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finding a "palpable connection" between a negligence claim and a product defect claim, based in part on the singular series of events alleged leading to plaintiff's death, the common questions of fact, and the overlapping issues of law
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CIVIL ACTION No. 03-640 SECTION: I/2
October 27, 2003
ORDER AND REASONS
Plaintiff, Carol Fox Bright, individually and on behalf of her minor children, moves this Court to remand this action to the 21st Judicial District Court for the Parish of Tangipahoa on the ground that diversity jurisdiction does not exist. Defendant, Purdue Frederick Company ("Purdue"), filed a notice of removal on March 5, 2003, contending that plaintiffs products liability claim against it is fraudulently misjoined with plaintiffs negligence claims against non-diverse defendants and, therefore, diversity jurisdiction exists. Defendant seeks severance of the products liability claim asserted against it from the negligence claims filed against non-diverse defendants. For the following reasons, plaintiffs motion to remand this action is GRANTED. BACKGROUND
Rec. Doc. No. 6.
Rec. Doc. No. 1, notice of removal, at 4.
On November 11, 1999, William Bright III filed this action in the 21st Judicial District Court for the Parish of Tangipahoa alleging state law negligence claims against No Cuts, Inc., a Pennsylvania corporation, and Eugene McDonald, a Louisiana citizen. The state court petition alleged that Bright was electrocuted and suffered serious personal injuries when he struck an unmarked electric service line while in the process of digging a cable television line trench on property under the care, custody and control of Eugene McDonald. Plaintiff alleged that No Cuts, Inc. was the company that failed to mark the location of the electric power service line.
Rec. Doc. No. 1, Ex. A, PL pet. for damages, ¶ 1.
P1. Pet. at ¶¶ III-V, XI. Specifically, Bright alleges that as a result of striking the electric service power line, he "sustained severe, painful and disabling injuries including injuries to his spine, nervous system, and mind." Id. at ¶ XI.
P1. Pet. ¶ VI, IX. Since the filing of plaintiff s petition for damages, No Cuts, Inc. has been dismissed from this action by judgment of the state court. Rec. Doc. No. 1, Ex. A, PI. fourth amending petition, ¶ 1(3).
The original petition has been amended four times. On July 26, 2000, the first amending petition added defendant, Johnny McDonald, a Louisiana citizen, who allegedly negligently installed the electric power lines on the property. Thereafter, Bright filed a second amending petition, adding Cleco Corporation as a defendant based on plaintiffs belief that Cleco provided the electric service to the McDonald dwelling. On January 18, 2001, plaintiff filed a third amending petition dismissing Cleco Corp. and adding as a defendant, Entergy Corporation (later amended to be Entergy Louisiana, Inc.), a "foreign" corporation.
Rec. Doc. No. 1, Ex. A, Pl. first amending petition, ¶¶ I-III.
Rec. Doc. No. 1, Ex. A, Pl. second amending petition, ¶¶ XV-XVI.
Rec. Doc. No. 1, Ex. A, PL third amending petition, ¶ I (amended in fourth amending petition, at ¶ 1(3)). Purdue asserts that Entergy Louisiana, Inc. is an entity incorporated in Louisiana. See Rec. Doc. No. 8, Def. mem. in opposition to motion to remand, at 3. Neither the plaintiff nor the defendant identifies Entergy Louisiana, Inc.'s principle place of business. However, the citizenship of this joined defendant does not alter the jurisdictional analysis in this case.
On April 22, 2002, Bright died. On January 27, 2003, a fourth amending petition was filed substituting Carol Fox Bright, individually and on behalf of her minor children, as the named plaintiff and adding Purdue as a defendant. Purdue is a pharmaceutical manufacturing corporation that manufactures and distributes the prescription pain killer, Oxycontin.
Rec. Doc. No. 1, Ex. A, PL fourth amending petition, at 1.
Id.
Rec. Doc. No. 1, Ex. A, PL fourth amending petition, ¶ XVII.
The fourth amending petition alleges that as a consequence of the injuries he sustained due to the negligence of Eugene McDonald, Jr., Johnny McDonald, and Entergy Louisiana, Inc.(the "Louisiana defendants"), Blight's physician prescribed Oxycontin and that Bright died from the toxic effects of Oxycontin on his body, including his heart and lungs. Plaintiff alleges that Oxycontin is an unreasonably dangerous product and that the Louisiana defendants' fault, together with Purdue's fault, is the legal cause of Blight's death. Plaintiff also alleges that Purdue is liable jointly, severally, and in solido with the Louisiana defendants for Blight's death.
Id. at ¶¶ XVIII-XIX. According to plaintiff, the coroner's office of Washington Parish classified Bright's death as an accidental death attributable to the toxic effects of Oxycontin. Id. at XX.
Id. at ¶¶ XXI, XXV.
