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In re Zofran (Ondansetron) Products Liability Litigation

United States District Court, D. Massachusetts

June 16, 2016

GLAXOSMITHKLINE LLC, This Document Relates to THOMAS BROWN, 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 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.

         Plaintiffs 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.

         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 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.

         Plaintiffs’ 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.

         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 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.

         “[U]nder 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. 2014).[1]

         Count Three of the complaint asserts a claim for strict liability against Providence as a “seller” of the Zofran taken by Espindola Gomez.[2] GSK contends that Providence has been fraudulently joined in the action because Oregon does not recognize a cause of action against healthcare providers for strict liability.

         Under Oregon law,

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 ...

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