PENNSYLVANIA RECORD

A month after one federal judge granted a plaintiff’s motion to remand an Accutane

pharmaceutical case to state court, another jurist at the U.S. District Court in Philadelphia followed suit with a similar ruling.

In an Aug. 27 memorandum, U.S. District Judge Gene E.K. Pratter, of the Eastern District of Pennsylvania, granted a motion by Norman R. Eaton to remand a products liability claim against Hoffman-LaRoche and Roche Laboratories to the Philadelphia Court of Common Pleas.

U.S. District Judge Mary A. McLaughlin had issued a similar ruling in late July regarding an Accutane case filed by a different plaintiff.

In the present case, Eaton had initiated a civil action against the two defendants, as well as Wolters Kluwer Health, in the fall of 2011 over allegations that he sustained injuries after taking the medication, which is designed to treat acne.

Eaton had filed his complaint with the master Accutane mass tort litigation consolidated at Philadelphia’s Common Pleas Court.

Like the previous case handled by Judge McLaughlin, the defendants in the Eaton case soon removed the action to federal court based on diversity of jurisdiction; Hoffman-LaRoche and Roche Laboratories are based in New Jersey and Delaware while the plaintiff resides in Texas.

Wolters Kluwer, however, is based in Pennsylvania, a fact that would make removal to federal court improper unless Wolters was fraudulently joined to the litigation to defeat diversity of jurisdiction, Pratter’s memorandum states.

The judge wrote in her memorandum that Eaton’s motion to remand the matter to state court in Philadelphia was proper since Kluwer was not fraudulently joined to the lawsuit.

Pratter also agreed with Eaton’s argument that removal to the federal venue was premature because Eaton hadn’t yet filed an individual complaint within the master long form Accutane complaint.

Eaton had cited numerous cases in which a defendant attempted to remove a case after only a writ of summons had been filed and a federal court held that removal before an actual complaint is filed is improper.

“Indeed, the Third Circuit Court of Appeals has held that the language in the removal statute referring to ‘initial pleadings’ does not refer to a writ of summons, but rather to a complaint,” Pratter wrote.

The Roche defendants had argued that the master long form complaint is the “operative document.”

The defendants’ fraudulent joinder argument rests on the assumption that Medi-Span published the patient education monograph, or PEM, which is designed to inform consumers about the risks and side effects associated with a drug, dating Eaton’s ingestion of Accutane prior to the date on which Wolters Kluwer acquired Medi-Span.

However, despite the Roche defendants’ assertion that the master long form complaint alleges that Medi-Span published the PEM in question, the long form complaint does not state as much, according to the judicial memorandum.

The master long form complaint actually states that Wolters published the PEM at “all relevant times,” Pratter wrote.

The judge went on to write that while all parties spent much time in their briefs and at oral arguments over whether documents outside the complaint could be used by the court in deciding whether or not Wolters was fraudulently joined to the litigation, none of the documents speak to who published the PEM and when.

Pratter wrote that the only document integral to this issue is the master long form complaint, which pegs Wolters Kluwer as the author of the PEM in question, and leaves open the possibility that Eaton has a claim against Wolters.

“Therefore, regardless of the great likelihood that his case would and should benefit greatly if allowed to proceed in federal court, this Court must remand this action to state court,” Pratter wrote.

Accutane is a drug that was designed to treat acne, but one that has come under FDA scrutiny due to psychiatric side effects, such as suicide and depression, as well as a variety of stomach ailments.

It is the subject of both a mass tort docket at Philadelphia’s Common Pleas Court and an MDL (Multi District Litigation) docket at the U.S. District Court for the Middle District of Florida.