Id. at ¶¶ XXVI.
Purdue maintains that, pursuant to Louisiana procedure, the claim against it is fraudulently misjoined with the negligence claims against the Louisiana defendants. Purdue asserts that, for the purpose of removal, the citizenship of the Louisiana defendants should be disregarded and that the joined products liability claim, which standing alone satisfies the requirements for diversity jurisdiction, should be severed from the negligence claims against the Louisiana defendants.
LAW AND ANALYSIS
Pursuant to 28 U.S.C. § 1441 (a), an action filed in state court may be removed to federal court if the action is one over which the federal court would have original jurisdiction. The burden of establishing federal jurisdiction is on the party seeking removal. Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 815 (5th Cir. 1993) (citing Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir. 1992)); Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988). However, removal jurisdiction is to be strictly construed as its application "deprives a state court of a case properly before it and thereby implicates important federalism concerns." Frank v. Bear Stearns Co., 128 F.3d 919, 922 (5th Cir. 1997). Accordingly, any doubts about removal must be construed against removal and in favor of remanding the case back to state court. See Vasquez v. Alto Bonito Gravel Plant Corp., 56 F.3d 689, 694 (5th Cir. 1995).
Section 1441(a) provides in pertinent part:
Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the place where such action is pending. . . .
Original federal diversity jurisdiction exists "where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States." 28 U.S.C. § 1332(a). In the present case, plaintiff does not dispute that the amount in controversy requirement is met. Nor is there any dispute that because there are Louisiana citizens on both sides of the litigation, complete diversity does not exist on the face of the pleadings. The latter fact, however, will not defeat diversity jurisdiction if the Louisiana defendants are fraudulently joined. See e.g., Rodriguez v. Sabatino, 120 F.3d 589, 591 (5th Cir. 1997).
A. Fraudulent Joinder
In 5., Inc. v. Miller Brewing Co., 663 F.2d 545 (5th Cir. 1981), the Fifth Circuit described the burden placed upon parties who remove based upon a fraudulent joinder theory:
The burden of persuasion placed upon those who cry `fraudulent joinder1 is indeed a heavy one. In order to establish that an in-state defendant has been fraudulently joined, the removing party must show either that there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court; or that there as been outright fraud in the plaintiffs pleadings of jurisdictional facts.
663 F.3d at 549 (emphasis added) (citations omitted).
See also Cavillini v. State Farm Mutual Auto Ins. Co., 44 F.3d 256, 259 (5th Cir. 1995); Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir. 1983), cert. denied, 464 U.S. 1039, 104 S.Ct. 701, 79 L.Ed.2d 166 (1984).
In determining the validity of a fraudulent joinder claim, "the district court `must evaluate all of the factual allegations in the light most favorable to the plaintiff, resolving all contested issues of substantive fact in favor of the plaintiff" Burden v. Gen. Dynamics Corp., 60 F.3d 213, 216 (5th Cir. 1995) (quoting B., Inc., 663 F.2d at 549). The court must also resolve all ambiguities in the controlling state law in the plaintiffs favor. Id. The court need not decide whether the plaintiff will actually, or even probably, prevail on the merits; it must only determine whether there is a possibility that the plaintiff may do so. Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir. 1992) (other citations omitted). "[I]f there is even a possibility that a state court would find a cause of action stated against any one of the named in-state defendants on the facts alleged by the plaintiff, then the federal court must find that the in-state defendant(s) have been properly joined, that there is incomplete diversity, and that the case must be remanded to the state courts," B., Inc., 663 F.2d at 550 (citations omitted).
Purdue does not argue that plaintiff has not stated a viable products liability claim against it. Nor does Purdue maintain that plaintiff has not stated viable negligence claims against the Louisiana defendants. Therefore, this Court need not pursue the traditional fraudulent joinder analysis. Rather, Purdue maintains that plaintiffs product liability claim has been improperly cumulated with the negligence claims filed prior to Bright's death against the Louisiana defendants. It argues that plaintiffs petition pleads two separate and unrelated actions, i.e., a "products liability action" that is removable on the basis of diversity jurisdiction and an "electrocution action" that is not removable. Consequently, the focus is on Purdue's argument that the combination of these two actions in the same lawsuit is a fraudulent misjoinder of claims that justifies disregarding the citizenship of the Louisiana defendants.
Initially, Purdue removed this action on the ground that plaintiffs claims were fraudulently misjoined pursuant to Fed.R.Civ.P. 20. See Rec. Doc. No. 1, at ¶ 5. Purdue has apparently abandoned this assertion and it instead argues only that under Louisiana law, plaintiffs claim against it is improperly cumulated with plaintiffs negligence claims.
Rec. Doc. No. 8, Def. mem. in opp., at 2.
