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In Re Yasmin and Yaz (Drospirenone) Marketing , Sales Practices and Products v. Moody's Pharmacy

June 12, 2012

IN RE YASMIN AND YAZ (DROSPIRENONE) MARKETING , SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION, DANA A. MARTIN, INDEPENDENT ADMINISTRATOR OF THE ESTATE OF SOPHIA CLAIRE MARTIN, DECEASED, PLAINTIFF,
v.
MOODY'S PHARMACY, SEAMUS N. KLOOS, LESLIE SAUZEK, BAYER COR PORATION, BA YER HEALTHCARE PHARMACEUTICALS, INC., BAYER HEALTHCARE, LLC, BAYER SCHERING PHARMA AG, AND BAYER AG, DEFENDANTS.



The opinion of the court was delivered by: Herndon, Chief Judge:

This Document Relates To:

MEMORANDUM & ORDER

This matter is before the Court on plaintiff's motion to remand (Doc. 6) to which the defendants have filed a response (Doc. 12). Also before the Court is a related motion to dismiss filed by defendants K&S Pharmacies of Southern Illinois Ltd., d/b/a Moody Health Mart Pharmacy (improperly named "Moody's Pharmacy") (hereinafter "Moody's"), Seamus N. Kloos, and Leslie Sauzek (hereinafter "the Pharmacists") (Doc. 5) to which plaintiff has filed a response (Doc. 11) and defendants a reply (Doc. 13).

I. BACKGROUND

This case is part of a Multi District Litigation action, In re Yasmin and YAZ (Drospirenone) Marketing, Sales Practices and Products Liability Litigation, No. 09-MD-2100-DRH. Plaintiff, a citizen of Randolph County, Illinois, originally filed this wrongful death lawsuit in the Circuit Court for the Twentieth Judicial Circuit, St. Clair County, Illinois, alleging that plaintiff's decedent, Sophia Claire Martin, died as a result of taking the prescription oral contraceptive YAZ. Her complaint seeks, inter alia,*fn1 recovery against defendants Moody's and the Pharmacists (the non-diverse defendants) for negligence under the Illinois Survival Act (Count I) and for wrongful death (Count II). Plaintiff alleges that these defendants failed to properly warn the decedent of the risks involved in taking YAZ in light of the fact that she suffered from an arteriovenous malformation of the right lower extremity (AVM).

Defendants removed the action pursuant to 28 U.S.C. §§ 1441(b) and 1446, asserting that this Court has jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332, and further claiming that the non-diverse defendants, Moody's and the Pharmacists, were fraudulently joined to defeat federal jurisdiction. Defendants have filed a motion to dismiss (Doc. 5) seeking dismissal of the non-diverse defendants on the grounds that under Illinois law, pharmacy defendants do not have a duty to warn of all potential risks involved with prescription drugs. Plaintiff has filed a response (Doc. 12) asserting that Illinois law supports her claims against the non-diverse defendants, and therefore, this matter should be remanded to state court for trial.

In Count I of the complaint, plaintiff specifically provides:

10. At all times prior to the death of Sophia Claire Martin, Moody's Pharmacy, by and through its employee/agents, including, but not limited to Seamus N. Kloos and Leslie Sauzek, knew, or should have known, that Sophia Claire Martin, had been diagnosed with an arteriovenous malformation.

11. At all times relevant herein, the risk of hemorragh from an arteriovenous malformation was well known in the medical and related healthcare profession. Therefore, prior to the death of Sophia Claire Martin, Moody's Pharmacy, by and through its employee/agent, including Seamus N. Kloos and/or Leslie Sauzek, knew[,] or should have known that Sophia Claire Martin was at a higher risk of hemorrhage because of her arteriovenous malformation.

12. At all times relevant herein, Moody's Pharmacy, by and through its employee/agent, including Seamus N. Kloos and/or Leslie Sauzek, knew, or should have known, that the existence of an arteriovenous malformations [sic] exposed the individual, such as Sophia Claire Martin, to a higher risk of bleeding, including the formation of clots.

