Summary
In Ohler v. Purdue Pharma, L.P., an exception of prematurity was filed in state court to dismiss the non-diverse defendant health care providers so the claims against them could first proceed before the medical review board in compliance with the Louisiana Medical Malpractice Act.
Summary of this case from Course v. Walgreen La. Co.Opinion
CIVIL ACTION NO. 02-0757, SECTION: I/2
March 7, 2003
ORDER AND REASONS
Plaintiff, Jeffrey Ohler, and intervenors, Brenda Rodriguez, William Price, Guy Rotondi, and Christopher Kimball, filed a motion to remand this action to the state court from which it was removed. On May 14, 2002, the Court granted oral argument on the motion. After reviewing the record, the motion, memoranda of counsel and attachments thereto, as well as the law, the Court finds that oral argument is unnecessary. For the following reasons, the order granting oral argument is VACATED and the motion to remand is GRANTED.
Civil Action No. 02-757, Rec. Doc. No. 8.
Civil Action No. 02-757, Rec. Doc. No. 14.
Background
On August 22, 2001, plaintiff initially filed his petition for damages in Civil District Court for the Parish of Orleans against his treating physician, Dr. Jacqueline Cleggett-Lucas, alleging that Dr. Cleggett-Lucas committed medical malpractice by excessively prescribing narcotic pain medications, including OxyContin, Hydrocodon, Carisoprodal, Butalbital, and Alprazolam. Plaintiff also sued J.C.L. Enterprises (JCL), Dr. Cleggett-Lucas' company, seeking to hold it liable for her negligence under a respondeat superior theory.
Ohler v. Purdue Pharma, L.P., 2002 WL 88945, *1 (E.D.La. 2002) (Englehardt, J.) (Civil Action No. 01-3061).
Id.
On September 4, 2001, plaintiff filed a first supplemental and amending complaint seeking to certify four classes of persons and asserting claims against five defendants, Purdue Pharma, L.P., Purdue Pharma, Inc., Purdue Frederick Company, Partners Against Pain, and Abbott Laboratories (collectively referred to as "Purdue-Abbott"), whom plaintiff alleges manufactured, marketed, promoted, sold and/or distributed OxyContin. On September 10, 2001, Brenda Rodriguez, William Price, Guy Rotondi, and Christopher Kimball filed a petition for intervention alleging that they have a right related or connected with the object of the principal lawsuit. All of intervenors' claims are brought under state law.
Id., at *2.
Id.
Defendant, Purdue-Abbott, filed a timely notice removing this action, designated as Ohler v. Purdue Pharma, L.P., Civil Action No. 01-3061, to this court. Purdue-Abbott alleged that this Court had jurisdiction because diversity of citizenship existed. In connection with its removal, it argued that Dr. Cleggett-Lucas, the non-diverse defendant, was fraudulently joined. It also argued that this Court had jurisdiction because there existed a federal question. According to Purdue-Abbott, plaintiffs' claims were preempted by federal law because of the extensive regulation of prescription drugs by the Federal Food, Drug, and Cosmetic Act (FDCA). United States District Judge Kurt D. Englehardt granted the plaintiff's and intervenors' motion to remand, finding that the resident physician was not fraudulently joined and that the FDCA does not completely preempt all state law remedies.
Id.
Id. at *2, *7.
Id. at *7, *13-*14.
After the case was remanded to state court, a dilatory exception of prematurity was filed with respect to the medical malpractice claims against defendants, Dr. Cleggett-Lucas and JCL. These defendants alleged that because plaintiff's and intervenors' claims against them were within the scope of the Louisiana Medical Malpractice Act, they should have been submitted to a medical review panel before a lawsuit was filed against them.
Civil Action No. 02-757, attachment to Rec. Doc. No. 1.
Id.
On March 7, 2002, Orleans Parish Civil District Court Judge Rosemary Ledet entered a consent judgment sustaining Dr. Cleggett-Lucas' and JCL's dilatory exception of prematurity and dismissing them without prejudice. The consent judgment reflects that all parties stipulated that Dr. Cleggett-Lucas and JCL are qualified health care providers pursuant to the Louisiana Medical Malpractice Act, La.R.S. 40:1299.41, et seq, and that the claims against them must be dismissed without prejudice so that they can be considered by a medical review panel.
Civil Action No. 02-757, Rec. Doc. No. 2, Exh. A.
Id.
Purdue-Abbott has again removed the case to this court, arguing that the voluntary dismissal of the non-diverse parties, Dr. Cleggett-Lucas and JCL, rendered the action removable. Following this second removal, plaintiff and intervenors filed the instant motion to remand, arguing that their agreement to a consent judgment sustaining a dilatory exception of prematurity and dismissing the health care providers without prejudice was not a "voluntary" dismissal.
Civil Action 02-757, Rec. Doc. No. 1.
