Opinion
MDL Docket No. 1203, Civil Action No. 03-20206, 03-20143, 03-20142, 03-20144, 03-20145, 03-20141.
January 29, 2004
MEMORANDUM AND PRETRIAL ORDER NO.
Before the court are the motions of class members Audrey Alexander, Ida Haynes, Ruth Higginbottom, Thomas Jarrell, Cynthia Kanode, and Linda Trisvan to remand to the appropriate Virginia state courts their actions against defendants Wyeth, the physicians who have prescribed Wyeth's diet drugs Pondimin and/or Redux for them, the physicians' respective practice groups, and John Does 1-3 — anonymous detail persons and marketing representatives of Wyeth. The state court actions were captioned: Audrey Alexander v. Wyeth, et al., No. CL03-023905-00 (Va. Cir.Ct. Lynchburg filed Feb. 24, 2003); Ida Haynes v. Wyeth, et al., No. LP-2596-1 (Va. Cir.Ct. Richmond filed Oct. 30, 2002); Ruth Higginbottom v. Wyeth, et al., No. LP-2564-1 (Va. Cir.Ct. Richmond filed Oct. 25, 2002); Thomas Jarrell v. Wyeth, et al., No. LP-2664-4 (Va. Cir.Ct. Richmond filed Nov. 7, 2002); Cynthia Kanode v. Wyeth, et al., No. LP-2577-3 (Va. Cir.Ct. Richmond filed Oct. 25, 2002); Linda Trisvan v. Wyeth, et al., No. CL024996 (Va. Cir.Ct. Greensville filed Oct. 28, 2002).
Wyeth was previously known as American Home Products Corporation ("AHP").
Plaintiffs Ruth Higginbottom, Cynthia Kanode, and Linda Trisvan have also brought claims against Interneuron Pharmaceuticals, Inc. ("Interneuron"), the Massachusetts-based pharmaceutical company that promoted Redux. Because plaintiffs do not assert the joinder of Interneuron as a ground for remand, we need not address plaintiffs' claims against Interneuron.
The plaintiffs in these actions have exercised their right of back-end opt-out under the Nationwide Class Action Settlement Agreement ("Settlement Agreement") in Brown v. American Home Products Corporation, CIV.A. No. 99-20593 (E.D. Pa. Aug. 28, 2000) ("Pretrial Order ("PTO") No. 1415"), which encompassed persons who ingested Wyeth's diet drugs Pondimin and Redux. See e.g., Settlement Agreement at § IV(A), (B), and (D)(4). Under the Settlement Agreement, those who have exercised a back-end opt-out may sue Wyeth for compensatory damages in the tort system rather than obtain benefits from the AHP settlement trust. Unlike initial opt-outs, these plaintiffs were class members at the time of the approval of the class action settlement and continue to be so even though they now have separate lawsuits pending.
These six plaintiffs are all represented by the same counsel. Their motions for remand are before the undersigned as the transferee judge in MDL 1203, the mass tort litigation involving Wyeth's diet drugs commonly known as fen-phen. No federal claim for relief is alleged. Because these motions present nearly identical legal and factual issues, we will address them together.
I.
In brief summary, plaintiffs, all residents of the Commonwealth of Virginia, filed suit for injuries sustained as a result of their use of the diet drugs known as Pondimin and/or Redux. The defendant Wyeth, the manufacturer of Pondimin and Redux, is a party of diverse citizenship from the plaintiffs. The defendant physicians who have prescribed Pondimin and/or Redux for plaintiffs are residents of Virginia while the defendant physicians' respective practice groups also have their principal places of practice there. Finally, plaintiffs aver that the John Does 1-3, fictitious detail persons and marketing representatives, are adult citizens of Virginia.
Plaintiffs in their original state court pleadings claim that Wyeth is also a non-diverse defendant. Wyeth responds, and we agree, that at all relevant times, Wyeth was and still is a citizen of Delaware, where it is incorporated, and of New Jersey, where its principal place of business is located. See Notice of Removal at ¶ 6 (citing affidavit of John Alivernini, Assistant Secretary of Wyeth-Ayerst Laboratories). Plaintiffs provide no evidence to the contrary.
