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Linda Halperin, et al v. Merck

April 10, 2012


The opinion of the court was delivered by: Hon. Marvin E. Aspen


MARVIN E. ASPEN, District Judge:

In this products liability action, originally filed in the Circuit Court of Cook County, Illinois, Plaintiffs allege that they suffered catastrophic personal injuries (and for some, death) as a result of their ingestion of the prescription drug Fosamax. Plaintiffs generally allege that Defendant Merck, Sharpe & Dohme Corp. ("Merck") "designed, manufactured, marketed, advertised, distributed and sold Fosamax," (Compl. ¶ 11) while Defendant H.D. Smith Wholesale Drug Co. ("H.D. Smith") served as a wholesale drug distributor of Fosamax (id. ¶ 12). Plaintiffs' complaint asserts claims against Defendants for strict liability, negligence, and breaches of warranty.

Presently before us are three motions: (1) Plaintiffs' motion for remand to state court for lack of subject matter jurisdiction; (2) Merck's motion to stay the proceedings pending transfer of the case by the Judicial Panel on Multidistrict Litigation ("JPML") into a multi-district litigation action in the District of New Jersey; and (3) H.D. Smith's motion to dismiss the claims against it. As we find Plaintiffs' motion to remand to be dispositive, we need not address the remaining motions filed by Merck (Dkt. No. 7) and H.D. Smith (Dkt. No. 11). For the reasons set forth below, we grant Plaintiffs' motion and remand this case to the Circuit Court of Cook County.


Defendants can remove cases filed in state court to federal court pursuant to 28 U.S.C. § 1441(a) when: (1) the plaintiff properly commenced the action in state court; and (2) the federal court has original jurisdiction. See Nuclear Eng'g Co. v. Scott, 660 F.2d 241, 248 (7th Cir. 1981). A federal court has original jurisdiction where diversity of citizenship exists among all parties and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a)(1). "The party seeking removal has the burden of establishing federal jurisdiction, and federal courts should interpret the removal statute narrowly, resolving any doubt in favor of the plaintiff's choice of forum in state court." Schur v. LA Weight Loss Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009); Boyd v. Phoenix Funding Corp., 366 F.3d 524, 549 (7th Cir. 2004) ("[T]he party seeking to invoke federal jurisdiction . . . bears the burden of demonstrating that removal is proper."); Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993) ("Any doubt regarding jurisdiction should be resolved in favor of the states."); Alsup v. 3--Day Blinds, Inc., 435 F. Supp. 2d 838, 841 (S.D. Ill. 2006). Here, Defendant Merck, a citizen of New Jersey, removed the case based on diversity jurisdiction on December 21, 2011. (Notice of Removal ¶ 14.) Merck premised its removal on the theory that H.D. Smith, an Illinois citizen, was fraudulently joined in this matter. (Id. ¶¶ 15--18.)

"Diversity jurisdiction cannot be destroyed by joinder of nondiverse parties if such joinder is fraudulent." Gottlieb v. Westin Hotel Co., 990 F.2d 323, 327 (7th Cir. 1993). As Merck asserted in its removal, "[i]n determining whether there is diversity of citizenship, parties fraudulently joined are disregarded." Id. Fraudulent joinder can be established in two ways:

(1) by showing that "there is no possibility that a plaintiff can state a cause of action against nondiverse defendants in state court," or (2) by demonstrating that there was actual fraud in the plaintiff's pleading of jurisdictional facts. Id. Defendants have not argued that Plaintiffs fraudulently pled the jurisdictional facts. Accordingly, they "must show that after resolving all issues of fact and law in favor of the plaintiff, the plaintiff cannot establish a cause of action against the in-state defendant." Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992) (emphasis in original). In other words, "the district court must ask whether there is any reasonable possibility that the plaintiff could prevail against the non-diverse defendant." Schur, 577 F.3d at 764 (internal quotation omitted); Poulos, 959 F.2d at 73 (describing the analysis as an "act of prediction" whereby the court considers "if there is any reasonable possibility that a state court would rule against the non-diverse defendant"). The burden of establishing fraudulent joinder is heavy, resting with the out-of-state defendant seeking removal. Poulos, 959 F.2d at 73; see Schur, 577 F.3d at 764. In fact, courts have repeatedly stated that the test for fraudulent joinder is even more favorable to the plaintiff than the standard for deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Schur, 577 F.3d at 764 (collecting cases); see also Whelchel v. Briggs & Stratton Corp., No. 11 C 4595, 2012 WL 404499, at *4 (N.D. Ill. Feb. 7, 2012); Rutherford v. Merck & Co., 428 F. Supp. 2d 842, 847 (S.D. Ill. 2006).


