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J.F. v. McKesson Corp.

United States District Court, Ninth Circuit

January 17, 2014

J.F., a minor by and through her guardian ad litem, AMBER MOORE, and AMBER MOORE, individually, Plaintiffs,


JENNIFER L. THURSTON, Magistrate Judge.

J.F., by and through her guardian ad litem Amber Moore, and Amber Moore, as an individual (collectively, "Plaintiffs"), seek remand of this action Kern County Superior Court. (Doc. 6.) Plaintiffs argue this Court lacks diversity jurisdiction because Defendant McKesson is a citizen of California. SmithKline Beecham Corporation, doing business as GlaxoSmithKline, LLC ("GSK" or "Defendant") opposes the motion to remand, arguing this Court has jurisdiction because Defendant McKesson was fraudulently joined. (Doc. 17.)

The Court heard the oral arguments of the parties at the hearing held on January 14, 2014. For the reasons set forth below, Plaintiffs' motion to remand is GRANTED.

I. Factual and Procedural History

Plaintiffs initiated this action by filing a complaint on July 31, 2013, in Kern County Superior Court, Case No. S-1500-CV-279990-DRL. (Doc. 1 at 2; Doc. 1-1 at 3.) J.F. alleges her mother was prescribed "paroxetine" which "is manufactured, promoted, distributed, labeled and marketed by GSK under the trade name[s] Paxil®, Paxil Oral Suspension ®, and Paxil CR®." (Doc. 1-1 at 6, ¶¶ 20-21.) Paroxetine "is a member of the class of drugs known as selective serotonin reuptake inhibitors' or SSRIs, " and is used to treated depression in adults. ( Id., ¶ 20.) Plaintiffs allege Ms. Moore took Paxil while pregnant, and that upon Plaintiffs' "information and belief, McKesson supplied the Paxil® pills ingested by Amber Moore that caused injury to [J.F.]" ( Id. at 5-6, ¶¶ 12, 21.)

According to Plaintiffs, as a result of her mother's use of Paxil, J.F. "has been diagnosed with Chiari I Malformation, which is a congenital neural tube defect from which she continues to suffer headaches, impaired coordination, and takes daily medication." (Doc. 1-1 at 4, ¶ 2.) Further, J.F. was "diagnosed with labial adhesion, has a hormone implant in her arm, and endured corrective surgery. ( Id. ) Plaintiffs allege that at the time medication was prescribed to Ms. Moore, "GSK knew through pre-market studies and post-marketing studies and reports that Paxil® was associated with a significant increased risk of cardiac birth defects in babies whose mothers ingested Paxil®during pregnancy." ( Id. at 6, ¶ 22.) Plaintiffs allege GSK and McKesson are liable for:

(a) Carelessly and negligently designing, researching, developing, testing, inspecting, producing, manufacturing, analyzing, merchandising, advertising, promoting, labeling, distributing, marketing and selling PAXIL®;
(b) Failing to fully disclose the results of the testing and other information in its possessing regarding the possibility that PAXIL® can interfere with the proper development of an unborn fetus;
(c) Being careless and negligent in that Defendants knew or should have known that PAXIL was a substance that would be actively transported through the placenta during pregnancy and could inhibit the health and development of the fetus;
(d) Negligently and carelessly failing to adequately warn the medical community, the general public, and Plaintiffs of the dangers of using PAXIL during pregnancy;
(e) Negligently and carelessly representing that PAXIL® was safe for use during pregnancy, when, in fact, Defendants knew or should have known that it was unsafe for this use;
(f) Negligently and carelessly promoting, advertising, marking, distributing, and selling PAXIL® as safe and effective for use by pregnant women when, in fact, it was unsafe;
(g) Negligently and carelessly failing to act as a reasonable prudent drug manufacturer;
(h) Negligently and carelessly over-promoting PAXIL® in a zealous and unreasonable way, without regard to the potential danger that it poses for an unborn fetus; and
(i) [Promoting PAXIL] for use with pregnant women, despite the fact that GSK knew or should have known that PAXIL® is associated with an increased risk of congenital cardiovascular abnormalities.

(Doc. 1-1 at 10-11.) In addition, Plaintiffs allege that in spite of the dangers shown by the studies, "GSK aggressively and actively promoted Paxil®for use with pregnant women" and "even suggested that was safer and more efficacious than other SSRIs on the market, such as Prozac and Zoloft." ( Id. at 6, ¶ 23.) However, Paxil was "never approved by the FDA for use with pregnant women." ( Id., ¶ 20.)

For the foregoing acts, Plaintiffs raise the following causes of action: (1) negligence and negligence per se, (2) negligent pharmo-vigilance, (3) strict liability, (4) failure to warn, (5) breach of express warranties, (6) breach of implied warranties, (7) fraud, (8) negligent infliction of emotional distress, (9) negligent design, (10) deceit by concealment in violation of Cal. Civ. Code §§1709 and 1710, (11) negligent misrepresentation, (12) violations of Cal. Bus. & Prof. Code § 17200, (13) violations of Cal. Bus. & Prof. Code § 17500, (14) and a violation of the Consumer Legal Remedies Act as set forth in Cal. Civ. Code § 1750. ( See generally Doc. 1-1 at 3, 10-29.)

Plaintiffs filed a proof of service on August 23, 2013, indicating McKesson Corporation was served on August 21, 2013.[1] In addition, Plaintiff filed proofs of service GSK on September 24, 2013. McKesson filed its answer to the complaint on September 26, 2013. GSK filed its answer in the state court on October 21, 2013.

On October 23, 2013, GSK filed a Notice of Removal, thereby initiating the action in this Court. (Doc. 1.) GSK asserted the action was properly removed pursuant to 28 U.S.C. §§ 1332 and 1441 because this is "an action between citizens of different states in which the amount in controversy exceeds the sum or value of $75, 000, exclusive of interests and costs." (Doc. 1 at 2, ¶ 4.) According to GSK, "McKesson has not been properly joined in this lawsuit, " and as such McKesson's consent to removal was not required. ( Id. at 3, ¶¶11, 13.)

Plaintiffs filed the motion to remand now pending before the Court on November 21, 2013, asserting removal was not proper because there is not complete diversity among the parties. (Doc. 6.) GSK filed its opposition to the motion on December 23, 2013 ...

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