Brown v. Eli Lilly and Co.
2011 U.S. App. LEXIS 17113
| 2d Cir. | 2011Background
- Dorothy Brown died August 24, 2005 after treatment with Zyprexa; her death certificate cites cardiac arrest.
- Brown, as personal representative, sued Eli Lilly and two Mississippi hospitals (Noxubee General Hospital and Baptist Memorial Hospital-Golden Triangle) in Mississippi state court for wrongful death and related claims.
- Eli Lilly removed the action to federal court based on diversity, alleging fraudulent joinder of the non-diverse hospitals.
- District court in New York transferred related Zyprexa actions; Mississippi MTCA waivers and pre-suit expert consultation were central to removal/remand disputes.
- The district court granted summary judgment against Noxubee and Baptist (fraudulent joinder and MTCA defenses) and later against Lilly on causation/summary-judgment grounds; Brown’s appeals were pursued and then partially withdrawn/dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court had subject-matter jurisdiction at any time before judgment. | Brown argues lack of complete diversity at removal. | Lilly contends diversity existed at judgment time; non-diverse defendants were dismissed. | There was complete diversity at or before judgment; dismissal preserved jurisdiction. |
| Whether removal was proper given fraudulent joinder of Noxubee and Baptist. | Fraudulent joinder should not defeat remand; MTCA and notice requirements barred claims. | Non-diverse hospitals were fraudulently joined to defeat diversity. | Fraudulent-joinder analysis supports removal as to the non-diverse defendants. |
| Whether summary judgment against Lilly was proper given causation evidence. | Brown insufficiently connected Zyprexa to Brown's death; expert testimony required. | No causal link established; plaintiff failed to present prima facie case. | Summary judgment for Lilly affirmed; causation evidence insufficient. |
| Whether remand or severance issues were properly resolved given discovery on MTCA requirements. | State-law MTCA notices/expert consultation unresolved; remand appropriate. | MTCA defects cured or not fatal; discovery pending on Baptist status. | District court acted within boundaries; appeal of remand issue not surviving. |
| Whether Brown’s appeals from Baptist and Noxubee judgments are timely/jurisdictional. | Appeals timely and properly framed under Rule 54(b). | Appeals untimely or withdrawn; jurisdiction lacking for those facets. | Appeals from Baptist and Noxubee judgments dismissed for lack of jurisdiction. |
Key Cases Cited
- Caterpillar, Inc. v. Lewis, 519 U.S. 61 (1996) (remand after judgment proper if jurisdiction existed at entry; final judgment governing)
- Hallingby v. Hallingby, 574 F.3d 51 (2d Cir. 2009) (diversity context; dismissal of non-diverse defendant before judgment preserves jurisdiction)
- Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296 (2d Cir. 2004) (fraudulent joinder standard; burden on movant to show no possibility of recovery)
- Bowles v. Russell, 551 U.S. 205 (2007) (timeliness of notice of appeal is a jurisdictional requirement)
- Bounds v. Pine Belt Mental Health Care Res., 593 F.3d 209 (2d Cir. 2010) (fraudulent joinder; effect on diversity and remand)
- Williams v. Bennett, 921 So.2d 1269 (Miss. 2006) (Mississippi products liability elements; expert testimony required for causation)