United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PLAINTIFFS’ MOTION TO
Dennis Saylor IV United States District Judge.
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 Thomas Brown and Maria Del Carmen
Espindola Gomez originally filed suit in Oregon state court
against defendants GlaxoSmithKline, LLC (“GSK”)
and Providence Health System-Oregon d/b/a Providence Newberg
Medical Center f/k/a Providence Newberg Hospital
(“Providence”) alleging that Espindola
Gomez’s use of Zofran during pregnancy caused
congenital heart defects in her child. GSK removed the action
to the United States District Court for the District of
Oregon. 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 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.
have now renewed their motion to remand. GSK opposes remand
on the ground that complete diversity exists based on the
doctrine of fraudulent joinder. For the following reasons,
plaintiffs’ motion to remand will be granted.
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.”
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 two plaintiffs: Thomas Brown
and Maria Del Carmen Espindola Gomez, who are the parents of
M.B. Plaintiffs have sued both GSK, the manufacturer of
Zofran, and Providence, a hospital located in Oregon that
allegedly dispensed Zofran to Espindola Gomez.
original complaint was filed in state court in Oregon,
removed to federal court, and then transferred to this MDL
proceeding. Plaintiffs bring seven counts against defendants
GSK and Providence arising out of congenital heart defects
suffered by M.B. and allegedly caused by Espindola
Gomez’s use of name-brand Zofran during pregnancy.
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)).
contend that the case should be remanded to state court
because the presence of Oregon plaintiffs (both Brown and
Espindola Gomez) and an Oregon defendant (Providence) means
that there is not complete diversity between the parties. GSK
contends that plaintiffs have fraudulently joined Providence
in order to destroy complete diversity and defeat removal.
the doctrine of fraudulent joinder, removal is not defeated
by the joinder of a non-diverse defendant where there is no
reasonable possibility that the state's highest court
would find that the complaint states a cause of action upon
which relief may be granted against the non-diverse
defendant.” Universal Truck & Equip. Co. v.
Southworth-Milton, Inc., 765 F.3d 103, 108 (1st Cir.
Three of the complaint asserts a claim for strict liability
against Providence as a “seller” of the Zofran
taken by Espindola Gomez. GSK contends that Providence has been
fraudulently joined in the action because Oregon does not
recognize a cause of action against healthcare providers for
One who sells or leases any product in a defective condition
unreasonably dangerous to the user or consumer or to the
property of the user or consumer is subject to liability for
physical harm or ...