LOBUE v. CLEGGETT-LUCAS, (E.D.La. 2003)

CIVIL ACTION NO. 02-3516, SECTION: I/2United States District Court, E.D. Louisiana.
August 19, 2003

ORDER AND REASONS
LANCE AFRICK, Magistrate Judge

Plaintiff, Todd Lobue (“Lobue”), has filed a motion to remand this action to the state court from which it was removed. (Rec. Doc. No. 9).

Background
On October 23, 2002, plaintiff filed a petition in the Civil District Court for the Parish of Orleans, State of Louisiana, alleging that he sustained injuries as a result of ingestion of and addiction to OxyContin, a prescription medication.[1] He sued Jacqueline Cleggett-Lucas, M.D. (“Dr. Cleggett-Lucas”) and Oliver Sanders, M.D., a/k/a Walter Oliver Sanders, M.D. (“Dr. Sanders”), his physicians who prescribed the OxyContin, alleging that they committed medical malpractice in conjunction with their treatment

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of the plaintiff, J.C.L. Enterprises, L.L.C. (“J.C.L. Enterprises”), Dr. Cleggett-Lucas’s alleged employer, and Continental Casualty Company (“Continental”), which insured Dr. Cleggett-Lucas.[2] Plaintiff also sued Purdue Pharma, Inc., Purdue Pharma, L.P., Purdue Frederick Company, and Abbott Laboratories, Inc. (“Purdue-Abbott”), the manufacturers, designers and marketers of OxyContin, alleging various state law claims.[3]

On November 25, 2002, Purdue-Abbott filed a timely notice of removal, alleging that this Court has jurisdiction because diversity of citizenship exists.[4] Purdue-Abbott alleges that the health care provider defendants, Dr. Cleggett-Lucas, Dr. Sanders, and J.C.L. Enterprises, are fraudulently joined.[5]

Fraudulent Joinder
In B, Inc. v. Miller Brewing Co., 663 F.2d 545
(5th Cir. 1981), the Fifth Circuit described the burden placed upon parties who remove based upon a fraudulent joinder theory:

The burden of persuasion placed upon those who cry `fraudulent joinder’ is indeed a

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heavy one. In order to establish that an instate defendant has been fraudulently joined, the removing party must show either that there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court; or that there has been outright fraud in the plaintiff’s pleadings of jurisdictional facts.

663 F.3d at 549 (emphasis added) (citations omitted).[6] This Court need not decide whether the plaintiffs will actually or even probably prevail on the merits. It must only determine whether there is a possibility that plaintiffs may do so. Dodson v. Spiliada MaritimeCorp., 951 F.2d 40, 42 (5th Cir. 1992) (other citations omitted). “[I]f there is even a possibility that a state court would find a cause of action stated against any one of the named in-state defendants on the facts alleged by the plaintiff, then the federal court must find that the in-state defendant(s) have been properly joined, that there is incomplete diversity, and that the case must be remanded to the state courts.” B, Inc., 663 F.2d at 550
(citations omitted).

Defendants, Purdue-Abbott, argue that the plaintiff’s claims against the health care providers may have prescribed. Relying on Campo v.Correa, 828 So.2d 502 (La. 2002), Purdue-Abbott suggests

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that plaintiff has failed to meet his initial pleading burden by making vague allegations with respect to the dates on which he was treated by his physicians. In a footnote, the Campo court observed that “[a]s with other pleadings, the plaintiffs must initially allege facts with particularity which indicate that the injury and its causal relationship to the alleged misconduct were not apparent or discoverable until within the year before the suit was filed. . . . Through discovery the defendants may then test these facts.” Campo. 828 So.2d 509, n. 9. Fraudulent joinder was not an issue in the Campo
decision.

Purdue-Abbott argues that because the plaintiff has only generally alleged that the petition was timely filed, the plaintiff’s medical malpractice claim against his health care providers must be considered to be prescribed. As the court held in Catalano v. Dr. JacquelineCleggett-Lucas, 2002 WL 506810 (E.D. La. 2002) (Barbier, J.):

Under the law of Louisiana, the prescriptive period for medical malpractice claims runs from the `date of the plaintiff’s discovery of his injury or damages. By its nature, this is. often a fact-intensive inquiry; that is especially true in this case, where part of the damages plaintiff claims include[s] his alleged addiction to OxyContin, which is unlikely to have a clear-cut onset date.

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And, while it is well-settled that the Court may employ a summary judgment type procedure to pierce the pleadings when considering questions of fraudulent joinder, the summary judgment procedure is insufficient to resolve the issue of prescription when the question cannot be resolved on the face of the pleadings or other undisputed facts, but instead requires a fact-based inquiry. `At a hearing on this exception of prescription, the parties are allowed to call witnesses to testify and the factfinder is allowed to weigh credibility. On summary judgment, this is prohibited.’ Labbe Service Garage, Inc. v. LBM Distributors, Inc., 650 So.2d 824, 829
(La.App. 3d Cir. 1995), citing Smith v. Our Lady of the Lake Hospital. 639 So.2d 730, 751 (La. 1994) (“Summary judgment is seldom appropriate for determinations based on subjective facts, such as motive, intent, good faith, knowledge and malice.”)
Because the issue of prescription will in this case involve factual questions not amenable to resolution by summary judgment, the question must be reserved for the fact-finder. Thus, defendants’ affirmative defense of prescription does not preclude the remand of this case.

2002 WL 506810 at *2-*3.

This Court agrees with Catalano. The prescription issue raised in this case implicates factual questions which cannot be determined on a motion for summary judgment. “A district court need not and should not conduct a full scale evidentiary hearing on questions of fact affecting the ultimate issues of substantive

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liability in a case in order to make a preliminary determination as to the existence of subject matter jurisdiction.” B, Inc.. 663 F.2d at 551. After the case is remanded, a defendant may file an appropriate motion in order to determine whether to assert a peremptory exception of prescription. However, particularly with respect to the instant claim whereby plaintiff alleges he became addicted to OxyContin as a result of medical malpractice, the determination of when the cause of action accrued is highly fact intensive. The district court’s task in analyzing whether a party is fraudulently joined is not to conduct a trial on the merits of a defense, but merely to assess whether there is subject matter jurisdiction.

For these reasons and for the reasons stated in Ohler v. PurduePharma, L.P., 2002 WL 88945 (E.D. La. 2002) (Englehardt, J.), the Court finds that there is a possibility that the plaintiff has a cause of action against Dr. Cleggett-Lucas, Dr. Sanders, and J.C.L. Enterprises, non-diverse health care providers and, therefore, they were not fraudulently joined.[7] Accordingly, for

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the above and foregoing reasons,

IT IS ORDERED that the motion of plaintiff, Todd Lobue, to remand is GRANTED.

IT IS FURTHER ORDERED that the request of defendants for leave to conduct discovery is DENIED.