E-Alert Case Updates

Maryland District Court Finds Lack of Federal Question Jurisdiction, Under 28 U.S.C. § 1331, and Subject Matter Jurisdiction, Under 28 U.S.C. § 1332, in Products Liability Case

Karen Larson v. Abbott Laboratories, et al.
United States District Court for the District of Maryland, Civil Action No. ELH-13-00554 (Nov. 5, 2013)
by Jhanelle Graham, Associate
Semmes, Bowen & Semmes (www.semmes.com)

In Karen Larson v. Abbott Laboratories, et al., Karen Larson, as guardian for her brother, Kraig Larson, sued several defendants in the Circuit Court for Baltimore City, alleging that Mr. Larson suffered severe and permanent brain damage proximately caused by his use of the prescription drug Adalimumab, commonly known as HUMIRA. According to Ms. Larson, HUMIRA increases the risk of severe injury or death from infection when taken by individuals with immunodeficiency, such as human immunodeficiency virus (“HIV”). Mr. Larson, a former space engineer, was HIV positive (“HIV+”), and the drug was prescribed to him for the treatment of his psoriasis. United States District Judge Ellen L. Hollander concluded that the district court lacked subject matter jurisdiction over the matter, and remanded the case to the Circuit Court for Baltimore City for further proceedings, pursuant to 28 U.S.C. § 1447(c).

Ms. Larson sued Abbott Laboratories (“Abbott”), the manufacturer of HUMIRA, and Harrison & Star (“H&S”), a healthcare marketing agency that marketed HUMIRA from 2005 through 2009 (collectively, the “Pharmaceutical Defendants”). In October 2011, Ms. Larson filed suit in the Circuit Court for Baltimore City against Monte S. Meltzer, M.D., who prescribed HUMIRA in 2010 to Mr. Larson, alleging medical malpractice and negligence. She amended her complaint in July 2012, adding defendants Union Memorial Hospital, Union Memorial Health Services, Inc., Dr. Ellen Yang, an infectious disease physician who monitored Mr. Larson’s “HIV” condition, and Annapolis Infectious Disease Associates, LLP (collectively, the “Medical Defendants”). Ms. Larson also added a claim for “Lack of Informed Consent.” In November 2012, however, Ms. Larson and the defendants filed a joint “Stipulation of Dismissal Without Prejudice.”

As to Abbott, Ms. Larson alleged strict liability failure to warn, negligent failure to warn, and breach of implied warranties. She also sought to recover punitive damages. As to both Abbott and H&S, Ms. Larson alleged common law misrepresentation and violations of Maryland’s Consumer Protection Act, Md. Code Ann. § 13-301 et seq. of the Commercial Law Article. With respect to the Medical Defendants, Ms. Larson alleged medical malpractice, negligence, and lack of informed consent. In January 2013, Ms. Larson again filed suit in the Circuit Court for Baltimore City. In a subsequent suit, filed on January 2, 2013, she added the Pharmaceutical Defendants. On February 20, 2013, Abbott filed a Notice of Removal, asserting that the district court had federal question jurisdiction under 28 U.S.C. § 1331 and diversity jurisdiction under 28 U.S.C. § 1332. The district court, however, was unable to determine from the Notice of Removal whether it had subject matter jurisdiction, and directed the parties to brief the matter. The Pharmaceutical Defendants argued in their Memorandum of Law that the district court had both diversity jurisdiction and federal question jurisdiction. In their Response, the Medical Defendants asserted that the district court had federal question jurisdiction, but not diversity jurisdiction. Ms. Larson filed a Motion to Remand, accompanied by a Memorandum, and a Response in Support of Remand, arguing that the district court lacked subject matter jurisdiction. At issue in the district court was the question of whether the court had subject matter jurisdiction over any of the claims against any of the parties.

