Norman v. Raleigh Heart Clinic, Inc.
5:18-cv-00131
S.D.W. VaApr 2, 2018Background
- ~125 individual cases filed in Raleigh County, WV alleging hepatitis B/C infections after cardiac stress tests at Raleigh Heart Clinic involving radiopharmaceuticals supplied by Cardinal Health. Plaintiffs claim negligence against the clinic/doctor and product/marketing defects and failure-to-warn against Cardinal Health.
- Most plaintiffs are West Virginia residents; Raleigh Heart Clinic and Dr. Barghouthi are WV citizens; Cardinal Health is a Delaware LLC with principal place in Ohio but a WV pharmacy branch that shipped the radiopharmaceuticals is implicated.
- Plaintiffs’ counsel filed a motion to refer cases to the West Virginia Mass Litigation Panel (MLP) seeking centralized discovery and unified pretrial management; a state-court order later consolidated the cases for discovery only on an unopposed defense motion.
- Cardinal Health removed the cases to federal court invoking CAFA’s "mass action" removal provision (100+ plaintiffs, >$5,000,000 in controversy, minimal diversity).
- Plaintiffs moved to remand, arguing the cases are not a CAFA mass action (no proposal to try jointly) and asserting CAFA exceptions (home-state and local controversy). Court considered whether claims were "proposed to be tried jointly."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the consolidated actions qualify as a CAFA "mass action" (i.e., claims "proposed to be tried jointly") | Plaintiffs: they sought only centralized discovery/MLP referral and did not propose joint trial; consolidation was for pretrial only | Cardinal Health: motion to refer to MLP and consolidation shows intent to try jointly; plaintiffs treated matter as unified | Held: Not a mass action — plaintiffs did not propose joint trial; consolidation was for discovery/pretrial only, so CAFA removal improper |
| Whether CAFA "event or occurrence" exception applies (i.e., all claims arise from an event in the filing state) | Plaintiffs: cases arose from occurrences in WV (tests and alleged injuries) supporting exception | Cardinal Health: dispute that this is a single event; argued multiple transactions negate the "single happening" reading | Held: Court did not decide — unnecessary because court resolved cases on "proposed to be tried jointly" issue |
| Whether CAFA home-state or local controversy exceptions apply | Plaintiffs: more than two-thirds of plaintiffs and primary defendants are WV residents, invoking exceptions | Cardinal Health: argued it is a primary non-WV defendant and related out-of-state filings defeat exceptions | Held: Court did not reach these exceptions after finding lack of mass action jurisdiction |
| Award of attorney’s fees for improper removal | Plaintiffs: removal was objectively unreasonable; seek fees under 28 U.S.C. §1447(c) | Cardinal Health: removal was made in good faith with reasonable basis | Held: Fees denied — removal was not objectively unreasonable under the circumstances |
Key Cases Cited
- Dart Cherokee Basin Operating Co. v. Owens, 135 S. Ct. 547 (2014) (standard for evidentiary showing after jurisdictional allegations are challenged in removal)
- Lanham v. Nationstar Mortg., LLC, 169 F. Supp. 3d 658 (S.D.W. Va. 2016) (defendant bears burden to establish federal jurisdiction on removal)
- Parson v. Johnson & Johnson, 749 F.3d 879 (10th Cir. 2014) (consolidation for pretrial does not make claims a CAFA mass action)
- Briggs v. Merck Sharp & Dohme, 796 F.3d 1038 (9th Cir. 2015) (petition to join consolidated proceeding that is pretrial-only is not a proposal for joint trial)
- Scimone v. Carnival Corp., 720 F.3d 876 (11th Cir. 2013) (plaintiffs can avoid §1332(d)(11)(B)(i) by filing separate complaints and not proposing joint trial)
- Martin v. Franklin Capital Corp., 546 U.S. 132 (2005) (standard for awarding fees on remand — fees inappropriate if removal was objectively reasonable)