs. The Alabama Supreme Court concluded that the manufacturer's duty to warn does not extend beyond the prescribing physician:
Stone v. Smith, Kline & French Lab., 447 So.2d 1301, 1304 (Ala. 1984) (quoting Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1276 (5th Cir.1974)).
Walls, 887 So.2d at 885-86 (quoting McKee v. American Home Prods. Corp., 113 Wn.2d 701, 782 P.2d 1045, 1051 (1989)). The Alabama Supreme Court subsequently explained that Stone and Walls "sought to prevent, asking the pharmacist to intrude himself or herself into the physician-patient relationship and requiring the pharmacist to give advice or take actions that he or she is neither licensed nor trained to give or take." Nail v. Publix Super Markets, Inc., 72 So.3d 608, 615 (Ala.2011).
Plaintiff claims that she "suffered severe injuries and other damages" as a result of Yasmin and Ocella, "including but not limited to thirteen blood clots and pulmonary embolisms in her right leg, left arm and both lungs, two of which passed through her heart." The complaint further describes plaintiff's injuries as "sever and permanent," including, "the inability to be on birth control in the future, ... emotional distress, mental anguish, and... the potential for future thromboembolic events." Plaintiff alleges "physical pain" and "diminished enjoyment of life," and claims her injuries are both "serious" and "life-threatening," allegedly requiring "life-long medical treatment, monitoring, and/or medications." Plaintiff also seeks punitive damages. These alleged injuries make it abundantly clear that plaintiff is seeking damages in excess of $75,000. See Walton v. Bayer Corp., 643 F.3d 994, 998 (7th Cir.2011). Thus, the amount in controversy requirement is met.
In her motion to remand, plaintiff states that her claim against Gregerson's if filed pursuant to the AEMLD, which allows "an aggrieved Plaintiff to bring a cause of action against the sellers (Gregerson's) of a defective product" (Doc. 14 p. 6). This seemingly simply assertion presents a slew of issues that the Court will attempt to address one by one.
Initially, the Court notes that plaintiff's complaint does not delineate which claims are brought pursuant to the AEMLD — other than to state that "[t]his is an action brought pursuant to the Alabama Extended
Another issue with plaintiff's position is that the only claim directed against Gregerson's is a claim for breach of express warranty. To establish a claim for breach of express warranty, a plaintiff must prove that a manufacturer or seller of a product made "[a]ny affirmation of fact or promise ... which relates to the goods and becomes part of the basis of the bargain." Ala. Code § 7-2-313(1)(a) (2002). Plaintiff does not allege that Gregerson's made any representation regarding the subject drug. Instead, plaintiff alleges that Gregerson's is liable for failing to warn her about the subject drug's potentially adverse side effects. Considering the allegations in the complaint, plaintiff cannot maintain a cause of action for breach of express warranty against Gregerson's.
Finally, even if plaintiff had alleged a claim for failure to warn or a claim under the AEMLD against Gregerson's, her claims would have no reasonable chance of success. A failure to warn claim directed against Gregerson's would have no reasonable chance of success given the Alabama Supreme Court's decision in Walls v. Alpharma USPD, Inc., 887 So.2d 881, 882 (Ala.2004), which extends the learned intermediary doctrine to pharmacies. With regard to an AEMLD claim, the Alabama Supreme Court has stated that, for cases involving prescription drugs, which are inherently unsafe, "the adequacy of [a drug's] accompanying warning determines whether the drug, as marketed, is defective, or unreasonably dangerous." Stone, 447 So.2d at 1304. This decision, in conjunction with the extension of the learned intermediary doctrine announced in Walls, preclude liability under the facts of this case.
To the extent that plaintiff contends Gregerson's is liable under the AEMLD not because it is a pharmacy but because it is a distributor, the affirmative defense of
The only claim directed against Gregerson's is a claim for breach of express warranty. Because plaintiff has failed to allege any representation made by Gregerson's, her breach of express warranty claim has no reasonable chance of success. To the extent that plaintiff has stated a claim under the AEMLD or a common law failure to warn claim against Gregerson's, these claims have no reasonable chance of success for the reasons discussed herein. Accordingly, the Court disregards the citizenship of Gregerson's as a fraudulently joined defendant. The remaining defendants are completely diverse from plaintiff. Consequently, the court finds that it has diversity jurisdiction pursuant to 28 U.S.C. § 1332.
Accordingly, it is
