Fed judge sends out-of-state claims back to W.Va. court

John O'Brien Sep. 26, 2012, 10:19am


HUNTINGTON, W.Va. (Legal Newsline) - A federal judge has remanded 18 cases filed by minors who claim they suffered birth defects as a result of their mothers' use of Pfizer's prescription drug Zoloft.

U.S. District Judge Robert Chambers ruled Tuesday that the cases must be heard in Wayne County Circuit Court, where they were first filed in July. The plaintiffs come from 16 different states, including West Virginia.

Pfizer wanted the cases transferred to a multidistrict litigation proceeding in Pennsylvania. Chambers wrote that the existence of an MDL did not undermine his ability to consider a remand motion.

"Defendants have not met their burden of demonstrating that Plaintiffs' claims were not properly joined because of case processing practices in Wayne County Circuit Court," he wrote.

The case began as a single complaint in Wayne County, which gave the 19 plaintiffs 19 different case numbers. All but one were removed to federal court by Pfizer.

Pfizer argued that because the Wayne court separated the cases, the claims are not properly joined. And without proper joinder, it argued, the 18 plaintiffs are completely diverse from all defendants and subject to federal jurisdiction.

The one case left in the Wayne court by Pfizer was Angela Dropp. As a New York native, she is not diverse from all defendants.

Chambers cited rule of civil procedure 3(a), which states, " For a complaint naming more than one individual plaintiff not related by marriage, a derivative or fiduciary relationship, each plaintiff shall be assigned a separate civil action number and be docketed a separate civil action..."

The plaintiffs argued 3(a) is an administrative rule designed to assist state courts handling mass actions and should not determine the nature of the complaint for the purposes of a diversity analysis.

Chambers noted a previous case from Mason County wherein each family unit of a group of plaintiffs was assigned a separate case number and ordered to pay a separate filing fee. However, they did not have to file multiple complaints.

"Defendants offer no authority... for the proposition that Rule 3(a) was meant to have the rather severe substantive effect of prohibiting all unrelated persons from proceeding with a mass claim in West Virginia state courts," Chambers wrote.

The Zoloft plaintiffs were not ordered to file separate complaints in their case, as well.

Because the claims were properly joined in the Wayne court, they are subject to state jurisdiction, Chambers ruled.

He also ruled that all the claims originated from the same occurrences, Pfizer's alleged concealment of Zoloft side effects.

The plaintiffs are represented by Huntington firm Greene, Ketchum, Bailey, Walk, Farrell & Tweel. It is the former firm of now state Supreme Court Justice Menis Ketchum.

Also representing the plaintiffs is Arnold & Itkin of Houston.

From Legal Newsline: Reach John O'Brien at jobrienwv@gmail.com.

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