"Voluntary/Involuntary" Rule
In determining whether a case was properly removed, the Fifth Circuit follows the "voluntary/involuntary" dismissal rule. This rule provides that "cases, not originally removable, may become so by the voluntary (but not the involuntary) dismissal of those defendants whose presence precluded removal." Phillips v. Unijax, 625 F.2d 54, 56 (5th Cir. 1980); Weems v. Louis Dreyfus Corp., 380 F.2d 545, 546-548 (5th Cir. 1967); Perry v. McNulty, 794 F. Supp. 606, 607 (E.D. La. 1992). "It is only where plaintiff, by his voluntary act, definitely indicates his intention to abandon or discontinue the action against a nondiverse defendant that the action becomes removable." McLin v. Surqitex, Inc., 1992 WL 676801, *2 (E.D. La. 1992) (Wicker, J.), citing Aydell v. Sterns, 677 F. Supp. 877, 880 (M.D. La. 1988).
Removing defendants, Purdue-Abbott, argue that by agreeing to a consent judgment sustaining the non-diverse health care providers' dilatory exception of prematurity, the dismissal of those defendants was a voluntary, rather than an involuntary, act. In Englande v. Smithkline, 206 F. Supp.2d 815 (E.D. La. 2002) (Feldman, J.), the district court rejected this reasoning.
The plaintiff in Englande filed a complaint against certain health care providers and requested review by a medical review panel. He then filed a lawsuit in state court asserting state law claims against the same health care providers and against the manufacturer of a drug. Plaintiff dismissed without prejudice the health care providers from his lawsuit so that he could complete the medical review panel process. The Englande court, relying upon a number of Eastern District of Louisiana cases, held that the plaintiff's dismissal of health care providers was not an abandonment of his claims against them and, therefore, it was not a voluntary act.
In reaching its decision, the Englande court specifically renounced the holding in Denton v. Critikon, 781 F. Supp. 459 (M.D. La. 1991), a case cited by the removing defendants. In Denton, the district court determined that the plaintiff's voluntary dismissal of a health care provider so that he could comply with the requirements of the Louisiana Medical Malpractice Act, La.R.S. 40:1299.47(b)(1)(a)(I), was a voluntary act rendering the case removable. In declining to follow Denton, the Englande court stated:
La.R.S. 40:1299.47B(1)(a)(I) requires that "[n]o action against a health care provider . . . may be commenced in any court before the claimaints' proposed complaint has been presented to a medical review panel. . . ."
Denton stands in stark contrast to the cases in the Eastern District that interpret the voluntary-involuntary rule. The Denton court did not address the issue of whether the plaintiff's voluntary dismissal indicated an abandonment of her claim against the medical center. [Citation omitted]. Denton is inconsistent with this Court's understanding of voluntariness as explained in McLin and Kelly [v. Danek Medical, Inc., 1994 WL 321074 (E.D. La. 1994) (Beer, J.)], and it invites piecemeal litigation.
As with the plaintiffs in Kelly, Englande was complying with his duties under Louisiana law by voluntarily dismissing the health care providers. Bearing in mind that we are courts of limited jurisdiction, the better rule is that adopted by the majority of the cases in the Eastern District, and not that of Denton.206 F. Supp.2d at 818-819.
This Court agrees with Englande's rationale that the dismissal without prejudice by plaintiff of non-diverse health care providers so that the medical review process can be completed is not a "voluntary" act which renders an action removable on the basis of diversity jurisdiction. The plaintiff's and intervenors agreement to the state court consent judgment which sustained the non-diverse defendants' dilatory exception of prematurity does not equate to a "voluntary" abandonment of claims against the health care providers. Because the dismissal of the health care providers was "involuntary" and these non-diverse defendants were not fraudulently joined, the case did not become removable by the entry of the consent judgment sustaining the defendants' dilatory exception of prematurity. "Prematurity does not trump viability." Doe v. Cutter Biological, 774 F. Supp. 1001, 1004 (E.D. La. 1991) (Feldman, J.).
See Williams v. Bristol-Myers Squibb Co., 2003 WL 328310, *2 (S.D. La. 2003) (Barbier, J.); Johnson v. Scimed, Inc., 92 F. Supp.2d 587, 591-592 (W.D. La. 2000) (Payne, M.J.); Duffy v. Pendleton Memorial Methodist Hospital, 1998 WL 273114 (S.D. La. 1998) (Vance, J.); Erdey v. American Honda Co., Inc., 96 F.R.D. 593, 598-599 (M.D. La. 1983) (Parker, J.).
Ohler, 2002 WL 88945 at *7; Civil Action 01-3061, Rec. Doc. No. 31, p. 13.
Accordingly,
IT IS ORDERED that the motion of plaintiff, Jeffrey Ohler, and intervenors, Brenda Rodriguez, William Price, Guy Rotondi, and Christopher Kimball, to remand is hereby GRANTED.
IT IS FURTHER ORDERED that this civil action is hereby remanded to the Civil District Court, Parish of Orleans, State of Louisiana.