Specifically, plaintiffs have brought claims against the following physicians and their practice groups: Audrey Alexander claims that Thomas W. Eppes, Jr., M.D. and Central Virginia Family Physicians, Inc. prescribed Pondimin for her; Ida Haynes claims that Vanessa O. Johnson, M.D. and U.S. Medical Weight Loss Centers prescribed Pondimin for her; Ruth Higginbottom claims that Eric Joel DeMaria, M.D. prescribed Pondimin for her; Thomas Jarrell claims that James C. Barr, M.D. and Virginia Physicians, Inc. prescribed Redux for him; Cynthia Kanode claims that John R. Partridge, M.D., Corinne N. Tuckey-Larus, M.D., and Virginia Physicians for Women, Ltd. prescribed Pondimin, Redux, and/or Phentermine for her; and Linda Trisvan claims that Thomas Walker, M.D. prescribed Redux for her.
Plaintiffs originally filed their motions for judgment in the Virginia state courts between October 2002 and February 2003, more than five years after fen-phen was withdrawn from the market in September, 1997. Wyeth timely removed the actions to the several United States District Courts in Virginia. The Virginia federal courts deferred ruling on plaintiffs' remand motions, and the cases were then transferred to this court as part of MDL 1203.
An action at law before a Virginia Circuit Court is commenced by the filing of a "motion for judgment". See Va. Sup.Ct. R. 3:3 (2003).
The specific date and place of plaintiffs' filings of motions for judgment and Wyeth's removal are as follows: Audrey Alexander filed on February 24, 2003 in the Circuit Court for the City of Lynchburg, Virginia, and Wyeth removed this action to the United States District Court for the Western District of Virginia on March 19, 2003. Ida Haynes, Ruth Higginbottom, Thomas Jarrell, and Cynthia Kanode filed respectively on October 30, 2002, October 25, 2002, November 7, 2002, and October 25, 2002, all in the Circuit Court for the City of Richmond, Virginia, and Wyeth removed these actions to the United States District Court for the Eastern District of Virginia between November 12 and November 14, 2002. Linda Trisvan instituted suit on October 28, 2002 in the Circuit Court for the County of Greensville, Virginia, and Wyeth removed this action to the United States District Court for the Eastern District of Virginia on November 13, 2002.
The plaintiffs maintain that remand is appropriate because complete diversity does not exist as required under 28 U.S.C. § 1332(a). Wyeth counters that the non-diverse physicians and physicians' practice groups were fraudulently joined because the applicable two-year statute of limitations bars plaintiffs' claims against these non-diverse defendants. See VA. CODE ANN. § 8.01-243(A) (West 2003). Thus, Wyeth argues, plaintiffs' claims against the non-diverse defendants should be disregarded for purposes of determining diversity of citizenship of the parties. Plaintiffs respond that the statute of limitations has not expired because they discovered their injuries less than two years prior to filing their motions for judgment against the non-diverse defendants.
The statute of limitations is not an issue in plaintiffs' claims against Wyeth, which has waived its right to assert the statute of limitations defense in return for the plaintiffs giving up their right to sue Wyeth for "punitive, exemplary, or multiple damages." Settlement Agreement § IV.D.3.c; see PTO No. 2625 and PTO No. 2680.
II.
Under the federal removal statute, ". . . 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 defendants, to the district court. . . ." 28 U.S.C. § 1441(a). Federal district courts have original jurisdiction over all civil actions between citizens of different states if the amount in controversy exceeds $75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a)(1). Complete diversity, of course, is required. State Farm Fire Cas. Co. v. Tashire, 386 U.S. 523, 530-31 (1967). If an action originally instituted in a state court could have been brought in federal court pursuant to diversity jurisdiction, the defendants may remove it to federal court provided certain procedures are followed and certain conditions met. 28 U.S.C. § 1441 and 1446. Similarly, if the federal court subsequently determines that it does not have subject matter jurisdiction over a removed action, it must remand the action to the state court where it originated. 28 U.S.C. § 1447(c). A plaintiff or a defendant may seek to remand the case, or the court may do so on its own motion. Am. Fire Cas. Co. v. Finn, 341 U.S. 6, 16-19 (1951); 16 Moore's Federal Practice, § 107.41[1][b][i] (Matthew Bender 3d ed.); see also Moses v. Ski Shawnee, Inc., 2000 WL 1053568, at *2 (E.D. Pa. July 31, 2000).