B. Misjoinder as Fraudulent Joinder
The genesis of the "fraudulent misjoinder" theory is Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353 (11th Cir. 1996), abrogated on other grounds, Cohen v. Office Depot, 204 F.3d 1069 (11th Cir. 2000). In Tapscott, the Eleventh Circuit Court of Appeals held that a defendant's right of removal cannot be defeated by a fraudulent joinder of a resident defendant as to whom there is no allegation of joint, several or alternative liability and where claims against non-diverse defendants have "no real connection with the controversy." Id. at 1360 (citing Wilson v. Republic Iron Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 37, 66 L.Ed. 144 (1921)); see also Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998). The facts and holding of Tapscott were succinctly set forth in Jamison v. Purdue Pharma Co., 251 F. Supp.2d 1315, 1319 (S.D.Miss. 2003):
In Tapscott, the plaintiff, on behalf of a putative class, filed suit in state court against four (4) defendants, stating claims of fraud and conspiracy arising from the sale of automotive service contracts sold and financed in Alabama. Two amended complaints followed, the second adding additional plaintiffs and naming three (3) new defendants, including Lowe's Home Centers, a North Carolina corporation.
Unlike the initial and first amended complaints, which centered on automobile service contracts, the second amended complaint alleged violations arising from the sale of extended service contracts for retail products. These new "retail class" plaintiffs, all residents of Alabama, were indisputably diverse from Lowe's, but not from the original automotive class defendants, which included several Alabama residents. Additionally, none of the "retail class" plaintiffs stated claims against the original automotive contract defendants. Lowe's removed the case to the United States District Court for the Northern District of Alabama, claiming "fraudulent joinder," and filed a motion to sever the claims against Lowe's from the claims against the other defendants. The district court granted the motion to sever and remanded the action to state court as to all defendants except Lowe's.
The plaintiffs appealed the district court's order severing the claims. The Eleventh Circuit Court of Appeals upheld the order, agreeing with the district court that a mere allegation of a common business practice was insufficient to permit joinder. The court characterized the joinder of the Tapscott defendants as "improper and fraudulent joinder, bordering on a sham."Id. (alterations and emphasis in original) (internal citations omitted).
Significantly, the plaintiffs in Tapscott did not argue that the joinder of defendants was proper under Fed.R.Civ.P. 20(a). Rather, they contended that "while a court may disregard the citizenship of fraudulently joined parties, a misjoinder, no matter how egregious, is not fraudulent joinder." Tapscott, 77 F.3d at 1360. The Eleventh Circuit responded to plaintiffs' contention by first ruling that because the alleged transactions involved in the automotive class were "wholly distinct" from the alleged transactions involved in the retail class, the joinder of claims against these two distinct classes of defendants did not satisfy the permissive joinder standard of Fed.R.Civ.P. 20(a). See id. Second, the Court concluded that if plaintiffs join resident defendants who have "no real connection with the controversy," such a "[m]isjoinder may be just as fraudulent as the joinder of a resident defendant against whom a plaintiff has no possibility of a cause of action." Id. The court cautioned, however, "[w]e do not hold that mere misjoinder is fraudulent joinder, but we do agree with the district court that [the plaintiffs'] attempt to join these parties is so egregious as to constitute fraudulent joinder." Id. The Fifth Circuit Court of Appeals has recognized that, in some circumstances, the misjoinder of plaintiffs "should not be allowed to defeat diversity jurisdiction." In re Benjamin Moore Co., 309 F.3d 296, 298 (5th Cir. 2002) (per curiam).
Fed.R.Civ.P. 20(a) provides in pertinent part:
All persons joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action.
In Benjamin Moore, seventeen plaintiffs, only four of which had asserted claims that related in any way to non-diverse defendants, were joined in one action. Benjamin Moore, 309 F.3d at 298. Noting that thirteen plaintiffs may have had claims cognizable in diversity jurisdiction, the Fifth Circuit Court of Appeals stated that "it might be concluded that misjoinder of plaintiffs should not be allowed to defeat diversity jurisdiction." Id. (citing Tapscott, 77 F.3d at 1360) (emphasis supplied). Notably, while acknowledging the Tapscott principle, the Benjamin Moore Court did not elaborate on, or further define, the fraudulent misjoinder doctrine. In a subsequent related case, the Fifth Circuit again referred to the "Tapscott principle" as applying to the joinder of plaintiffs. See In re Benjamin Moore Co., 318 F.3d 626, 630-31 (5th Cir. 2003) ("Thus, without detracting from the force of the Tapscott principle that fraudulent misjoinder of plaintiffs is no more permissible than fraudulent misjoinder of defendants to circumvent diversity jurisdiction, we do not reach its application in this case."). To date, the Fifth Circuit has not elaborated on whether the fraudulent misjoinder principle applies only to the joinder of plaintiffs.