13. At all times relevant herein, Moody's Pharmacy, by and through its employee/agent, including Seamus N. Kloos and/or Leslie Sauzek, knew, or should have known, that there was an increased risk of complications in the use of YAZ in individuals, such as Sophia Claire Martin, who were at a higher risk of bleeding, including the formation of clots because YAZ contained a new type of progestin known as drospirenone.

14. As a pharmacy dispensing prescription drugs, Mood Moody's Pharmacy, by and through its employee/agent, including Seamus N. Kloos and/or Leslie Sauzek, knew, or should have known, that the progestin, drospirenone, had been associated with deep vein thrombosis and thus posed a higher risk for the development of clots in individuals like Sophia Claire Martin.

15. On June 23, 2009, a few days prior to her death, Sophia Claire Martin and her mother, Dana A. Martin, purchased YAZ from Moody's Pharmacy . . . .

16. Prior to and/or at the time of the purchase of YAZ from Moody's Pharmacy, Dana A. Martin had a conversation with Seamus Kloos, and specifically inquired about the use of the prescription drug YAZ for her daughter, Sophia Claire Martin. At the time of this conversation, Seamus N. Kloos was working as a pharmacist for Moody's Pharmacy and was acting within the scope of his employment for Moody's Pharmacy.

17. Upon the inquiry made to Seamus Kloos by Dana A. Martin, Mr. Kloos undertook a duty to advise Dana A. Martin, as the agent for Sophia Claire Martin, that the drug, YAZ, was an acceptable contraceptive for Sophia Claire Martin and failed to advise Dana A. Martin of the dangers associated with the use of YAZ for those individuals with potential bleeding disorders, such as Sophia Claire Martin. In fact, Seam~us Mloos affirmatively advised Dana A. Martin that YAZ would be an acceptable contraceptive for use by Sophia Claire Martin.

18. Prior to and/or at the time of the purchase of YAZ from Moody's Pharmacy, Dana A. Martin had a conversation with Seamus Kloos, and specifically inquired about the use of the prescription drug YAZ for her daughter, Sophia Claire Martin. At the time of this conversation, Seamus N. Mloos was working as a pharmacist for Moody's Pharmacy and was acting within the scope of his employment for Moody's Pharmacy.

17. Upon the inquiry made to Seamus Kloos by Dana A. Martin, Mr. Kloos undertook a duty to advise Dana A. Martin, as the agent for Sophia Claire Martin, that the drug, YAZ, was an acceptable contraceptive for Sophia Claire Martin and failed to advise Dana A. Martin of the dangers associated with the use of YAZ for those individuals with potential bleeding disorders, such as Sophia Claire Martin. In fact, Seam~us Mloos affirmatively advised Dana A. Martin that YAZ would be an acceptable contraceptive for use by Sophia Claire Martin.

18. In addition to her conversation with Seamus Kloos, prior to and/or at the time of the purchase of YAZ from Moody's Pharmacy, Dana A. Martin had a separate conversation with Leslie Sauzek. In this conversation, Dana A. Martin specifically asked Leslie Sauzek whether the prescription drug YAZ posed any special contraindications for her daughter, Sophia Claire Martin. At the time of this conversation, Leslie Sauzek was working as a pharmacist for Moody's Pharmacy and was acting within the scope of her employment for Moody's Pharmacy.

19. Upon the inquiry made to Leslie Sauzek by Dana A. Martin, Ms. Sauzek undertook a duty to advise Dana A. Martin, as the agent for Sophia Claire Martin, that the drug,YAZ, was an acceptable contraceptive for Sophia Claire Martin and failed to advise Dana A. Martin of the dangers associated with the use of YAZ for those individuals with potential bleeding disorders, such as Sophia Claire Martin. In fact, Leslie Sauzek ...


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