April 26, 2011
A recent decision by a U.S. District Court in Pennsylvania combined, in an interesting way, the issues of removal of a case to federal court and of the potential responsibility under a products liability theory of the publisher of an "education monograph" containing warnings about a prescription drug. See Slater v. Hoffman-La Roche, Inc., Civ. Action No. 10-6956, 2011 WL 1087240, at *1 (E.D. Pa. Mar. 24, 2011). The plaintiff sued the manufacturer of the acne drug Accutane, alleging that the drug had caused him to develop colitis and ulcerative colitis. The plaintiff also sued the publisher of a monograph explaining the dangers of Accutane. The plaintiff was a resident of Wisconsin, the drug manufacturer was a resident of New Jersey, and the publisher of the educational monograph was a Delaware corporation with its principal place of business in Pennsylvania. Following the plaintiff's filing in Pennsylvania state court, the defendants removed the action to the federal district court. The plaintiff moved to remand the case to the state court. The court noted that unless the publisher had been fraudulently joined, the claims against it had to be remanded, in light of the rule that removal to federal court is permissible only if none of the parties in interest properly joined and served as defendants is a citizen of the state in which the action has been brought. See 28 U.S.C. § 1441(b).
Turning to the question of improper joinder, the court observed that under the doctrine of fraudulent joinder, a defendant may remove an action if it can establish that any in-state resident or nondiverse defendant was fraudulently named or joined solely to prevent removal or to defeat federal court jurisdiction. If the court determines that joinder was fraudulent in that sense, then it can dismiss the resident or nondiverse defendant and retain jurisdiction over the remainder of the case. The court explained that joinder should be found fraudulent only if the claims against the resident or nondiverse defendant are wholly insubstantial and frivolous. In making this determination, the court was tasked with deciding whether the plaintiff could state a nonfrivolous claim against the publisher of the educational monograph warning about the dangers of Accutane.
The drug manufacturer argued that the publisher had been fraudulently joined because that party was shielded from liability by Pennsylvania's learned intermediary doctrine. The learned intermediary doctrine provides that nonphysicians such as pharmacists and drug manufacturers have no independent duty to warn about the dangers and side effects of prescription drugs. The court noted, however, that the plaintiff was not arguing that the publisher had an independent duty to warn. Instead, the plaintiff's primary theory was that the publisher had voluntarily assumed a duty to exercise due care in issuing drug warnings by virtue of the fact that it had furnished written drug information to users. The drug manufacturer argued that the plaintiff had failed to cite any Pennsylvania authority imposing such a duty on pharmacies or monograph publishers.
The court rejected the drug manufacturer's argument, concluding that the plaintiff's claims against the publisher were sufficient to overcome the assertion of fraudulent joinder. The court observed that the drug manufacturer had failed to identify any Pennsylvania case law declining to impose a duty of due care on monograph publishers or pharmacies when they voluntarily undertake to provide drug warnings to patients. Citing a Massachusetts decision, the court noted that at least one state court has held that although a pharmacy has no general duty to warn, it might undertake such a duty when it provides a detailed list of warnings or it promises to furnish information to customers. The court concluded that under such authority, a Pennsylvania state court could find that the publisher of the educational monograph had assumed a duty to the plaintiff based upon its voluntary provision of the monograph containing warnings about Accutane. Because the drug manufacturer therefore failed to establish that the plaintiff's theory was wholly frivolous, the court determined that the joinder of the publisher as a defendant had not been fraudulent.
Slater furnishes a good example of the analysis applicable to the determination of fraudulent joinder, and it does so in the context of an interesting, and as yet undeveloped, point of products liability law. In light of the fact that the first response of a manufacturer sued in state court is frequently to remove the case to federal court, Slater provides guidance as to the issues that are likely to arise and how a court may approach them.