The district court began by stating that federal courts are courts of limited jurisdiction and “may not exercise jurisdiction absent a statutory basis.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). “A court is to presume, therefore, that a case lies outside its limited jurisdiction unless and until jurisdiction has been shown to be proper.” United States v. Poole, 531 F.3d 263, 274 (4th Cir. 2008) (citing Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994)). Moreover, a federal court has “an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it.” Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010). Further, if a plaintiff files suit in state court with respect to a matter over which the “the district courts of the United States have original jurisdiction,” the defendant generally may remove the case to federal district court. 28 U.S.C. § 1441(a). With respect to cases removed to federal court from state court, 28 U.S.C. § 1447(c) provides: “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”

Here, Ms. Larson was a citizen of New Jersey, but she brought suit as the legal representative of her brother, who was a citizen of Maryland. Section 1332(c)(2) of Title 28 provides: “[T]he legal representative of an infant or incompetent shall be deemed to be a citizen only of the same State as the infant or incompetent.” Accordingly, the parties agreed that, for purposes of this suit, Ms. Larson was deemed a citizen of Maryland. Abbott was a citizen of Illinois, H&S was a citizen of Delaware, Dr. Meltzer was a citizen of the District of Columbia, and the rest of the Medical Defendants—like Ms. Larson—were citizens of Maryland. The district court observed that Ms. Larson filed her suit in state court, asserting claims based not on federal law, but rather under Maryland law. Nevertheless, the Pharmaceutical Defendants argued that the district court had both federal question jurisdiction and diversity jurisdiction over the claims against them.

Citing Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986), the court stated that Ms. Larson sought to hold the Pharmaceutical Defendants liable in connection with warnings that were allegedly inadequate. Unlike the plaintiffs in Merrell Dow, however, Ms. Larson did not allege a violation of the Food, Drug, and Cosmetics Act (FDCA), nor did she attempt to rely on a violation of the FDCA as an element of her claim. Rather, according to the court, she expressly disclaimed any allegation that the Pharmaceutical Defendants violated federal law. The court stated that if a claim expressly relying on an alleged violation of a federal statute is insufficient to confer federal question jurisdiction, then surely an analogous claim that does not allege failure to comply with federal law is also insufficient. Even assuming, arguendo, that a federal issue was raised by Ms. Larson’s complaint, the district court stated that the Pharmaceutical Defendants could not show that the issue was “actually disputed.” As Ms. Larson stated, “there [wa]s nothing disputed in the federal statutory and regulatory realm because the Plaintiff d[id] not allege that the law required HIV+ patients to be included in the HUMIRA clinical trials.” Accordingly, the district court concluded that it did not have federal question jurisdiction under 28 U.S.C. § 1331, and proceeded to determine whether subject matter jurisdiction existed under 28 U.S.C. § 1332.

The district court addressed contention that: “Plaintiff ha[d] fraudulently misjoined both Abbott and Harrison & Star to the Medical Malpractice Defendants.” The court stated that the Pharmaceutical Defendants conceded that both Ms. Larson and several of the Medical Defendants were citizens of Maryland, which would ordinarily defeat the court’s diversity jurisdiction. Nonetheless, the contention of fraudulent misjoinder is sufficient to raise an issue as to whether “the citizenship of the Medical Malpractice Defendants [should not be] considered for purposes of establishing diversity jurisdiction.”

After explaining the distinction between the widely accepted doctrine of “fraudulent joinder” and the more controversial doctrine of “fraudulent misjoinder,” the district court stated that neither was at issue here. The doctrine of fraudulent misjoinder was created to prevent unscrupulous plaintiffs from improperly joining non-diverse parties in a fraudulent attempt to avoid a federal forum. The court found, however, that this was not the issue at bar. Here, for more than a year, Ms. Larson initially proceeded only against the Medical Defendants, and most of the Medical Defendants were citizens of Maryland. Therefore, from the outset, the court found that there was no diversity jurisdiction, nor any possibility of removal to federal court. Thereafter, plaintiff re-filed her suit, adding the Pharmaceutical Defendants to the case. The court stated that the decision to add the Pharmaceutical Defendants, far from being a fraudulent attempt to defeat diversity, actually opened the door to the possibility of a federal court hearing the matter. Although the Pharmaceutical Defendants may have been added to the case “[o]n the eve of trial,” the court determined that their addition was not an eleventh hour effort to avoid a federal forum.

Accordingly, the court concluded that it would not sever the Medical Defendants from the suit. It reasoned that because the Medical Defendants were citizens of the same state as Ms. Larson, complete diversity did not exist. Consequently, the court held that it lacked subject matter jurisdiction. Pursuant to 28 U.S.C. § 1447(c), the district court remanded the case to the Circuit Court for Baltimore City for further proceedings.