Courts analyzing fraudulent misjoinder claims under Tapscott have consistently noted that mere misjoinder does not constitute fraudulent misjoinder. See e.g., Jamison, 251 F. Supp. 2nd at 1320; Coleman v. Conseco, Inc., 238 F. Supp.2d 804, 814 (S.D.Miss 2002); Johnson v. Glaxo SmithKline, 214 F.R.D. 416, 420 (S.D.Miss. 2002); Conk v. Richards O'Neill, 77 F. Supp.2d 956, 970 (S.D.Ind. 1999); In re Diet Drugs Prods. Liab. Litig., 1999 WL 554584, at *3 (E.D.Pa. July 16, 1999); Terrebonne Parish Sch. Bd. v. Texaco, Inc., 1998 WL 160919, at *2 (E.D.La. April 3, 1998); Ren-Dan Farms, Inc. v. Monsanto Co., 952 F. Supp. 370, 375 (W.D.La. 1997). These courts have emphasized that the joinder at issue in Tapscott was particularly egregious, i.e. fraudulent, because it involved an attempt to join claims brought by one class of plaintiffs against one set of defendants with another group of factually unrelated claims brought by a second class of plaintiffs against a second group of defendants with no connection between the two groups. See e.g., Triggs, 154 F.3d at 1289 (distinguishing Tapscott because "the instant case does not involve two distinct classes that have "no real connection' to each other"); Glenn v. Purdue Pharma Co., 2003 WL 22243939, at *5 (N.D.Miss. Sept. 25, 2003) (declining to apply Tapscott because Tapscott involved two separate groups of plaintiffs and defendants with "no real connection existing between the two groups"); Jamison, 251 F. Supp.2d at 1323 (noting that because "no plaintiff in the first group stated a claim against a defendant in the second group and no plaintiff in the second group stated a claim against a defendant in the first group, there was no series of transactions or occurrences that connected these two groups11); Johnson, 214 F.R.D. at 420 (noting that "[i]n effect, two entirely distinct lawsuits had been merged into one . . .); In re Diet Drugs, 1999 WL 554584, at *3(stating that the joinder in Tapscott was "so egregious as to constitute fraudulent joinder because the transactions between certain plaintiffs and defendants had `no real connection' to the transactions involving the other party); Conk, 77 F. Supp.2d at 970 (noting that the joinder in Tapscott bordered on a "sham" because "plaintiffs' non-removable claims arising from automobile purchases were `wholly distinct' from their claims against the diverse defendant based on other retail products"); Terrebonne Parish Sch. Bd., 1998 WL 160919, at *2 (noting the Tapscott court found that "joining claims by two sets of plaintiffs against two sets of defendants involved in different transaction coupled with plaintiffs failure to allege joint liability or conspiracy was so egregious as to render the joinder fraudulent"); see also Hewitt v. AAA Ins. Co., 1999 WL 243642, at *3 (E.D.La. April 23, 1999); Ren-Dan Farms, 952 F. Supp. at375.
While the Tapscott Court was clear that "mere misjoinder" is not equivalent to fraudulent misjoinder, this aspect of the Tapscott holding has engendered confusion among courts and commentators alike.
The court expressly did not hold that "mere misjoinder is fraudulent joinder," but rather held that in that particular case the misjoinder was "so egregious as to constitute fraudulent joinder." Thus, at least under Tapscott, something more than "mere misjoinder" of parties may be required to find fraudulent misjoinder. Precisely what the "something more" is was not clearly established in Tapscott and has not been established since. In the instant cases, however, . . . the criteria for a finding of fraudulent misjoinder, whatever they may be, clearly are not satisfied.In re Bridgestone/Firestone, Inc., 260 F. Supp.2d 722, 728 (S.D.Ind. 2003).
Commentators have recognized that the Tapscott Court's statement that not all procedural misjoinder rises to the level of fraudulent joinder "injects a considerable degree of ambiguity into the holding by intimating that there is some threshold above simple misjoinder that needs to be passed to create the new form of fraudulent joinder [the Eleventh Circuit] was recognizing" and, as a consequence, "numerous additional decisions will be needed to clarify the distinction." 14B Wright, Miller Cooper, FEDERALPRACTICEPROCEDURE 3D (hereinafter "Wright") § 3723, at 657-58.
In light of this complexity, Wright Miller have proposed the following solution:
In many situations this confusion easily could be avoided by having the removing party challenge the misjoinder in state court before seeking removal. Because removal is not possible until the misjoined party that destroys removal jurisdiction is dropped from the action, the thirty-day time limit for removal (but not the overall one-year limit for diversity cases) would not begin to run until that had occurred and thus a requirement that misjoinder be addressed in the state court would not impair the ability of an individual to remove an action following the elimination of the improperly joined party.Id. at 658.
