United States District Court, S.D. Illinois
August 25, 2005.
RALPH RABE, JOHN NANCE, RITA ALLEN, LLOYD STABER, SR., and ROSEMARY ROBERTS, Plaintiffs,
MERCK & CO., INC., WALGREEN CO., d/b/a WALGREENS, EXPRESS SCRIPTS, INC., and AMERICAN DRUG STORES, INC., d/b/a OSCO DRUGS, Defendants. and JOYCE MORGAN, GLORIA KING, CHARLES HESSLING, DOROTHY NEFF, JAMES PATTERSON, and HUGH HOGGINS, Plaintiffs, v. MERCK & CO., INC., WALGREEN CO., d/b/a WALGREENS, K-MART CORPORATION, K-MART CORPORATION OF ILLINOIS, INC., MEDCO HEALTH SOLUTIONS, INC., and CVS PHARMACY, INC., Defendants.
The opinion of the court was delivered by: G. PATRICK MURPHY, Chief Judge, District
MEMORANDUM AND ORDER
These two actions, dealing with the prescription drug Vioxx,
are set for a hearing on Plaintiffs' motions to remand on Monday,
August 29, 2005. Defendants have moved to continue the hearing
because of a scheduling conflict. The Court has already reviewed
the parties' submissions, however, and concludes that oral
argument would add nothing and only result in the expenditure of
more time and expenses by all involved. Accordingly, the hearing
is canceled, and these actions are remanded to the state courts
from which they came for the reasons explained below.
The Rabe action was filed in St. Clair County, Illinois, on
April 12, 2005. The Morgan action was filed in Madison County,
Illinois, on the same day. The state court complaints assert
claims for strict products liability (defective design, failure
to warn, and sale of defective product), negligent design,
negligent failure to warn, deceptive trade practices, negligent
misrepresentation, fraudulent omission/concealment, common law
fraud, and breach of warranty.
Both actions were removed to this Court by Merck Rabe on
May 20, 2005, and Morgan on May 26, 2005. The notices of
removal are virtually identical Merck asserts that diversity
jurisdiction exists if the Court can disregard the plaintiffs
who have been "misjoined" and local defendants who have been
It is fundamental that "[f]ederal courts are not courts of
general jurisdiction; they have only the power that is authorized
by Article III of the Constitution and the statutes enacted by
Congress pursuant thereto." Bender v. Williamsport Area School
Dist., 475 U.S. 534, 541 (1986). For this reason, district courts must "interpret the removal statute
narrowly," and any doubt regarding jurisdiction should be
resolved in favor of remand to state court. Doe v.
Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). As
the party seeking to invoke the Court's jurisdiction, Merck bears
the burden of proving the existence of federal subject matter
jurisdiction by "competent proof," NLFC, Inc. v. Devcom
Mid-America, Inc., 45 F.3d 231, 237 (7th Cir. 1995), which
means "proof to a reasonable probability that jurisdiction
exists." Target Market Publishing, Inc. v. ADVO, Inc.,
136 F.3d 1139, 1142 (7th Cir. 1998).
In order for this Court to have diversity jurisdiction under
28 U.S.C. § 1332, the parties must be of diverse citizenship and the
amount in controversy must exceed the sum or value of $75,000,
exclusive of interest and costs. The burden of proof falls on the
party seeking to invoke federal diversity jurisdiction to present
"competent proof" that the requirements of § 1332 have been met.
Chase v. Shop 'N Save Warehouse Foods, Inc., 110 F.3d 424, 427
(7th Cir. 1997); see also McNutt v. General Motors
Acceptance Corp., 298 U.S. 178, 179 (1936). In deciding whether
a defendant has been fraudulently joined, a federal court "must
engage in an act of prediction: is there any reasonable
possibility that a state court would rule against the non-diverse
defendant?" Poulos v. Naas Foods, Inc., 959 F.2d 69, 73
(7th Cir. 1992). As recognized by the Seventh Circuit Court
of Appeals in Poulos, "[a]n out-of-state defendant who wants to
remove must bear a heavy burden to establish fraudulent joinder."
As the parties note, this Court has ruled on the issue of the
fraudulent joinder of local pharmacy defendants in several recent
cases. (See McQuay v. Merck & Co., Inc., Cause No. 05-038-GPM;
Brame v. Merck & Co., Inc., Cause No. 05-034-GPM; Karwoski v.
Merck & Co., Inc., Cause No. 05-127-GPM; see also Donohoo v.
Merck & Co., Inc., Cause No. 05-166-GPM; Jackson v. Merck & Co., Inc., Cause No. 05-167-GPM.) These cases are no
different. Do the plaintiffs have a claim against the local
defendants? The answer is YES they assert that these defendants
breached the implied warranty of merchantability and are liable
for strict products liability and negligent failure to warn. Is
there any reasonable possibility that the state court would
rule against these defendants? Again, the answer is YES in
certain cases, a pharmacy can be liable for negligent failure to
warn, negligent undertaking to warn, and strict liability. For
example, Plaintiffs may show that the pharmacy defendants had
special knowledge of their medical condition or that they
undertook to warn them and provided inaccurate information. The
Court also disagrees with Merck that the Illinois Supreme Court's
decision in Brandt v. Boston Scientific Corp., 792 N.E.2d 296
(Ill. 2003), eliminates any argument that the sale of drugs is a
"sale of goods" within Article 2 of the Illinois Commercial Code.
See, e.g., Garcia v. Edgewater Hosp., 613 N.E.2d 1243
(Ill.App. Ct. 1st Dist. 1993). Brandt involved the surgical
implantation of a medical device during medical treatment at a
hospital. Such facts are quite removed from the sale of a
prescription by a pharmacy. In a nutshell, Merck has failed to
meet its heavy burden to establish fraudulent joinder.
Moreover, Merck's reliance on the Eleventh Circuit's decision
in Tapscott v. MS Dealer Service Corp., 77 F.3d 1353 (11th
Cir. 1996), overruled in part on other grounds by Cohen v.
Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000), is
wrong. See also In re Benjamin Moore & Co., 309 F.3d 296, 298
(5th Cir. 2002). This Court is familiar with the misjoinder
doctrine, but it is quite confident that whatever precedential
value Tapscott may have elsewhere, it has none in the Seventh
As stated in the other Vioxx cases which this Court has
previously remanded, the Court will not allow a case over which
it lacks jurisdiction to sit on its docket until a decision is
reached by the Judicial Panel on Multidistrict Litigation, especially after the
Court of Appeals' decision in Illinois Municipal Retirement Fund
v. CitiGroup, Inc., 391 F.3d 844, 851 (7th Cir. 2004) ("We
find nothing absurd in district courts individually evaluating
their own jurisdiction.").
Finally, the Court refuses to sever the claims as Defendants'
request, and those motions are denied. Plaintiffs are entitled to
recover their costs in seeking remand to state court, see Garbie
v. DaimlerChrysler Corp., 211 F.3d 407 (7th Cir. 2000), and
the request for fees and costs is granted.
For the foregoing reasons, the hearings set on Monday, August
29, 2005, are CANCELED, and the motions to remand are
GRANTED. The Rabe action is REMANDED to the Circuit Court
for St. Clair County, Illinois, and the Morgan action is
REMANDED to the Circuit Court for Madison County, Illinois,
pursuant to 28 U.S.C. § 1447(c). The motions to stay all
proceedings and to sever are DENIED, and the motions to
continue hearing on Plaintiffs' motions to remand are DENIED as
moot. Plaintiffs' counsel shall file an affidavit setting forth
the fees and costs incurred as a result of the removal on or
before September 9, 2005.
IT IS SO ORDERED.
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