The presence of a party fraudulently joined cannot defeat removal. Wilson v. Republic Iron Steel Co., 257 U.S. 92, 97 (1921). Under our Court of Appeals' decision in Boyer v. Snap-on Tools Corporation, 913 F.2d 108, 111 (3d Cir. 1990), joinder is fraudulent "where there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendant or seek a joint judgment."
As an MDL court sitting within the Third Circuit, we must apply our Court of Appeals' fraudulent joinder standard. See In re Korean Airlines Disaster, 829 F.2d 1171, 1174 (D.C. Cir. 1987);In re Ikon Office Solutions, Inc. Secs. Litig., 86 F. Supp.2d 481, 485 (E.D. Pa. 2000). As discussed above, we must decide whether there is a "reasonable basis in fact or colorable ground supporting the claim against the joined defendant." Boyer, 935 F.2d at 111.
We recognize that the burden on Wyeth to establish fraudulent joinder is a heavy one. See Wilson, 257 U.S. at 111. While we "must resolve all contested issues of substantive fact in favor of plaintiff," we do not take this to mean we must blindly accept whatever the party seeking remand may say no matter how incredible or how contrary to the overwhelming weight of the evidence. Id. We are also cognizant that the removal statute must be construed narrowly, and "all doubts should be resolved in favor of remand" Steel Valley Auth. v. Union Switch and Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987). The Supreme Court made it clear in Wilson that if a plaintiff contests a defendant's assertion that joinder of another defendant was a sham to defeat removal, the District Court must determine the facts from the evidence. Wilson, 257 U.S. at 98. We are not to decide automatically in favor of remand simply because some facts may be said to be in dispute.
On matters of substantive law, "[i]f there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that joinder was proper and remand the case to state court." Boyer, 913 F.2d at 111 (citation omitted). We are mindful that our inquiry into Wyeth's claim of fraudulent joinder is less searching than that permissible when a party seeks to dismiss a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Batoff v. State Farm Ins. Co., 977 F.2d 848, 852 (3d Cir. 1992); see also Gaul v. Neurocare Diagnostic, Inc., No. 02-CV-2135, 2003 WL 230800, at *2 (E.D. Pa. Jan. 1, 2003). In other words, simply because a claim against a party may ultimately be dismissed for failure to state a claim does not necessarily mean that the party was fraudulently joined. The test is whether this court thinks there is a "reasonable basis" for finding the claim to be colorable, that is, whether it is "wholly insubstantial and frivolous." Batoff, 977 F.2d at 852.
III.
The key issue for present purposes is whether the prescribing physicians and their respective practice groups, all purportedly Virginia citizens, were fraudulently joined as defendants for the purpose of destroying diversity of citizenship and preventing removal. Plaintiffs have brought claims for medical negligence against all of these non-diverse defendants.
Wyeth argues that plaintiffs' motions for judgment do not state colorable claims against these defendants because plaintiffs' claims are barred by the Virginia statute of limitations. It reads in pertinent part that "every action for personal injuries, whatever the theory of recovery, and every action for damages resulting from fraud, shall be brought within two years after the cause of action accrues." VA. CODE ANN. § 8.01-243(A). The Virginia Code further provides that "[i]n every action for which a limitation period is prescribed, the right of action shall be deemed to accrue and the prescribed limitation period shall begin to run from the date the injury is sustained in the case of injury to the person." VA. CODE ANN. § 8.01-230 (West 2003). Virginia courts have found that the injury is deemed to occur and the statute of limitations begins to run whenever any injury, however slight, is sustained. St. George v. Pariser, 484 S.E.2d 888, 889 (Va. 1997) (citation omitted). Moreover, even if a plaintiff suffers substantial effects from the injury only at a later date, the statute begins to run when the injury is first incurred. Lo v. Burke, 455 S.E.2d 9, 13 (Va. 1995).
Unlike some states that have adopted discovery rules, "Virginia law does not calculate statute of limitations in personal injury from the date of diagnosis." Wade v. Danek Medical Inc., 5 F. Supp.2d 379, 382 (E.D. Va. 1998) (citations omitted). Instead, "a cause of action can accrue before a disease . . . manifests itself by symptoms, since it is the onset of the disease itself that triggers the running of the limitation period."Hollingsworth v. Shenandoah Med. Imaging, Inc., 1996 WL 1065478, at *5 (Va. Cir.Ct. Jan. 18, 1996) (citation omitted).