In In re Rezulin Prods. Liab. Litig., 168 F. Supp.2d 136 (S.D.N.Y 2001), the court noted that with respect to fraudulent misjoinder claims, courts "generally looked to the additional element of a bad faith attempt to defeat diversity." Id. at 147.
Unlike the other types of fraudulent joinder — lack of any possibly legally sufficient claim against the defendant or outright fraud in the pleading of jurisdictional fact — where the plaintiffs intent to defeat diversity is immaterial to showing merely colorable or bad faith allegations, see 14B WRIGHT § 3723, at 629 (citing cases), intent to destroy diversity becomes an element in fraudulent misjoinder, most likely because, unlike frivolous or false allegations, mere misjoinder of parties does not always indicate bad faith.Id. at 147 n. 52. Nevertheless, the court held that this "bad faith" or egregiousness standard did riot govern the joinder of plaintiffs in that case. Id. at 147-48. The court did acknowledge, however, that where the joinder of defendants was at issue, the principle reason for imposing a strict standard for fraudulent joinder was to protect a "plaintiffs right to choose among defendants and claims. . . ." Id.
Because the focus of the fraudulent joinder analysis is on the connection between the joined claims and parties, the relevant inquiry is whether the connection between the joined claims and parties is so tenuous so as to justify disregarding the citizenship of the joined parties upon removal. See, e.g., Triggs, 154 F.3d at 1290 (reversing district court's finding of fraudulent misjoinder of plaintiffs because "unlike Tapscott, there is a real connection between the claims of the named plaintiff and the claims which defendants seek to bifurcate and sever"); Jamison, 25 1 F. Supp.2d at 1322-23 (rejecting defendant's fraudulent joinder claim and granting remand because claims had a sufficient "logical relationship" to satisfy permissive joinder under both the federal and Mississippi joinder rules); Coleman, 238 F. Supp.2d at 817-19 (finding "collusive" misjoinder of plaintiffs under Fed.R.Civ.P. 20 and dismissing 45 out-of-state plaintiffs because their claims arose in "complete factual, temporal and geographic isolation"); In re Diet Drugs, 1999 554584, at *3 (finding fraudulent misjoinder because "[p]laintiffs' attempt to join persons from seven different states into one civil action who have absolutely no connection to each other" went "well beyond misjoinder").
Such "procedural misjoinder" [is] a plaintiffs purposeful attempt to defeat removal by joining together claims against two or more defendants where the presence of one would defeat removal and where in reality there is no sufficient factual nexus among the claims to satisfy the permissive joinder standard.Conk, 77 F. Supp.2d at 971(citing 14B Wright § 3723, at 656-57).
District courts in this circuit have declined to find that claims and parties have been fraudulently misjoined if there is a "palpable connection" between the claims and parties joined. See Terrebonne Parish Sch. Ed., 1998 WL 160919, at *3; see also Johnson, 214 F.R.D. at42Q; Ren-Dan Farms, 952 F. Supp. at 375-76. For instance, in Terrebonne Parish Sch. Bd., the plaintiff alleged a series-of transactions that could have resulted in overlapping liability among defendants though there was no single transaction joining the defendants. See id. The court held the plaintiffs' allegations sufficient to withstand the defendant's claim of fraudulent misjoinder because if defendant's conduct could have jointly or severally caused plaintiffs1 alleged damage, there was a "palpable connection" between the claims and parties joined. Id. at *2-3. Accordingly, this Court's jurisdictional inquiry is broader than simply whether the joined claims and parties comply with the technical rules of joinder. See Marble v. Am. Gen. Life and Accident Ins. Co., 996 F. Supp. 571, 574-75 (N.D.Miss. 1998) (holding that "the joinder of the defendants, . . . whether proper or improper under [Fed.R.Civ.P. 20] was not so egregious as to constitute fraudulent joinder").
Purdue argues that the plaintiffs products liability claim has been improperly cumulated with the negligence action, in violation of Louisiana procedure, and that such improper cumulation of actions constitutes fraudulent misjoinder. Whether the Louisiana Code of Civil Procedure provides the applicable analytical framework within which to analyze Purdue's fraudulent misjoinder claim appears to be an issue of first impression in the federal courts sitting in Louisiana. Purdue cites no authority for this proposition. This Court's research reveals that among the federal district courts sitting in other jurisdictions, the question of whether a claim of fraudulent joinder should be analyzed under state joinder rules or Fed.R.Civ.P. 20 is unsettled. Compare Coleman, 238 F. Supp.2d at 814-817 (examining choice of law at length and determining that "the joinder provisions of Rule 20 are procedural in nature" and, therefore, "Federal Rule 20, rather than Mississippi Rule 20, applies to the subject fraudulent misjoinder of plaintiffs issue") with In re Bridgestone/Firestone Inc., 260 F. Supp.2d 722, 729 (holding that "the relevant question in this case is whether the Mississippi Supreme Court would find that the plaintiffs in these cases were misjoined under Mississippi Rule 20") and Conk, 77 F. Supp.2d at 971 (holding that a claim of fraudulent misjoinder should be analyzed under Indiana Trial Rule 20(A)(2) rather than Fed.R.Civ.P. 20); see also Jamison, 251 F. Supp.2d at 1321 n. 6 (discussing the Conk rationale approvingly).
