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In re Prempro Products Liability Litigation

March 21, 2007

IN RE: PREMPRO PRODUCTS LIABILITY LITIGATION
JUANITA BROWNING AND WILLIAM BROWNING PLAINTIFFS
v.
WYETH, ET AL. DEFENDANTS



The opinion of the court was delivered by: Wm. R.Wilson, Jr. United States District Judge

ORDER

Pending is Plaintiffs' Motion to Remand (Doc. No. 5). Defendants have responded*fn1 and Plaintiffs have replied.*fn2

Argument was heard at the December 15, 2006 status conference and the parties submitted follow-up briefs.*fn3

Plaintiffs assert that this case should be remanded to Kentucky's Pike Circuit Court for want of diversity jurisdiction.

BACKGROUND

Plaintiff, Juanita Browning, has breast cancer, which she alleges is "a result of Defendants' collective negligence."*fn4 The named Defendants include several manufacturers of HRT drugs,*fn5 pharmacies,*fn6 and several health care providers.*fn7 The complaint asserts strict liability, negligence, misleading advertising and promotion, and misrepresentation claims against both the drug manufacturers and the pharmacies. Against the physicians, Plaintiffs assert a claim of medical negligence.*fn8

The pharmacies and physicians are non-diverse parties. However, the drug manufacturers contend that the pharmacies are fraudulently joined and the physicians are misjoinded.

DISCUSSION

A. Fraudulent Misjoinder of Physicians

Under Rule 20(a), there are two requirements for establishing joinder of claims: (1) there must be a common question of law or fact, and (2) the case must arise out of the same transaction, occurrence, or series of transactions or occurrences.*fn9 Fraudulent misjoinder exists when a plaintiff sues both diverse and nondiverse defendants in state court, even though there is "no joint, several or alternative liability and . . . the claim against the diverse defendant has no real connection to the claim against the nondiverse defendant."*fn10

The parties have vigorously debated the adequacy of Plaintiffs' complaint. For example, the complaint initially fails to allege that Dr. Liu prescribed HRT medication to Plaintiff. While the complaint is nowise a model for the form books, that issue does not ease my concern regarding the joinder of the physicians. In later pleadings, Plaintiff asserts that Dr. Liu was the prescribing physician. These Defendants probably should not be separated, because, when the time for apportioning fault comes, the drug manufacturers and the physicians may well blame each other.

B. Fraudulent Joinder of Pharmacies

Although I am dubious about whether the claims against the pharmacy defendants are properly joined, I am without jurisdiction to address the ...


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