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In Re Yasmin and Yaz (Drospirenone)

May 10, 2012

IN RE YASMIN AND YAZ (DROSPIRENONE) MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION


The opinion of the court was delivered by: David R. Herndon Chief Judge United States District Court

This Document Relates to: Judge David R. Herndon Jessica Bagley v. Bayer Corp., et al. No. 3:11- ORDER DENYING REMAND cv-20153-DRH-PMF

I. INTRODUCTION

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 DENIES plaintiff's motion to remand.

II. BACKGROUND

A. STATE COURT ACTION, REMOVAL, AND MOTIONS TO REMAND

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).*fn1 Gregerson's motion consisted of five sentences, contained no argument or explanation as to why dismissal was warranted, and did not cite to any case law (Doc. 14 p. 14). The motion requested an order dismissing plaintiff's claim against Gregerson's on the following grounds: (1) the original complaint failed to state a claim against Gregerson's for which relief could be granted; (2) the original complaint did not state a viable claim against Gregerson's; and (3) plaintiff's claims were barred by the relevant statute of limitations (Doc. 14 p. 14). Gregerson's also requested a hearing on its motion to dismiss (Doc. 14 p. 14).

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).*fn2 On that same day, the state court action was removed to the United States District Court of Alabama, Northern Division (Doc. 1).*fn3 The removing defendants contend that Gregerson's has been fraudulently joined and that diversity jurisdiction exists (Doc. 1). Approximately one week after removal, plaintiff filed a motion for remand to state court arguing that the amount in controversy was not satisfied and summarily arguing that Gregerson's was not fraudulently joined (Doc. 11).

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).

B. ORIGINAL COMPLAINT, AMENDED COMPLAINT, AND MOTION TO DISMISS

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 states that plaintiff's claims are brought pursuant to the AEMLD (Doc. 1-1 p. 1). All nine causes of action are directed against "Defendants." The term "Defendants" is defined in the original complaint as "all named Defendants, with the exception of Defendant Gregerson's Foods' Inc" (Doc. 1-1 p. 5). In other words, the term "Defendants" includes the pharmaceutical defendants and expressly excludes Gregerson's.

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:

Defendant Gregerson's conduct in this matter is actionable because as a distributor of the Yasmin, it failed to properly warn the Plaintiff of the dangerous and injurious side effects of the Yasmin product. (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 ...


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