The Louisiana Code of Civil Procedure provides:
Two or more parties may be joined in the same suit, either as plaintiffs or as defendants, if:
(1) There is a community of interest between the parties joined;
(2) Each of the actions cumulated is within the jurisdiction of the court and is brought in the proper venue; and
(3) All of the actions cumulated are mutually consistent and employ the same form of procedure. Except as otherwise provided in Article 3657, inconsistent or mutually exclusive actions may be cumulated in the same suit if pleaded in the alternative.
La. Code Civ. P. art. 463.
The majority of the cases cited above have not addressed the choice of law issue. Rather, those courts have addressed fraudulent joinder claims pursuant to the permissive joinder standard in Fed.R.Civ.P. 20.
The courts holding that state procedural law applies to a fraudulent joinder analysis decided the issue with respect to a state rule that was textually identical to Fed.R.Civ.P. 20. See Bridgestone, 260 F. Supp.2d at 729 (noting that the text of Mississippi Rule 20 is "identical in all relevant respects," but noting that joinder is permitted pursuant to the Mississippi Rule under far broader circumstances than Fed.R.Civ.P. 20); Jamison, 251 F. Supp.2d at 1320 (same); Conk, 77 F. Supp.2d at 971 (noting that the Indiana Rules of Trial Procedure closely parallel the Federal Rules of Civil Procedure with respect to joinder of parties and claims and, therefore, "the difference between applying federal and state standards for joinder may be more theoretical than practical in this case").
This Court finds it unnecessary to reach the issue because this case, unlike Tapscott, does not present an example of "egregious" misjoinder. In Tapscott, there were multiple plaintiffs whose claims were "matched with particular defendants against whom they alleged individual claims" Tapscott, 77 F.3d at 1359. In this case, unlike Tapscott, there is one plaintiff alleging claims against all of the joined defendants. Additionally, there is a "palpable connection" between plaintiffs claims against all joined defendants. It is undisputed that plaintiff has alleged a viable negligence claim against the Louisiana defendants for damages arising from certain injuries suffered by Bright. Moreover, plaintiff has stated a products liability claim against Purdue based on Blight's ingestion of Oxycontin, a drug used to treat those injuries. In these circumstances, "it cannot be said that there is `no real connection' between the defendants." Marble, 996 F. Supp. at 574-75 (distinguishing Tapscott and holding that the joinder of the defendants does not rise to the level of fraudulent joinder where one plaintiff alleges claims against all joined defendants). Here, plaintiff alleges one series of events leading to Blight's ultimate death. Therefore, it cannot be said that there is "no real connection" between the claims or that the claim against Purdue is "wholly distinct" from the claims against the non-diverse defendants.
The cases upon which Purdue relies are unpersuasive. All three cases, In re Rezulin Prods. Liab. Litig.9 168 F. Supp.2d 136, 147-48 (S.D.N.Y 2001), Simmons v. Wyeth Labs., Inc. 1996 WL 617492, at *1 (E.D.Pa.), and In re Diet Drugs 1999 WL 554584, at *3, involved courts severing factually unrelated claims by multiple plaintiffs against various drug manufacturer defendants. Notably, Purdue has not cited any case where claims alleged by a single plaintiff against multiple defendants have been severed from a lawsuit on the basis of fraudulent misjoinder.
Nonetheless, Purdue argues that plaintiffs improper cumulation of actions in this case constitutes fraudulent joinder because 1) the facts relevant to the electrocution accident have nothing to do with the facts of the products liability action; 2) there is no common question of law between the two claims; and 3) there is no joint liability between the defendants because Purdue cannot be assigned fault for Blight's initial injuries and the non-diverse defendants, as a matter of legal cause under Louisiana law, cannot be assigned any fault for Bright's ultimate death. The Court finds that there are common questions of fact present in plaintiffs allegations. Viewing the factual allegations in the light most favorable to the plaintiff, Bright was electrocuted due to the negligence of the non-diverse defendants and, as a result, he suffered severe injuries "including injuries to his spine, nervous system, and mind." Having been prescribed Oxycontin to treat these injuries by his treating physician, Bright died due to the toxic effects of Oxycontin on his body. Plaintiff further alleges that Oxycontin is an unreasonably dangerous product because, inter alia, Oxycontin may cause death and injury as a result of foreseeable use, Purdue failed to warn consumers and physicians about the dangers of Oxycontin, and Purdue overpromoted the use of Oxycontin without regard to the risks and hazards that the drug posed to patients.
