Opinion
CIVIL ACTION NO. 3:02-CV-1772WS
September 30, 2003
ORDER GRANTING MOTION TO REMAND
Before this court is plaintiffs' motion to remand this case to the Circuit Court of Hinds County, Mississippi ( Docket No. 16-1), brought under Title 28 U.S.C. § 1447(c). The plaintiffs, all Mississippi residents, brought this lawsuit on behalf of Jabari Rashad Byrd, a minor child, and on their own behalf against the following defendants: the manufacturers of childhood vaccines which contain the preservative thimerosal; the pharmaceutical companies who dispensed those vaccines; the physician who prescribed the vaccine, a resident of Mississippi; and the Methodist Healthcare-Jackson Hospitals; The Newborn Group., P.A. a Mississippi corporation and Mississippi professional association; and three John Doe defendants.
The complaint does not designate which judicial district of Hinds County.
Title 28 U.S.C. § 1447(c) states that "[a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a)."
The complaint raises claims of strict liability in tort; negligence in manufacture, marketing and sale; gross negligence; medical malpractice; fraud and conspiracy; and negligent marketing and design of the preservative known as thimerosal. No claims under federal law are asserted.
Thimerosal is a mercury-containing organic compound which has been used widely as a preservative in a number of biological and drug products, including many vaccines, to help prevent potentially life threatening contamination from harmful microbes. See United States Food Drug Administration Vaccine Adverse Event Reporting System (VAERS).
The complaint charges that the minor plaintiff, Jabari Rashad Byrd, now suffers from mercury poisoning resulting from the injections of a vaccine preserved with thimerosal. The plaintiffs seek compensatory damages and punitive damages, plus costs and interest; however, the complaint, obedient to Title 42 U.S.C. § 300aa-11(2)(A), states that the plaintiffs seek only $999.00 from the defendants Aventis Pasteur, GlaxoSmithKline, Merck, and Wyeth.
Title 42 U.S.C. § 300aa-11(2)(A) provides in pertinent part that, "[n]o person may bring a civil action for damages in an amount greater than $1,000 or in an unspecified amount against a vaccine administrator or manufacturer in a State or Federal court for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988, and no such court may award damages in an amount greater than $1,000 in a civil action for damages for such a vaccine-related injury or death, unless a petition has been filed, in accordance with section 300aa-16 of this title, for compensation under the Program for such injury or death and — (i)(1) the United States Court of Federal Claims has issued a judgment under section 300aa-12 of this title on such petition.
This lawsuit was removed to federal court by the diverse manufacturing defendants in accordance with Title 28 U.S.C. § 1441 (a). These defendants contend that this court has subject matter jurisdiction over this case under the authority of Title 28 U.S.C. § 1332 , diversity of citizenship. The defendants assert that Methodist Healthcare-Jackson Hospitals, The Newborn Group and John E. Rawson, residents of the State of Mississippi, have been fraudulently joined in order to defeat this court's subject matter jurisdiction. The defendants also contend that this case is governed by the provisions of Title 42 U.S.C. § 300aa-1 et seq., the National Childhood Vaccine Injury Act of 1986. Thus, the defendants also premise this court's jurisdiction over this case upon Title 28 U.S.C. § 1331, federal question.
Title 28 U.S.C. § 1441 (a) states in pertinent part that, "[e]xcept as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending."
Title 28 U.S.C. § 1332(a) provides in pertinent part that, "[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between — (1) citizens of different States; . . ."
Title 28 U.S.C. § 1331 provides that, "[t]he district courts shall have original jurisdiction of all civil cases arising under the Constitution, laws, or treaties of the United States."
The defendants Eli Lilly and Company, the Sigma-Aldrich defendants, and the remaining defendants who have denominated themselves as the "vaccine defendants" also have submitted their respective motions to dismiss [Docket Nos. 3-1, 4-1, 5-1 and 7-1]. Inasmuch as this court has determined that the instant case must be remanded to state court, the motions to dismiss shall be denied.
The Fifth Circuit's Recent Decision in Collins
On September 9, 2003, the United States Court of Appeals for the Fifth Circuit issued a panel decision in the case of Collins v. American Home Products Corporation, Nos. 02-60736 and 02-60764, 2003 WL 21998574 (5th Cir. Sept. 9, 2003). In Collins, the Mississippi resident plaintiffs brought products liability claims on behalf of their minor children and themselves, against manufacturer of childhood vaccines containing the preservative thimerosal, against the pharmacies who dispensed those vaccines, and against the physicians who prescribed them.
The lawsuits then were removed to federal court by the diverse defendants. The United States District Court for the Southern District of Mississippi, Honorable Tom S. Lee, Chief Judge, denied the plaintiffs' motions to remand based on fraudulent joinder and dismissed the plaintiffs' remaining claims against the diverse defendants based on plaintiffs' failure to comply with the National Childhood Vaccine Injury Act.
The Fifth Circuit reversed this finding, stating that by ruling on a common defense when determining fraudulent joinder, the district court had impermissibly engaged in a merits determination which should be made by the state court. Said the Court, "[a]s we stated in Smallwood, "[t]his use of fraudulent joinder frustrates the overarching principle of the well-pleaded complaint rule, that state courts are equally competent to decide federal defenses." Collins at *5; see also id. at *4 n. 35 (citing Cheskiewicz ex rel. Cheskiewicz v. Aventis Pasteur, Inc., No. 02-3583, 2002 WL 1880524, at *3 (E.D. Pa. Aug.15, 2002) (unpublished)).
The Fifth Circuit then vacated and remanded the district court's decision with the direction to remand the lawsuits to state court. The Fifth Circuit in Collins opined that, "subject-matter delineations must be policed by the courts on their own initiative even at the highest level." Ruhrgas AG v. Marathon Oil Company, 526 U.S. 574, 583, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). "In a recent opinion," said the Fifth Circuit, "this Court applied the following holding from the Third Circuit's decision in Boyer v. Snap-On Tools Corporation, 913 F.2d 108 (3d Cir. 1990): [W]here there are colorable claims or defenses asserted against or by diverse and non-diverse defendants alike, the court may not find that the non-diverse parties were fraudulently joined based on its view of the merits of those claims or defenses. Instead, that is a merits determination which must be made by the state court." See Collins, citing Smallwood v. III. Cent R.R. Co., No. 02-60782, — F.3d ___, ___, 2003 WL 21805636, at *3 (5th Cir. Aug. 7, 2003) (quoting Boyer, 913 F.2d at 113).
In the Fifth Circuit's view, the defendants in Collins successfully had convinced the district court to rule on a common defense under the auspices of determining whether the Mississippi defendants had been fraudulently joined.
This Court's Conclusion in Light of the Collins Decision
The Fifth Circuit's panel decision in Collins is now the controlling decision with regard to the posture of the instant case. Certainly, there are colorable claims asserted against the diverse and non-diverse defendants alike in the instant case, and this court may not find that the non-diverse parties were fraudulently joined based on its view of the merits of either the plaintiffs' claims or the defenses raised against these claims. Inasmuch as the Fifth Circuit in Collins has directed the lawsuits in that case to be remanded to state court, this court shall follow suit. The plaintiffs' motion to remand this case to the Circuit Court of Hinds County, Mississippi [Docket No. 16-1] is granted. The various motions of the defendants to dismiss [Docket Nos. 3-1, 4-1, 5-1, and 7-1] are denied, but without prejudice to their being raised again in state court. The motions to stay [Docket Nos. 5-2 and 9-1] are terminated as moot.