I’ve been writing a lot lately, as a pharmaceutical injury attorney, about lawsuits against Pfizer for its role in making and selling Reglan. So I was interested to see another case against Pfizer, but this one revolving around birth defects allegedly caused by the Pfizer drug Zoloft (sertraline hydrochloride). The claims in E.D. v. Pfizer come from West Virginia, whose courts handle mass actions involving multiple plaintiffs by docketing each as an individual case. This created 19 separate cases in this action. Pfizer and co-defendant Greenstone removed 18 of the cases to federal court, citing diversity, and each plaintiff moved to remand, saying the case should have been treated like a mass action and that West Virginia separates the cases only for administrative reasons. The district court agreed, and the Fourth U.S. Circuit Court of Appeals rejected the pharmaceutical companies’ appeal for lack of jurisdiction.
Each family involved in this litigation has a child with birth defects the parents believe were caused by the mother taking Zoloft. Of the 19 families, only one, the Dropp family, is not diverse (for federal court purposes) from the pharmaceutical companies. Pursuant to a 2008 rule, the West Virginia state court docketed each family separately because they were not related to one another, but permitted them to use the same complaint and considered it all the same case. In granting the defendants’ motions to remand, the federal district court reasoned that permitting them to use the same complaint made them fundamentally the same case, and thus not improperly joined. It also ruled that the Dropps were not fraudulently joined—an alternate argument the pharmaceutical companies had against remand—because their claim arose from the same occurrences and had common questions of law and fact.
The Fourth Circuit took up the appeal, but ultimately concluded it had no authority to review the order to remand. Under 28 USC 1447(d), an order remanding a previously removed case back to state court is not reviewable, on appeal or otherwise, if it was under 1447(c)—that is, removal for lack of subject-matter jurisdiction. The appeals court agreed with the families that this removal was indeed for lack of subject-matter jurisdiction. The pharmaceutical companies argued that this case falls under an exception for when district courts remand on grounds not described by the controlling statute, but no case it cited was appropriate. The Fourth found the district court’s choice to review the Dropps’ joinder was clearly part of its consideration of subject-matter jurisdiction, and not a collateral matter that would be reviewable on its own. It dismissed the appeal.
The effect of all this is that the cases will go back to West Virginia state court, where they started and where, in my opinion as a dangerous drug lawyer, it will likely be easier for the plaintiffs. State courts generally hear dangerous drug cases, which are based on state-law causes of action, so they’re best place to understand the legal issues. State courts can also be less expensive and more convenient than federal courts, depending on where the plaintiffs live. The analysis in this appeal suggests that the drug companies’ appeal was unlikely to win, but—unlike most of plaintiffs in drug lawsuits—they had the money and legal firepower to try it anyway. As a defective drug attorney, I believe part of my job is to even the odds on behalf of ordinary people hurt by dangerous drugs.
If you or someone you love suffered serious injuries from taking a drug you thought would help, you should talk to Carey, Danis & Lowe about whether you have a case. You can reach us through our website or call toll-free at 1-877-678-3400.
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