IN RE: KAREN A. BRISCOE, еt al.; ALFRED LARA, et al.; WANDA T. KIZER, et al.; DEBRA ALEXANDER, et al.; RHONDA ALLEN, et al.; MARY GREEN, et al.; GLENDA D. ABBOTT, et al.; and LESLIE BALES, et al.
No. 04-4086
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
May 15, 2006
PRECEDENTIAL
Opinions of the United States Court of Appeals for the Third Circuit
5-15-2006
In Re: Karen Briscoe
Precedential or Non-Precedential: Precedential
Docket No. 04-4086
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Recommended Citation
“In Re: Karen Briscoe ” (2006). 2006 Decisions. Paper 1001. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1001
Argued December 13, 2005
Before: SLOVITER, SMITH and STAPLETON, Circuit Judges.
(Filed May 15, 2006)
Sylvia Davidow Fleming & Associates Houston, TX 77056*
Jonathan S. Massey (Argued) Bethesda, MD 20817
Attorneys for Petitioners Karen Briscoe, et al., Alfred Lara, et al., Debra Alexander, et al., Rhonda Allen, et al., Mary Green, et al., Glenda D. Abbott, et al. and Leslie Bales, et al.
Fred S. Longer Arnold Levin Michael D. Fishbein Levin, Fishbein, Sedran & Berman Philadelphia, PA 19106
Attorneys for Respondents Plaintiffs’ Management Committee and Plaintiffs’ Class
Mary H. Smith Smith & Smith Houston, TX 77056-7133
Attorney for Respondents George O. Crisp, M.D., Jacqueline C. Hubbard, M.D., Frank Morehead, M.D., James Vosberg, M.D. and Brent Wallace, M.D.
Russell G. Thornton Stinnett Thiebaud & Remington Dallas, TX 75202
Attorney for Respondent Stinnett Thiebaud & Remington Physicians
Nancy N. Morrison Naman, Howell, Smith & Lee
Attorney for Respondents J. E. Madsen, M.D., James Weinblatt, M.D. and Morey Price, M.D.
Jay H. Henderson Cruse, Scott, Henderson & Allen Houston, TX 77019
Attorney for Respondent Cruse, Scott, Henderson & Allen Physicians
Nik A. Mimari Patterson & Wagner San Antonio, TX 78229
Attorney for Respondents Michael Hesitand, M.D. and Carmen Llauger-Meir, M.D.
Joseph M. Dunn Evans & Rowe San Antonio, TX 78216
Attorney for Respondents Beau Meyer, M.D. and Sylvia Adams, M.D.
Ann P. Watson Lara M. Price Sheehy, Serpe & Ware Houston, TX 77010
Attorneys for Respondent Sheehy, Serpe & Ware Physicians
Douglas E. Markham Callaway & Brenning Houston, TX 77002
Attorney for Respondent Esther G. Cruz, D.O.
John R. Robinson
Attorney for Respondent Johnson & Sylvan Physicians
C. Timothy Reynolds Steed Flagg Rockwall, TX 75032
Attorney for Respondent Tyson H. Barnes, Jr., M.D.
Robert D. Rosenbaum (Argued) Arnold & Porter Washington, D.C. 20004
Michael T. Scott Paul B. Kerrigan Milind M. Shah Reed Smith Philadelрhia, PA 19103-7301
Peter L. Zimroth Arnold & Porter New York, NY 10022-4690
Attorneys for Respondent Wyeth Corp. f/k/a American Home Products Corporation
Mark A. Keene (Argued) Davis & Davis Austin, TX 78759
Attorneys for Respondent Stella Kwong, M.D.
Philip A. Sellers Karotkin, Chase & Erwin Houston, TX 77027
Attorney for Respondents James Saxton, M.D., Raymond Neuman, M.D., Cornelia L. Agent, M.D. and Robert
Matthew W. Bobo Broome, Bobo & Greene Irving, TX 75039
Attorney for Nancy Scheinost
Michael L. O‘Brien Houston, TX 77056
Attorney for Amicus-Petitioner Opt-Out Plaintiffs’ Counsel (O‘Brien Group)
Bryan F. Aylstock Aylstock, Witkin & Sasser Pensacola, FL 32504
Attorney for Amicus-Petitioner Opt-Out Plaintiffs’ Counsel (Aylstock Group)
John E. Williams, Jr. Williams Bailey Law Firm Houston, TX 77017-5001
Attorney for Amicus-Petitioner Williams Bailey Law Firm, LLP
Whitman B. Johnson, III Currie, Johnson, Griffin, Gaines & Myers Jackson, MS 39205
Attorney for Amici-Respondents Alphonse M. Reed, M.D., et al.