Specifically, Purdue argues the following:
In this case . . . Plaintiff has fraudulently misjoined Purdue with non-diverse defendant's by improperly cumulating two distinct actions — and "electrocution action" against non-diverse defendants and a factually and legally unrelated "products liability action" against Purdue. Based on the allegations of the amended petition, Plaintiff has no possibility of stating valid claims against Purdue in the "electrocution action," and Plaintiff has no possibility of stating valid claims against any defendant other than Purdue in the "products liability action." Because it is so clear that the two actions have no overlapping facts or legal issues and cannot be cumulated in the same lawsuit, the two actions have been fraudulently misjoinded.
Rec. Doc. No. 8, Def. mem. in opp., at 2 (emphasis in original). Although this argument is phrased in the form of a more traditional fraudulent joinder claim, the Court stresses that Purdue has not claimed that plaintiff cannot state a valid negligence claim against the non-diverse defendants. Rather, it argues that the non-diverse defendants, even if found negligent, cannot as a matter of law be liable for Bright's death.
Rec. Doc. No. 1, Ex. A, PL petition for damages, at ¶ Xl
PL fourth amending petition, ¶¶ XXI-XXIV.
Plaintiffs ability to establish that Oxycontin is unreasonably dangerous and that, in fact, Oxycontin caused Bright's death could possibly depend on Bright's physical condition at the time he ingested Oxycontin. See In re Rezulin, 168 F. Supp.2d at 146 (severing plaintiffs `pharmaceutical products liability claims because each individual claim could depend "on such variables as exposure to the drug, the patient's physical state at the time of taking the drug, and a host of other known and unknown factors that must be considered at trial with respect to each individual plaintiff). Therefore, facts regarding the nature, extent, and degree of injury caused by electrocution are common to both the negligence claims and the products liability claim.
The Court also finds that there exists a possibility of overlapping issues of law with respect to causation and damages. In 1996, the Louisiana legislature placed Louisiana in a "pure comparative fault" system. Dumas v. Dept. of Culture, Recreation Tourism, 828 So.2d 530, 535 (La. 2002). The Louisiana Civil Code "clearly requires that the fault of every person responsible for a plaintiffs injuries be compared, whether or not they are parties, regardless of the legal theory of liability asserted against each person." Id. at 537. In addition, La. Civ. Code 2324(B) clearly provides that "in non-intentional cases, liability for damages caused by two or more persons shall be a joint and divisible obligation." Id. (emphasis in original). Plaintiff alleges that Purdue is "liable jointly, severally, and in solido with the other tortfeasors in this matter for the death of William Bright, III." Therefore, the issue of the apportionment of legal fault with respect to Blight's death is a common question of law as to all joined defendants, even though the claims against the non-diverse defendants are based in negligence and the claim against Purdue is grounded in products liability.
Article 2323 of the Louisiana Civil Code, entitled "Comparative fault," provides in pertinent part:
A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty. . . . If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person, or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.
B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.
La. Civ. Code art. 2323. Article 2324, entitled "Liability as solidary or joint and divisible obligation," provides in pertinent part:
A. He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act. B. If liability is not solidary pursuant to Paragraph A, then liability for damages caused by two or more persons shall be a joint and divisible obligation. A joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarily liable with any other person for damages attributable to the fault of such other person. . . .
Purdue maintains, however, that plaintiffs claims are fraudulently misjoined because Louisiana tort law precludes the possibility that Purdue and the non-diverse defendants are joint tortfeasors. It argues that joint tortfeasor status among the joined defendants is precluded because, as a matter of legal causation, the Louisiana defendants cannot be held liable for Bright's death and that Purdue cannot be held liable for Bright's initial injuries. Purdue argues that legal causation for Bright's death is lacking with respect to the claims against the non-diverse defendants because "[n]o one . . . could reasonably expect that a person striking a power line might later use a defective product to treat pain caused by the electrocution injury, and suffer harm because of the alleged product defect."
Rec. Doc. No. 8, Def. mem. in opp., at 11. Under Louisiana law, tort liability is determined pursuant to a duty-risk analysis. Pinsonneault v. Merchants Farmers Bank Trust Co., 816 So.2d 270, 275-76 (La. 2002).
In order for liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant's substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiffs injuries (the scope of protection element); and (5) actual damages (the damage element).Id.