Under Virginia law, a cause of action accrues when all essential elements are present. Locke v. Johns-Manville Corp., 275 S.E.2d 900, 904 (Va. 1981). Here, where the plaintiffs claim medical negligence, the cause of action accrues when (1) the defendants have a legal obligation to the plaintiffs, (2) the defendants violate or breach that duty, and (3) harm or damage occurs as a proximate result of the breach or violation. See id. Accordingly, the statue of limitations begins to run when there is injury to the plaintiffs, "without which no cause of action would come into existence." Id.
The crucial issue we must resolve is the time when the plaintiffs were first injured. See Locke, 275 S.E.2d at 905. Wyeth claims that the last possible date on which plaintiffs could have sustained injuries was September 15, 1997, or shortly thereafter, when fen-phen was pulled from the market. Plaintiffs, on the other hand, contend that their respective injuries did not accrue until they were diagnosed with various heart problems within the past two years. To determine when plaintiffs' alleged injuries occurred, it is necessary to examine the relevant medical evidence. See id. "The `time plaintiff was hurt' is to be established from available competent evidence, produced by a plaintiff or a defendant, that pinpoints the precise date of injury with a reasonable degree of medical certainty." Id. Because Wyeth claims that plaintiffs' claims are barred by the statute of limitations, it "bears the burden of proving the date on which the injury was sustained with a reasonable degree of medical certainty." St. George, 484 S.E.2d at 890. Wyeth is "not required to establish as a matter of law the exact date that the injury was first sustained; [it] need only to establish that it was more probable than not that it occurred more than two years prior to the filing of suit."Wade, 5 F. Supp.2d at 383. To support their position that their injuries occurred within two years of filing their motions for judgment, plaintiffs each submit an affidavit from either Dr. Emeki Nkadi or Dr. Peter S. Ro, board certified cardiologists, which states that "within a reasonable degree of medical probability and certainty, . . . the plaintiff in this action sustained the injury to her heart that is the basis of this lawsuit within two years prior to the filing of this suit," Nkadi Decls. at ¶ 5, or "that the plaintiff in this action was injured and became FDA+ within two years prior to the filing of this suit." Ro Decl. at ¶ 5.
Plaintiffs, in their motions for judgment, aver that their injuries are as follows: Audrey Alexander claims that an echocardiogram in May, 2002 reveals moderate mitral regurgitation as a result of her usage of Pondimin; Ida Haynes maintains that an echocardiogram in March, 2002 reveals moderate mitral regurgitation with left atrium enlargement as a result of her usage of Pondimin; Ruth Higginbottom claims that an echocardiogram in July, 2002 reveals moderate mitral regurgitation with left atrium enlargement as a result of her usage of Pondimin; Thomas Jarrell asserts that he became FDA positive (moderate or greater mitral regurgitation) within the past two years as a result of his usage of Redux; Cynthia Kanode claims that an echocardiogram in July, 2002 reveals moderate mitral regurgitation with left atrium enlargement as a result of her usage of Pondimin, Redux, and/or Phentermine; and Linda Trisvan maintains that an echocardiogram in July, 2002 reveals moderate aortic regurgitation as a result of her usage of Redux.
Plaintiff Thomas Jarrell submitted an affidavit from Dr. Ro. The rest of the plaintiffs submitted an affidavit from Dr. Nkadi.
Wyeth, on the other hand, points out that Judge Louis C. Bechtle, in PTO No. 1415, determined that Pondimin and Redux did not cause latent heart valve injuries but that the injury occurred at or near the time of last use. See PTO No. 1415, Brown v. American Home Products Corporation, CIV.A. No. 99-20593 (E.D. Pa. Aug. 28, 2000). After a full hearing, Judge Bechtle found:
Judge Bechtle was the original MDL 1203 judge who presided over the class action settlement in Brown. He retired on June 30, 2001.
Plaintiff Cynthia Kanode claims damages resulting from Redux, Pondimin, and Phentermine, "either individually or in combination." Kanode Mot. for J. at ¶ 18. Because Judge Bechtle determined in PTO No. 1415 that the ingestion of Phentermine did not cause damage, we need not address Ms. Kanode's allegations of damages resulting from Phentermine.