In their oppositions to Plaintiffs' motion, as well as the briefing for their own motions, Defendants raise a number of arguments as to why the case against H.D. Smith must fail and diversity jurisdiction therefore exists. Many of these arguments focus on Plaintiffs' failure to warn and breach of warranty claims against Defendants. After careful review of all the materials before us, we focus on Plaintiffs' strict liability design defect claim against H.D. Smith and find that it that deprives us of jurisdiction. As a result, we will not address the merits of the parties' additional arguments, including Defendants' contention that Plaintiffs' claims based on failure to warn are preempted pursuant to PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011) (holding that plaintiffs' state law failure to warn claims against generic manufacturers were preempted), or precluded by the learned intermediary doctrine pursuant to Walton v. Bayer Corp., 643 F.3d 994 (7th Cir. 2011) (applying the doctrine to pharmacies because they have no duty to warn about all the potential side effects of a drug unless they have independent knowledge of a particular customer's susceptibilities).

A. The Design Defect Allegations

Despite Defendants' insistence (see H.D. Smith Reply ISO Mot. to Dismiss at 2--3, Merck's Resp. Opp'n Mot. to Remand n.3), the complaint plainly includes a state law strict liability claim based on defective design against H.D. Smith as well as Merck. Under longstanding Illinois law, a plaintiff pursuing a strict liability claim for design defect must allege: "(1) a condition of the product as a result of manufacturing or design, (2) that made the product unreasonably dangerous, (3) and that existed at the time the product left the defendant's control, and (4) an injury to the plaintiff, (5) that was proximately caused by the condition." Mikolajczyk v. Ford Motor Co., 231 Ill.2d 516, 543, 901 N.E.2d 329, 345 (Ill. 2008); see Sollami v. Eaton, 201 Ill.2d 1, 7, 772 N.E.2d 215, 219 (Ill. 2002); see, e.g., Suvada v. White Motor Co., 32 Ill.2d 612, 618--21, 210 N.E.2d 182, 186--87 (Ill. 1965). Here, Plaintiffs allege that Merck designed and manufactured Fosamax, which failed to perform safely when used by ordinary consumers as intended, or in a reasonably foreseeable manner, due to its defective nature. (Compl. ¶¶ 11, 13, 43--48, 53, 82, 128; see also id. ¶¶ 21--39 (alleging Fosamax's dangerous propensities as a biphosphonate, as well as Merck's failures to recognize those dangers, conduct studies and surveillance, and warn of the side effects).) H.D. Smith distributed and sold the defective Fosamax ingested by Plaintiffs and thus "was a merchant in the chain of distribution." (Id. ¶¶ 1, 8, 12. 54, 81, 127.) Plaintiffs further allege that the Fosamax manufactured by Merck and distributed by H.D. Smith "was expected to reach and did reach consumers . . . without substantial change in the condition in which it was manufactured and sold." (Id. ¶ 43.) Finally, Plaintiffs allege that, as a direct and proximate result of their long-term use of Fosamax, they suffered suppressed bone turnover, femur fractures, severe mental and physical pain and suffering, permanent injuries, and emotional distress. (Id. ¶¶ 46--48; see also id. ¶¶ 57, 84--85, 130--31.) These allegations speak to each of the required elements of a strict liability design defect claim against Defendants.

Merck concedes that Plaintiffs assert a design defect claim against it but contends that the complaint does not articulate such a claim against H.D. Smith because H.D. Smith did not "design" Fosamax. (See Merck Opp'n at 5 n.3.) This argument disregards well-settled Illinois precedent holding that "all entities in the distributive chain of an allegedly defective product, including manufacturers, sellers, wholesalers, distributors and lessors of the product, are strictly liable in product liability actions for injuries resulting from that product." Murphy v. Mancari's Chrysler Plymouth, Inc., 381 Ill. App. 3d 768, 772--73, 887 N.E.2d 569, 574 (1st Dist. 2008) (citing Kellerman v. Crowe, 199 Ill.2d 111, 113, 518 N.E.2d 116, 117 (Ill. 1987)). Strict liability attaches to all links in the distributive chain, without regard to a particular link's knowledge or culpability, because the "focus in a strict liability action is on the product." Murphy, 381 Ill. App. 3d at 773, 887 N.E.2d at 574--75. Thus, the "inability of a defendant to know of or prevent the risk is not a defense because fault is not an issue." Id. at 772, 887 N.E.2d at 574. Under Illinois law, and barring certain circumstances discussed below, H.D Smith may be liable to Plaintiffs based on Fosamax's alleged design defect despite the fact that it had no role in the actual design process.

H.D. Smith, however, contends that the Supreme Court's decision in Mensing must be extended here to bar any design defect claim asserted by Plaintiffs. (H.D. Smith Reply ISO Mot. to Dismiss at 4--5.) In Mensing, the Court considered whether federal law preempted state tort failure to warn claims brought against generic drug manufacturers. The Court found that applicable state laws imposed a duty on all drug manufacturers (brand name and generic) to adequately label their products, while federal regulations prohibited generic drug manufacturers from altering the drug safety labels established by the brand name manufacturer with the Food and Drug Administration ("FDA"). Mensing, 131 S. Ct. at 2577. The state law claims based on failure to warn were thus preempted because the generic drug ...

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