Opinion
Civil Action No. 02-1996, Section: I/2.
March 12, 2003
ORDER AND REASONS
Before the Court are the following motions:
1) The motion of defendant, Pedro N. Romaguera, M.D., to dismiss plaintiff's claims against him without prejudice pending medical panel review or to stay the proceedings pending medical panel review (Rec. Doc. No. 9);
2) The motion of plaintiff, Jason C. Williams, individually and on behalf of his minor children, Whitney Alexandra Williams, Jason Joseph Williams, and Jessica Marie Williams, to remand this action to the state court from which it was removed (Rec. Doc. No. 12); and
3) The motion of defendant, Lifemark Hospitals of Louisiana, Inc., for dismissal pursuant to F.R.C.P. 12(b)(6) (Rec. Doc. No. 21).
On July 22, 2002, the Court granted the plaintiff's request for oral argument on his motion to remand. Upon review of the record, the motion, the memoranda of counsel and attachments thereto, and the law, the Court finds that oral argument is unnecessary. The order granting oral argument is VACATED.
Rec. Doc. No. 14.
Background
On May 21, 2002, plaintiff, Jason Williams, appearing individually and on behalf of his minor children, Whitney Alexandra Williams, Jason Joseph Williams, and Jessica Marie Williams, filed a petition in the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana, alleging that he sustained injuries as a result of ingestion of and addiction to OxyContin, a prescription medication. He sued Dr. Pedro N. Romaguera, his physician who prescribed the OxyContin, and Lifemark Hospitals of Louisiana, Inc., d/b/a Madrigal Family Medicine Center, Dr. Romaguera's alleged employer, alleging that Dr. Romaguera and his nurses and/or nurses' aides committed medical malpractice in conjunction with their treatment of the plaintiff. Plaintiff also sued Purdue Pharma, Inc., Purdue Pharma, L.P., Purdue Frederick Company, and Abbott Laboratories, Inc. ("Purdue-Abbott"), the manufacturers, designers and marketers of OxyContin, alleging various state law claims.On June 27, 2002, Purdue-Abbott filed a timely notice of removal, alleging that this Court has jurisdiction because diversity of citizenship exists. Purdue-Abbott alleges that Dr. Romaguera, a health care provider defendant, is fraudulently joined. They argue that Williams' medical malpractice claim against him was prescribed on its face and that they should be allowed to conduct discovery on the prescription issue.
Rec. Doc. No. 1.
Id.
The plaintiff filed the instant motion to remand, arguing that Dr. Romaguera was not fraudulently joined and, therefore, this Court lacks subject matter jurisdiction.
Fraudulent Joinder
In B, 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 joinder' is indeed a heavy one. In order to establish that an instate 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 plaintiff's pleadings of jurisdictional facts.
663 F.3d at 549 (emphasis added) (citations omitted). This 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)
See also 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); Cavillini v. State Farm Mutual Auto Ins. Co., 44 F.3d 256, 259 (5th Cir. 1995).
Defendants, Purdue-Abbott, argue that the plaintiff's claims against Dr. Romaguera has prescribed. As the court held in Catalano v. Dr. Jacqueline Cleggett-Lucas, 2002 WL 506810 (E.D. La. 2002) (Barbier, J.):
Under the law of Louisiana, the prescriptive period for medical malpractice claims runs from the date of the plaintiff's discovery of his injury or damages. By its nature, this is often a fact-intensive inquiry; that is especially true in this case, where part of the damages plaintiff claims include(s] his alleged addiction to OxyContin, which is unlikely to have a clear-cut onset date.
And, while it is well-settled that the Court may employ a summary judgment type procedure to pierce the pleadings when considering questions of fraudulent joinder, the summary judgment procedure is insufficient to resolve the issue of prescription when the question cannot be resolved on the face of the pleadings or other undisputed facts, but instead requires a fact-based inquiry. `At a hearing on this exception of prescription, the parties are allowed to call witnesses to testify and the factfinder is allowed to weigh credibility. On summary judgment, this is prohibited.' Labbe Service Garage, Inc. v. LBM Distributors, Inc., 650 So.2d 824, 829 (La.App. 3d Cir. 1995), citing Smith v. Our Lady of the Lake Hospital, 639 So.2d 730, 751 (La. 1994) ("Summary judgment is seldom appropriate for determinations based on subjective facts, such as motive, intent, good faith, knowledge and malice.")
Because the issue of prescription will in this case involve factual questions not amenable to resolution by summary judgment, the question must be reserved for the fact-finder. Thus, defendants' affirmative defense of prescription does not preclude the remand of this case.
2002 WL 506810 at *2-*3.
The instant case is factually identical with Catalano. The prescription issue implicates factual questions which cannot be determined on a motion for summary judgment. "A district court need not and should not conduct a full scale evidentiary hearing on questions of fact affecting the ultimate issues of substantive liability in a case in order to make a preliminary determination as to the existence of subject matter jurisdiction." B, Inc.. 663 F.2d at 551.
For these reasons and for the reasons stated in Ohler v. Purdue Pharma, L.P., 2002 WL 88945 (E.D. La. 2002) (Englehardt, J.), the Court finds that there is a possibility that the plaintiff has a cause of action against Dr. Romaguera, a non-diverse health care provider and, therefore, he was not fraudulently joined. Accordingly, for the above and foregoing reasons,
See also, Hale v. Jarrot, 2002 WL 545339 at *2 (S.D. La. 2002) (Barbier, J.); Seeber v. Cleggett-Lucas, No. 02-1666, pp. 3-5 (E.D. La. 2002) (Feldman, J.); Cheramie v. Smith, No. 02-448, pp. 4-5 (S.D. La. 2002) (Lemmon, J.); Sabathe v. Phillips, No. 02-1541, pp. 4-6 (E.D. La. 2002) (Lemelle, J.)
IT IS ORDERED that motion of plaintiff, Jason Williams, individually and on behalf of his minor children, Whitney Alexandra Williams, Jason Joseph Williams, and Jessica Marie Williams, to remand this action, to remand is GRANTED. IT IS FURTHER ORDERED that the motion of defendant, Pedro N. Romaguera, M.D., to dismiss or stay is DENIED WITHOUT PREJUDICE to defendants' right to reurge the motion in state court.
IT IS FURTHER ORDERED that the motion of defendant, Lifemark Hospitals of Louisiana, Inc., for dismissal pursuant to F.R.C.P. 12(b)(6) is DENIED WITHOUT PREJUDICE to defendant's right to reurge the motion in state court.
IT IS FURTHER ORDERED that the request of defendants, Purdue Pharma, L.P., The Purdue Frederick Company, and Purdue Pharma, Inc., for leave to conduct discovery is DENIED.