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In re Zofran (Ondansetron) Products Liability Litigation

United States District Court, D. Massachusetts

May 4, 2016

GLAXOSMITHKLINE LLC, 1:15-cv-13760-FDS This Document Relates to: KIERRA SIMMONS, et al.,


F. DENNIS SAYLOR IV United States District Judge

This case is one of many consolidated in a multi-district litigation proceeding arising out of claims that the use of the drug Zofran (ondansetron) by pregnant women caused birth defects. Plaintiffs Kierra Simmons, Tia Hancock, Joanna Tyler, and Dawn Barchiesi originally filed suit in Missouri state court against defendant GlaxoSmithKline, LLC (“GSK”) alleging that their use of Zofran during pregnancy caused congenital heart defects in their children. GSK removed the action to the United States District Court for the Eastern District of Missouri and moved to dismiss the claims of three of the plaintiffs for lack of personal jurisdiction. Plaintiffs moved to remand the case for lack of subject-matter jurisdiction due to a lack of complete diversity of citizenship among the parties. The Missouri state court stayed the case pending its transfer to this district by the Judicial Panel for Multidistrict Litigation for consolidation pursuant to 28 U.S.C. § 1407.

Plaintiffs have now renewed their motion to remand. GSK opposes remand on the ground that the Court should first decide the question of personal jurisdiction raised by its motion to dismiss before deciding the question of subject-matter jurisdiction. In the alternative, GSK contends that complete diversity exists based on the doctrines of fraudulent joinder and procedural misjoinder. For the following reasons, defendant’s motion to dismiss the claims of plaintiffs Hancock, Tyler, and Barchiesi will be granted, and plaintiffs’ motion to remand will be denied.

I. Background

Defendant GlaxoSmithKline, LLC manufactures the drug ondansetron under the brand name Zofran. Zofran was first approved in 1991 for the prevention of post-operative nausea and vomiting associated with anesthesia and for nausea and vomiting caused by radiotherapy and chemotherapy. In addition to those approved uses, GSK is alleged to have marketed Zofran “off-label” for pregnancy-related nausea and vomiting, commonly known as “morning sickness.”

Plaintiffs in this multidistrict litigation allege that Zofran was in fact unsafe for use in pregnant women, and that in utero exposure to Zofran caused birth defects in children born to mothers who took the drug. This particular action involves the claims of four plaintiffs: Kierra Simmons, Tia Hancock, Joanna Tyler, and Dawn Barchiesi. All four plaintiffs bring eight counts against defendant GSK arising out of congenital heart defects suffered by their children and allegedly caused by the plaintiffs’ use of name-brand Zofran during pregnancy.

The specific complaint at issue here was filed in state court in Missouri, removed to federal court, and then transferred to this MDL proceeding. Although filed in Missouri, the complaint asserts that only one of the four plaintiffs-Kierra Simmons-is a Missouri citizen. The complaint alleges that Tia Hancock is a citizen of Delaware; Joanna Tyler is a citizen of North Carolina; and Dawn Barchiesi is a citizen of Pennsylvania. All four have asserted similar and parallel product-liability claims against GSK, but those claims are otherwise unrelated.[1]GSK is a limited liability company with one member, GlaxoSmithKline Holdings, Inc., which is a Delaware corporation.[2]

II. Analysis

By statute, federal district courts have original jurisdiction over civil actions between citizens of different states when the amount in controversy exceeds $75, 000. 28 U.S.C. § 1332. “This statutory grant requires complete diversity between the plaintiffs and defendants in an action.” Picciotto v. Continental Cas. Co., 512 F.3d 9, 17 (1st Cir. 2008) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806); Halleran v. Hoffman, 966 F.2d 45, 47 (1st Cir. 1992)).

Plaintiffs contend that the case should be remanded to state court because the presence of a Delaware plaintiff (Hancock) and a Delaware defendant (GSK) means that there is not complete diversity between the parties. GSK, however, argues that the issue is not as straightforward as it appears. First, GSK contends that the Court should decide the issue of personal jurisdiction raised by its motion to dismiss before turning to the issue of subject-matter jurisdiction. Second, GSK contends that even if the Court first considers subject-matter jurisdiction, the doctrines of fraudulent joinder and procedural misjoinder preclude a finding that the parties are not diverse.

A. Order of Analysis

The initial question is which jurisdictional question should be decided first. When a party challenges both personal jurisdiction and subject-matter jurisdiction, there is no hard-and- fast rule dictating the order in which the district court must decide those issues. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584-88 (1999). In cases where subject-matter jurisdiction “involve[s] no arduous inquiry, . . . both expedition and sensitivity to state courts’ coequal stature should impel the federal court to dispose of that issue first.” Id. at 587-88. However, if “a district court has before it a straightforward personal jurisdiction issue presenting no complex question of state law, and the alleged defect in subject-matter jurisdiction raises a difficult and novel question, ” then the court may address personal jurisdiction first. Id. at 588.

In this case, considerations of judicial economy strongly suggest resolving the issue of personal jurisdiction ahead of subject-matter jurisdiction. Resolution of the question of subject-matter jurisdiction necessarily involves an assessment of GSK’s contention that the three non-Missouri plaintiffs were either fraudulently joined or procedurally misjoined. “[T]he possibility of fraudulent joinder can make the subject matter jurisdiction analysis ‘rather complicated, ’ especially if the inquiry involves ‘the more unusual question of ‘fraudulent joinder’ of a plaintiff.’” In re Testosterone Replacement Therapy Products Liab. Litig. Coordinated Pretrial Proceedings, 2016 WL 640520, at *3 (N.D. Ill. Feb. 18, 2016) (quoting Foslip Pharm., Inc. v. Metabolife Int'l, Inc., 92 F.Supp.2d 891, 899 (N.D. Iowa 2000)). The application of the doctrine of procedural misjoinder involves similarly complicated questions of law. See Cambridge Place Inv. Mgmt., Inc. v. Morgan Stanley & Co., 813 F.Supp.2d 242, 246 (D. Mass. 2011) (“The [First Circuit] has not adopted or addressed the doctrine, and the only district courts within the First Circuit that have addressed the issue have declined to apply it.”).[3] Both inquiries are made even more complicated where, as here, the alleged joinder ...

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