Pondimin and Redux were withdrawn from the market in September 1997 accompanied by an unprecedented amount of publicity which effectively warned diet drug users that they may have developed valvular lesions which could be detected through non-invasive echocardiograms. Also, these lesions are not latent. If they are going to occur, they are going to occur during drug use (or shortly thereafter) and be demonstrable on echocardiogram.
PTO No. 1415 at 41. In reaching this conclusion, Judge Bechtle considered a number of studies that tracked former Pondimin and/or Redux patients for a number of years to find that "there was no emergence of new disease after some latency period." Id. at 106-07. In addition, Judge Bechtle relied upon the experts who testified in the case, all of whom agreed that Pondimin, Redux, and the fen-phen combination "do not cause latent valvular regurgitation" and "that there is no evidence of significant progression among such patients after they cease taking the drugs." Id. at 108.
Importantly, class counsel, whom this court determined adequately represented all class members including plaintiffs here, had an opportunity but did not object to the contentions or the finding of "no latency." Judge Bechtle found that those who did object ("objectors") "presented no evidence from any study to support the contrary view that [heart disease] is either latent or that it progresses in most former patients." PTO No. 1415 at 107. Judge Bechtle carefully analyzed the studies cited by the objectors and determined that the studies did not support the objectors' argument for latency. Specifically, one study cited by the objectors found that "the prevalence and severity of [diet drug] associated [heart problems] fifteen years after exposure is similar to published reports of patients with recent exposure, suggesting a lack of significant regression or progression of [heart problems] over time." PTO No. 1415 at 129. Another study cited by the objectors similarly noted that there does not appear to be a progression of diet drug related heart problems. Id. The "competent medical evidence," as presented by Wyeth and reviewed in detail by Judge Bechtle in PTO No. 1415, establishes "with a reasonable degree of medical certainty" that the diet drugs Pondimin and Redux do not create latent injuries. Locke, 275 S.E.2d at 905.
Judge Bechtle reviewed the studies of Eichelberger and Fischer. See PTO No. 1415 at 129 (citing Ex. P-118; Ex. P-119).
Wyeth contends that the principle of collateral estoppel, that is issue preclusion, prevents the plaintiffs from relitigating the question when class members first suffered injuries from Pondimin and Redux. Collateral estoppel bars the relitigation of an issue which has already been tried between the same parties or their privies. It applies when "(1) the issue sought to be precluded [is] the same as that involved in the prior action; (2) that issue [was] actually litigated; (3) it [was] determined by a final and valid judgment; and (4) the determination [was] essential to the prior judgment." Nat'l R.R. Passenger Corp. v. Pennsylvania Public Util. Comm'n, 342 F.3d 242, 252 (3d Cir. 2003) (citation omitted).
Here, the plaintiffs are class members and were thus parties to the Settlement Agreement. The issue of latency was actually litigated in the fairness hearing and is the same issue that the plaintiffs are now raising to defeat the bar of the statute of limitations. Judge Bechtle's determination of no latency, that is that class members' injuries occurred within a short time after ingesting fen-phen, was an essential finding, for it directly affected the adequacy of class representation. See PTO No. 1415 at 104-08. Finally, PTO No. 1415, in which Judge Bechtle approved the Settlement Agreement, is a final and valid judgment, upheld on appeal. Thus, plaintiffs are collaterally estopped from relitigating the issue of latency through the affidavits of Dr. Ro and Dr. Nkadi.
Based on the record in this nationwide class action as set forth in PTO No. 1415, we find that plaintiffs' injuries were sustained and the cause of action accrued, at the latest, shortly after September 15, 1997, when fen-phen was withdrawn from the market. Plaintiffs' motions for judgment were filed in the Virginia state courts over five years after September 1997 and thus over five years after their respective physicians prescribed these drugs. Accordingly, there is "no reasonable basis in fact or colorable ground" that plaintiffs' motions for judgment against the defendant physicians and their practice groups were timely. Boyer, 913 F.2d at 111.
IV.
Plaintiffs also bring claims against John Does 1-3 — anonymous detail persons and marketing representatives of Wyeth whom plaintiffs believe to be citizens of Virginia. Plaintiffs appear to join John Does 1-3 in an effort to defeat diversity. However, the removal statute, in relevant part, provides that "the citizenship of defendants sued under fictitious names shall be disregarded." 28 U.S.C. § 1441(a). Thus, for the purposes of determining whether complete diversity exists so that these actions may remain in federal court, the citizenship of John Does 1-3 is irrelevant.
