PENNSYLVANIA RECORD

A federal judge has granted a motion by a plaintiff in a mass tort pharmaceutical case to

remand the matter to a state trial court, agreeing with the plaintiff that the defendants’ removal to the federal venue was premature.

The plaintiff, Anthony R. Montgomery, claims he sustained injuries as a result of having taken the acne medication Accutane.

The prescription drug, which has come under scrutiny by the FDA due to psychiatric side effects, including suicide and depression, as well as a variety of stomach related ailments, is the subject of a mass tort litigation docket at the Philadelphia Court of Common Pleas that was established in June 2011, court papers show.

In his civil action, Montgomery claims he developed one or more of the following due to his use of Accutane: ulcerative colitis, Crohn’s disease, irritable bowel syndrome, rectal bleeding, diarrhea, abdominal pain and/or other injuries.

Montgomery’s complaint accuses the makers and distributors of the drug of fraudulent concealment for not making the consuming public appropriately aware of its dangers.

After filing his complaint at Philadelphia’s Court of Common Pleas, the defendants, Hoffmann-La Roche, Inc. and Roche Laboratories Inc., removed the action to the U.S. District Court for the Eastern District of Pennsylvania on the basis that non-diverse defendant Wolters Kluwer Health Inc. was fraudulently joined to the litigation.

Wolters was involved in the business of creating and marketing prescription drug information, warnings and patient education monographs, or PEMs, all of which are designed to inform consumers about the risks and side effects associated with certain pharmaceuticals.

The Roche defendants argued that joinder of Wolters was fraudulent because the plaintiff’s ingestion of Accutane from the spring of 2000 through the summer of 2001 predated Wolters’ acquisition of Medi-Span, the company that provided the PEMs at issue, and because the plaintiff has failed to plead any facts or theories supporting successor liability for Wolters.

Montgomery subsequently moved to send the matter back to state court on the basis that removal was premature and that the defendants have not met their burden to show that joinder was fraudulent.

The Roche defendants had filed a notice of removal with the federal court on June 4 of this year, after the plaintiff’s fact sheet and the master Accutane complaint had been filed in state court.

The removal notice premised subject matter jurisdiction on diversity of citizenship, alleging that joinder of non-diverse forum defendant Wolters was fraudulent.

In her July 23 memorandum, which followed oral arguments earlier in the month, U.S. District Judge Mary A. McLaughlin granted Montgomery’s motion to remand, ruling that it’s appropriate at this stage in the game to have the litigation play out in state court.

The judge went on to write that the court cannot find joinder fraudulent at this time, “because the defendants’ argument requires the Court to reject the factual allegation in the Master Long Form Complaint that Wolters prepared the Accutane PEMs.”

“Joinder is fraudulent when there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention to prosecute the action against that defendant,” McLaughlin wrote. “But if there is even a possibility that a state court would find a complaint states a cause of action against any resident defendant, then the federal court must find joinder proper and remand the case to state court.”

The judge went on to state that courts must be wary about converting a jurisdictional inquiry into an “inquiry on the merits” of a case.

McLaughlin wrote that in this specific case, the plaintiff has alleged, and the court must accept as true, that Wolters was in the PEM business, and that Wolters authored, prepared and distributed the Accutane PEM that the plaintiff received when filling his prescription.

“The defendants’ fraudulent joinder argument would require this Court to accept that Medi-Span – not Wolters, as pleaded – provided the PEMs in question to the plaintiff; that it did so before its acquisition by Wolters; and that there is no possibility of successor liability for Wolters,” McLaughlin wrote. “At this stage, the Court cannot make such a determination …”