PENNSYLVANIA RECORD

A federal judge in Philadelphia has denied a motion by out-of-state plaintiffs in a products liability case to remand the matter to a Pennsylvania state court.

Ohio residents Glenn and Lauren Boyer had filed a civil action against Pennsylvania-based Wyeth Pharmaceuticals back on Feb. 9, 2012 at the Philadelphia Court of Common Pleas.

The plaintiffs allege their infant daughter was born with birth defects and subsequently died as a result of her mother’s ingestion of the anti-depressant drug Effexor, which is manufactured by the defendant.

Wyeth legal counsel petitioned the federal court on Feb. 13 to remove the matter to the federal venue, citing diversity jurisdiction.

The removal occurred before the defendant had been officially served, court papers state.

The plaintiffs moved for remand to the Philadelphia Court of Common Pleas on the grounds that forum defendant rule precludes removal based on diversity jurisdiction where a defendant, such as Wyeth in this case, is a citizen of the state in which the civil action was filed.

In his April 25 ruling, however, U.S. District Judge Edmund V. Ludwig disagreed, ruling instead in favor of the defendant, which sought to keep the case at the federal venue.

Ludwig denied the plaintiffs’ motion for remand and request for oral argument, writing that the pre-service removal of the action by a non-forum defendant where the forum defendant had not been served prior to removal was proper under the “unambiguous language” of the Federal Rules of Civil Procedure.

The judge’s memorandum states that despite the plaintiff’s claim of Wyeth’s Pennsylvania citizenship, the drug company is actually incorporated in the State of Delaware and has headquarters in New York.

Ludwig wrote in his memorandum that “no challenge is made as to complete diversity of citizenship or the adequacy of the amount in controversy. The question is procedural, not jurisdictional.”

The memorandum shows that the plaintiffs contended remand to state court was proper because the defendant is a citizen of the state in which the original civil action was filed.

The defendant, however, responded by saying that the forum defendant rule only applies where a forum defendant has already been “properly joined and served.”

The judge wrote that in the past, courts within this district have recognized the “propriety of removal by a non-forum defendant where a forum defendant has not yet been served.”

Citing case law, Ludwig wrote that the presence of an un-served forum defendant does not prohibit removal by a non-forum defendant in cases where complete diversity exists.

“The propriety of removal is determined as of the date of removal,” the judge wrote. “Plaintiffs’ argument as to post-removal service is incorrect.”

Ludwig also cited case law in which it has been shown that the propriety of pre-service removal has been recognized.

In Wyeth’s Feb. 13 removal notice, attorneys Robert A. Limbacher and Brandon L. Goodman, of the Philadelphia firm Goodell, Devries, Leech & Dann, wrote that venue was proper in federal court because the amount in controversy likely exceeds the $50,000 jurisdictional limit in state court.

“It is apparent from the face of the complaint, and the serious injuries alleged, including the alleged wrongful death of the minor child, that the amount in controversy exceed $75,000,” attorneys for Wyeth wrote.

The plaintiffs’ complaint, which was filed by Philadelphia attorneys Thomas R. Anapol and Gregory S. Spizer, of the firm Anapol Schwartz, alleges that Lauren Boyer had taken Effexor with the assurance of her physician, who informed her that any birth defects or serious pregnancy issues associated with the use of the drug would have been “listed or emphasized” on the drug information.

“Despite the exercise of reasonable diligence in investigating the cause of the injuries, including consultations with her medical care providers, the Parent Plaintiffs were not told that Effexor could have caused the Infant Plaintiff’s injuries,” the complaint states. “Had Mrs. Boyer had been adequately warned that Effexor could cause birth defects if ingested during pregnancy, she would not have taken the drug.”

The lawsuit states that the couple’s child, Adelaide, was born suffering from life-threatening defects that quickly led to her early death.

The complaint contains counts of strict product liability for design defect, failure to warn and defective design; negligence; negligent design; fraud, misrepresentation and suppression; constructive fraud; breach of express and implied warranties; and gross negligence and malice.

The lawsuit also contains a loss of consortium count.

The plaintiffs, who reside in Lewis Center, Ohio, seek compensatory and punitive damages, as well as damages for wrongful death.

The additional defendants named in the suit are Wolters Kluwer Health Inc. and Pfizer Inc.