V.
Finally, we turn to the issue of whether a statute of limitations defense may be considered in support of a fraudulent joinder claim. We previously answered this question in the affirmative in PTO No. 2710 in Price v. American Home Products, CIV.A. No. 02-20229 (E.D. Pa. Jan. 17, 2003) and PTO No. 3207 inRoss v. Wyeth, et al., CIV.A. No. 03-20362 (E.D. Pa. Jan. 12, 2004), which are also part of the nationwide diet drug litigation. Because we have previously ruled on the same legal issue, we need not revisit it here. Instead, we refer the parties to our prior analysis of this issue. See e.g., PTO No. 3207 at 11-12.We find that Wyeth has met its burden of proving that the statute of limitations defense "unquestionably" precludes plaintiffs from obtaining relief from their respective physicians and the physicians' practice groups. See Gaul, supra, 2003 WL 230800, at *3. Plaintiffs' attempts to join their physicians as defendants are improper efforts to prevent Wyeth from exercising its statutory right under 28 U.S.C. § 1441 to remove cases based on diversity of citizenship to federal court. Because Wyeth has met its heavy burden of establishing fraudulent joinder, we will deny plaintiffs' motions to remand these actions to the several Virginia state courts and dismiss plaintiffs' claims against defendant physicians, their respective practice groups, and John Does 1-3. Plaintiffs' motions for costs are without merit and will be denied.
PRETRIAL ORDER NO.
AND NOW, this day of January, 2004, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:(1) the motion of plaintiff Audrey Alexander in Audrey Alexander v. Wyeth, et al., CIV.A. No. 03-20206 (E.D. Pa.) to remand to the Circuit Court for the City of Lynchburg, Virginia is DENIED;
(2) the claims against defendants Thomas W. Eppes, Jr., M.D., Central Virginia Family Physicians, Inc., and John Does 1-3 inAudrey Alexander v. Wyeth, et al. are DISMISSED;
(3) the motion of plaintiff Ida Haynes in Ida Haynes v. Wyeth, et al., CIV.A. No. 03-20143 (E.D. Pa.) to remand to the Circuit Court for the City of Richmond, Virginia is DENIED;
(4) the claims against defendants Vanessa O. Johnson, M.D., U.S. Medical Weight Loss Centers, and John Does 1-3 in Ida Haynes v. Wyeth, et al. are DISMISSED;
(5) the motion of plaintiff Ruth Higginbottom in Ruth Higginbottom v. Wyeth, et al., CIV.A. No. 03-20142 (E.D. Pa.) to remand to the Circuit Court for the City of Richmond, Virginia is DENIED;
(6) the claims against defendants Eric Joel DeMaria, M.D. and John Does 1-3 in Ruth Higginbottom v. Wyeth, et al. are DISMISSED;
(7) the motion of plaintiff Thomas Jarrell in Thomas Jarrell v. Wyeth, et al., CIV.A. No. 03-20144 (E.D. Pa.) to remand to the Circuit Court for the City of Richmond, Virginia is DENIED;
(8) the claims against defendants James C. Barr, M.D., Virginia Physicians, Inc., and John Does 1-3 in Thomas Jarrell v. Wyeth, et al. are DISMISSED;
(9) the motion of plaintiff Cynthia Kanode in Cynthia Kanode v. Wyeth, et al., CIV.A. No. 03-20145 (E.D. Pa.) to remand to the Circuit Court for the City of Richmond, Virginia is DENIED;
(10) the claims against defendants John R. Partridge, M.D., Corinne N. Tuckey-Larus, M.D., Virginia Physicians for Women, Ltd., and John Does 1-3 in Cynthia Kanode v. Wyeth, et al. are DISMISSED;
(11) the motion of plaintiff Linda Trisvan in Linda Trisvan v. Wyeth, et al., CIV.A. No. 03-20141 (E.D. Pa.) to remand to the Circuit Court for the County of Greensville, Virginia is DENIED;
(12) the claims against defendants Thomas Walker, M.D. and John Does 1-3 in Linda Trisvan v. Wyeth, et al. are DISMISSED; and
(13) the motions of all plaintiffs for costs pursuant to 28 U.S.C. § 1447(c) are DENIED.