By Miriam A. Friedman, J.D.
The manufacturer of a drug that caused injury to a patient had not proven by clear and convincing evidence that there was no possible cause of action against the treating physician, a federal district court in Alabama found in granting the patient to remand to state court on grounds of incomplete diversity. Despite "significant defects" in the patient’s complaint, the court concluded that it was properly left to the state court to determine sufficiency of the pleadings and whether the patient had, in fact, stated a claim against the physician (McKenzie v. Janssen Biotech, Inc., June 21, 2017, Steele, W.).
The patient had been prescribed Remicade, manufactured by Janssen Biotech, Inc, to treat his psoriatic arthritis; subsequently, he was diagnosed with demyelinating polyneuropathy. The patient, an Alabama resident, sued both the drug manufacturer, a Pennsylvania corporation, and the treating physician, who practiced in Alabama. In the complaint, the patient alleged state-law causes of action for strict liability due to failure to warn, negligence, breach of implied warranty, breach of express warranty, fraud, loss of consortium, and punitive damages. The manufacturer removed to federal court, claiming that the physician had been fraudulently joined solely to defeat diversity. The patient moved for remand to state court.
Fraudulent joinder. The court found the fraudulent joinder doctrine was unavailing to exclude the physician’s citizenship because the manufacturer had failed to show by clear and convincing evidence that there was no possibility the patient had asserted a colorable claim against the treating physician. Although the patient’s allegations were "patchy," they were sufficient to preclude a determination that the patient could not possibly prove a set of facts entitling them to relief from the treating physician.
The drug manufacturer’s counterarguments failed to change the court’s conclusion. Rather, the court found that there was "at least a possibility" that an Alabama court would find the negligence claim to be directed at the treating physician in addition to the manufacturer. Further, an Alabama court might determine the allegations were enough to provide the physician with fair notice of the claim. Finally, the mere presence of inconsistent or alternative factual allegations and theories of liability did not necessarily eliminate the possibility that Alabama courts would find that the patient could state a claim against the physician.
Statute of limitations. The court found that the timeliness argument, presented by the treating physician, did not establish "beyond a doubt" that the patient could not state a claim against the physician because: (1) plaintiffs were not required to negate the affirmative defense of limitations in their original complaint; (2) the original complaint was filed prior to expiration of the limitations period; (3) the "nullity" argument required factual development that had not occurred; (4) the "nullity" argument implicated questions of Alabama law and procedure that may not have been settled, and were thus properly left for state courts to decide; and (5) the physician had not shown by clear and convincing evidence that there was no possibility that an Alabama court would deem the negligence claim against him to be timely.
The case is No. 17-0111-WS-B.
Attorneys: Keith L. Altman (Excolo Law) for Tim McKenzie and Sherrie McKenzie. Joseph P. H. Babington (Helmsing, Leach, Herlong, Newman & Rouse, PC) for Janssen Biotech.
Companies: Janssen Biotech
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