Appropriately – since here in Philadelphia we’re being snowed in (again) – today’s post concerns Winters v. Alza Corp., 2010 WL 446451, slip op. (S.D.N.Y. Feb. 4, 2010). Winters is an example of how remand motions should be decided – when federal courts don’t elevate docket control uber alles.
Winters is was originally filed in New York state court, as a wrongful death action allegedly concerning a combination drug/device called Duragesic. This product delivers pain medication (fentanyl) through the skin by means of a patch. Fentanyl’s been around forever, so there are both brand-name and generic versions of this patch. That fact becomes important, so remember it.
Anyway, like most plaintiffs, this one would rather be in state court than federal, so in addition to suing the patch’s manufacturer he sues the drugstore that filled the prescription for the patch. The manufacturer says that’s a no-no – there’s no possible claim against a pharmacist who correctly fills a prescription under New York law – and removes the case to federal court. That raises an issue of “fraudulent joinder” (which isn’t really fraudulent in the sense that anybody’s lying or something like that – the opinion discusses this on pp. 6-7).
“Fraudulent joinder” is just the name that’s attached to the argument that a nominally in-state defendant can be ignored for removal/diversity jurisdiction purposes because the plaintiff can’t possibly assert a valid claim. That’s a pretty stringent standard for a defendant to meet. It’s not just “failure to state a claim” under Rule 12, but closer to a “no way in Hell” standard.
And that’s what the court found in Winters. No way in Hell (technically no “possibility of recovery, however slim,” slip op. at 7) could plaintiff state a claim against a pharmacist. Under the learned intermediary rule, all warnings to patients must be funnelled through prescribing physicians. Just as drug companies have no duty to warn patients, neither do pharmacies. All pharmacies have to do is fill prescriptions accurately. There was no allegation that the pharmacy here provided the wrong product, or that the product was tainted in any way with impurities. Slip op. at 9. In particular “a pharmacist does not have a duty to inspect or test a prescription drug for latent dangers.” Id.
Plaintiff proposed a novel duty – that a pharmacist must “fill a prescription with the safer of two competing products . . . even if both products are FDA approved.” Slip op. at 9. Of course, every plaintiff would allege (of course, inconsistently) that the product s/he got was the “less safe” one. Fortunately, no court anywhere (not even in California) has ever bought that one:
[T]he plaintiff has failed to locate a single case in any jurisdiction where a court has actually used his proposed theory to hold a pharmacy liable for negligence. If the plaintiff’s claim were legally tenable, we might reasonably expect at least one court to have used his theory to hold a pharmacist liable.
Slip op. at 11.
In addition, since New York has a law allowing pharmacists to fill prescriptions with generic drugs unless the physician prohibits it (which didn’t happen here), the court held that the supposed “duty” could not be “harmonize[d]” with that statutory scheme. Slip op. at 11-12.
Finally, the court concluded that plaintiff’s novel duty was a lousy idea:
[Plaintiff’s theory] would also impose a duty on pharmacists that is grossly disproportional to their limited degree of expertise – which entails competently dispensing drugs as directed, with appropriate instructions for customers, while monitoring for contraindications.
The plaintiff’s theory of liability also requires every pharmacist to act as a sort of shadow FDA, making decisions about what types of drugs are and are not safe for the public as a general matter.
Slip op. at 13-14.
Because the plaintiffs had no theory of liability upon which the pharmacist defendant could be liable, there was fraudulent joinder, the citizenship of the pharmacist was ignored, and the case was properly in federal court. Slip op. at 15. Not only that, the dismissal was a decision on the merits, and plaintiff would not get a second bite at the apple in state court with the same untenable theory. Id. at 16-17.
That’s the way we think fraudulent joinder remands should be conducted: Is there any possible claim against the defendant? If not, then joinder is fraudulent. Sadly, that’s not always the case. Southern District of New York? Yes. Lots of other places? Yes. But contrast the result in Winters to the identical situation when bogus pharmacy liability is asserted in the Southern District of Illinois. Illinois, like New York, definitively rejects pharmacy liability unless the pharmacist actually does something wrong. Frye v. Medicare-Galser Corp., 605 N.E.2d 557, 559-61 (Ill. 1992); Kasin v. Osco Drug, Inc., 727 N.E.2d 77, 78-79 (Ill. App. 2000); Fakhouri v. Taylor, 618 N.E.2d 518, 519-22 (Ill. App. 1993); Leesley v. West, 518 N.E.2d 758, 761-63 (Ill. App. 1988); Eldridge v. Eli Lilly & Co., 485 N.E.2d 551, 553 (Ill. App. 1985). However, the judges of the Southern District of Illinois have made up various additional tests – the claim involves considering evidence, the claim concerns the same facts as a viable claim against a manufacturer – that have nothing to do with fraudulent joinder as applied anywhere else. See, e.g., Robinson v Ortho-McNeil Pharmaceutical, Inc., 533 F. Supp.2d 838, 841-43 (S.D. Ill. 2008).
So what’s going on in Illinois? Well, we’ve learned long ago not to ascribe to malevolence what can be perfectly well explained by other factors, so we’re not going to accuse the bench there of being in cahoots with plaintiffs to keep cases in the various Hellholes, wannabe Hellholes, and used-to-be Hellholes that dot southern Illinois (Madison Co., St Clair Co., etc.). Nope, we think that in the Southern District of Illinois, docket management has been allowed to trump the law. There are literally dozens of these removal/remand cases involving in-state pharmacists, since so many cases are filed in the Hellholes. In none of them is a claim asserted that could survive Frye, et al. But if the law of fraudulent joinder were applied straight up, as in cases such as Winter, a flood of cases seeking to escape the Hellholes would swamp the federal docket. To prevent that, the judges of the Southern District of Illinois have created a unique analysis of fraudulent joinder in pharmacist cases that imposes several obstacles that have nothing to do with whether there’s any way in Hell the plaintiff has a viable claim.
The Southern District of Illinois has gotten away with it, too – thanks to it being virtually impossible to appeal from a remand order. But just because a court doesn’t get reversed, doesn’t make what it does right. That’s why we’re glad for decisions such as Winters which apply fraudulent joinder in a fashion that reflects the underlying purposes of the doctrine – which isn’t to keep federal dockets light no matter what.
Finally, thanks to a faithful reader (who shall remain nameless, but you know who you are) for providing us with Winters.