First, neither state nor federal rules of joinder require that the plaintiff establish joint liability as to all joined defendants, on every theory of liability, as a necessary prerequisite to joining parties and claims. See Jamison, 251 F. Supp.2d at 1323 ("[T]he defendants' argument that the allegations of the Complaint provide no basis for holding [a non-diverse] defendant jointly liable with the other defendants overlooks Rule 20's language permitting joinder of persons whose liability is allegedly joint, several, or in the alternative.") (internal quotes ommitted); Pierce v. Reily-Benton Co., Inc., 846 So.2d 143, 144 (La.App. 4th Cir. 2003) (rejecting the argument that a plaintiff need allege solidary liability as to all defendants as a prerequisite for cumulating actions under La. Code Civ. P. 463).
Second, although it is unlikely that a product defect in Oxycontin could be found to be the legal cause of Blight's initial injuries, plaintiff may be able to establish that the alleged negligence of the Louisiana defendants is a legal cause of Blight's death. Unlike common law jurisdictions, Louisiana tort law does not evaluate legal causation in terms of proximate cause, foreseeability, and intervening acts. Younger v. Mar shall Indus., Inc. M/V Mr. Jeffery, 618 So.2d 866, 872 (La. 1993). Rather, in evaluating legal causation, the Louisiana courts employ a duty-risk analysis. Id.
Under this approach, there must be a finding of causation-in-fact arid a determination of whether the law imposes a duty under the circumstances and, if so, whether the particular risk which occurred is within the scope of the protection extended by the imposition of the duty.Id. at 873.
In Weber v. Charity Hospital, 475 So.2d 1047 (La. 1985), the Louisiana Supreme Court held that the duty not to injure another person encompassed the risk that a tort victim's injuries might be worsened by the subsequent negligent medical treatment for those injuries because there was an "ease of association" between the injury and the rule of law which gave rise to the initial duty. Id. at 1050. Purdue argues that the Weber principle is inapplicable in this case because plaintiff has not alleged that Bright's injuries were worsened by subsequent medical malpractice. It insists that although courts may consider an initial tortfeasor and doctors who negligently treat the tortfeasor's victim as joint tortfeasors, the same cannot be said for tortfeasors and manufacturers of allegedly defective products.
In Dumas, the Louisiana Supreme Court held that Louisiana's pure comparative fault scheme supersedes Weber to the extent that Weber held that an initial tortfeasor was the sole legal cause of a plaintiffs harm as a matter of tort policy. Dumas, 828 So.2d at 530. However, the Dumas Court did not purport to overrule Weber to the extent that it held that the duty not to injure another included the risk that those injuries could be worsened by subsequent medical treatment.
However, in Younger, 618 So.2d at 873, the Louisiana Supreme Court adopted the "weakened condition theory" of tort liability, holding that "the duty of a tortfeasor not to injure a victim includes the risk that due to his weakened physical condition, the victim would require the assistance of a medical device or appliance to accomplish his daily tasks, and that such device might be defective, further injuring the victim." Under the "weakened condition" theory, the Court concluded that an initial tortfeasor may be held liable for a subsequent injury because there was an "ease of association" between a defendant's duty not to injure a plaintiff and the risk that a plaintiffs weakened condition would necessitate the use of a medical device and that the device would be defective thereby causing further injury. See id. at 873. Although Younger involved a tort victim's use of an allegedly defective medical device rather than an allegedly defective drug, subsequent decisions of Louisiana courts have established that Younger established a "broad basis for recovery" that extends the "weakened condition" theory beyond the use of a medical device. See Butcher v. Mount Airy Ins. Co., 741 So.2d 745, 749 (La.App. 3d Cir. 1999) (Amy, J. concurring). Applied in this case, if plaintiff proves that Blight's death was attributable to his "weakened condition" as well as the toxic effects of Oxycontin, a factfinder may find that the conduct of the Louisiana defendants was a legal cause of Bright's death.
C. Conclusion
Because a sufficient factual and legal nexus between plaintiffs claims and the joined defendants exists, there is no fraudulent misjoinder in this case. The Court emphasizes, however, that in so holding this Court does not hold that the cumulation of actions under Louisiana procedure was proper or that plaintiff will actually, or even probably, prevail on the merits with respect to the claims stated against any of the defendants either jointly or severally. Even if Purdue is correct that plaintiffs claims are improperly cumulated under Louisiana procedure, such "mere misjoinder" is more properly addressed to the state district court. See Johns on, 2147.R.D. at 421 ("Since the Court has found that . . . the joinder of the plaintiffs' claims against the [defendants], even if not proper, does not rise to the level of fraudulent joinder, the Court shall let the state court decide the issues of improper joinder and severance."); Alman v. GlaxoSmithKline Corp., 2002 WL 465202, at *4 (E.D.La.) ("Whereas `fraudulent joinder' is properly addressed by the federal District Court, the issue of'misjoinder1 is more properly addressed to the state District Court.").
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the motion of plaintiff, Carol Fox Bright, to remand is GRANTED and, pursuant to 28 U.S.C. § 1447(c), this action is REMANDED to the 21st Judicial District Court for the Parish of Tangipahoa.