Honorable Harvey Bartle, III,
Nominal Respondent
SLOVITER, Circuit Judge.
At issue in this case is the disposition of more than 14,000 actions filed by some 30,000 to 35,000 plaintiffs pending before the United States District Court for the Eastern District of Pennsylvania as part of the Multidistrict Diet Drug Product Liability Litigation, MDL-1203. Petitioners are 450 plaintiffs who originally filed their suits in Texas state courts. Defendant Wyeth removed the suits to the Texas federal district courts on the basis of diversity jurisdiction, even though petitioners had also named non-diverse parties as defendants. According to Wyeth, removal was proper because the additional defendants were named solely as a means to defeat federal jurisdiction. After the actions were transferred to the docket of MDL-1203, petitioners moved for a remand to state court. The District Court held that the non-diverse defendants were “fraudulently joined” because it determined that the claims against them are clearly time-barred under the governing Texas statute of limitations. It therefore dismissed all defendants except Wyeth, held that it has diversity jurisdiction, and denied the motions to remand. Claiming that the Distriсt Court committed a clear error of law, petitioners seek a writ of mandamus and ask that we direct the District Court to remand their cases to state court.1
I.
This court has previously set forth various facets of the background to MDL-1203 and its class action settlement agreement. See In re Diet Drugs, 401 F.3d 143, 147-48 (3d Cir. 2005) (dismissing appeals for want of jurisdiction and denying mandamus petition for review of award and allocation of interim
On September 15, 1997, respondent Wyeth (then known as American Home Products Corporation) withdrew from sale on the United States market its widely prescribed appetite suppressants, or “diet drugs,” known as fenfluramine (“Pondimin“) and dexfenfluramine (“Redux“). Approximately six million people in the United States had taken one or both of the diet drugs prior to the withdrawal. Subsequent studies have linked ingestion of the diet drugs to valvular heart damage (“VHD“), including a condition known as heart-valve regurgitation (the reverse flow of blood through a closed heart valve). After the diet drugs were withdrawn, approximately 18,000 lawsuits were filed against Wyeth in state and federal courts nationwide. In December 1997, the Judicial Panel for Multidistrict Litigation (“JPML“) consolidated the pending federal сases for coordinated pre-trial proceedings and transferred them as MDL-1203 to the docket of then District Judge Louis C. Bechtle in the United States District Court for the Eastern District of Pennsylvania.2
In November 1999, Wyeth and representatives of the state and federal court plaintiffs executed a Nationwide Class Action Settlement Agreement (“Settlement Agreement“). The proposed class included all persons in the United States, including their representatives and dependents, who had ingested either or both of the diet drugs. Judge Bechtle granted provisional approval to the Settlement Agreement and initiated a wide-reaching
The first part of the notice program was designed to make class members aware of the potential risks posed by Pondimin and Redux, of the legal rights arising from the use of those drugs, of the proposed nationwide class action settlement which would resolve such claims and of their opportunity to opt out or object to the Settlement. In addition, the first part of the notice program was designed to inform class members of the opportunity to obtain a court authorized “notice package” describing their legal rights in relation to the settlement by registering to receive the notice package through a 1-800 number (1-800-386-2070) or through the world wide web (www.settlementdietdrugs.com). Thе second part of the notice program was to provide a detailed “notice package” to each person who had registered through the 1-800 number or web site and to all other class members whose names and addresses were known to the parties.
In re Diet Drugs, MDL No. 1203 & Civ. No. 99-20593, 2000 WL 1222042, at *35 (E.D. Pa. Aug. 28. 2000). From November 1999 through March 2000, the notice was disseminated to potential class members through a broad spectrum of media, including: a television commercial; magazines; local and national newspapers; publications targeting healthcare providers and pharmacists; banner advertisements on the Internet directing class members to the official settlement website; and a direct mailing to all doctors and pharmacists believed to have prescribed Pondimin or Redux.
After the notice program, Judge Bechtle conducted a comprehensive evidentiary hearing on fairness of the Settlement Agreement. He then formally certified the plaintiffs’ class and approved the Settlement Agreement (with four amendments) on August 28, 2000. Judge Bechtle made numerous factual determinations in connection with his approval of the Settlement Agreement, two of which are relevant here. First, he found that the dissemination of notice to class members was “highly successful,” explaining that
[a] sophisticated media analysis demonstrated that 97% of women between the ages of 25 and 54 viewed one or more forms of televised or printed notice an average of 10 times. A reach and frequency analysis indicated that almost 80% of women between the ages of 25 and 54 were exposed to the message contained in the televised or printed forms of notice a minimum of five times. Women between the ages of 25 and 54 account for a vast majority of the use of diet drugs Pondimin and Redux. . . . In addition, a reach and frequency analysis indicated that the settlement message reached 97% of women 35 years and older an average of 11.4 times and that it reached 81% of women 35 years and older a minimum of five times. With respect to African-American women between the ages of 25 and 54, the reach and frequency analysis shows that the settlement message reached 97% of those women an average of 10.2 times and that 79% of African-American women between the ages of 25 and 54 viewed the message a minimum of five times. With respect to men age 25 through 54, 94% viewed the settlement message an average of 6.2 times and 54.3% were reached with the settlement message a minimum of five times.
Id. at *36 n. 16. Second, Judge Bechtle found that the diet drugs do not cause latent injuries – a finding that was central to his determination of the adequacy of the class representation and his approval of the Settlement Agreement. Objectors to the Settlement Agreement had argued that a “futures” problem existed because issues regarding latency and the progression of VHD remained unsettled. Judge Bechtle rejected this argument, noting, inter alia,
The clinical and epidemiological studies demonstrate – and all the experts agree – that insofar as the use of fenfluramine or dexfenfluramine results in an increased prevalence of valvular regurgitation, that regurgitation is detectable by echocardiogram shortly after the patients discontinue use of diet drugs. Conversely, there is no evidence that the use of the drugs results in any increased risk of regurgitation that is “latent” and not detectable by
today‘s sophisticated echocardiographic technology.
Id. at *46. After appeals terminated, the Settlement Agreement received “Final Judicial Approval” on January 2, 2002.
By its terms, the Settlement Agreement offered class members a chance to opt out from seeking benefits under the agreement and, instead, to pursue remedies against Wyeth through the tort system. The 450 petitioners before us are class members who exercised the opt-out right and filed 127 separate suits in Texas state courts from November 2002 to August 2003.3 Petitioners are known as “intermediate” opt-outs because they exercised the opt-out right after an initial deadline of March 30, 2000. To qualify for an intermediate opt-out, class members had to take an echocardiogram and have a qualified physician find a medically relevant severity of heart-valve regurgitation as defined by the Settlement Agreement. Intermediate opt-out plaintiffs are entitled to sue Wyeth for compensatory damages, but they have agreed not to seek punitive, exemplary, or multiple damages. In return for this restriction, Wyeth has agreed to waive any statute of limitations defense to the suits against it. The Houston, Texas, law firm of Fleming & Associates, LLP, is
Notably, as of January 31, 2006, some 30,000 to 35,000 plaintiffs had approximately 14,000 cases pending before the District Court for the Eastern District of Pennsylvania as part of MDL-1203. The 450 petitioners before us obviously represent only a small fraction of that total number. However, counsel from numerous law firms representing thousands of opt-out plaintiffs have submitted briefs as amici curiae in support of petitioners’ mandamus request. The amici make it clear that the question whether the District Court has erred in refusing to remand cases to state court is one that is common to a substantial number of the pending diet drug cases.
In their complaints, petitioners named as defendants both Wyeth and the individual physicians who prescribed them the diet drugs.4 Petitioners raised state-law claims against Wyeth based on negligence, design and marketing defects, and inadequate and improper warnings. They raised separate claims of medical malpractice against the physicians for failure to warn of the dangers of the diet drugs, failure to prescribe the drugs under proper conditions, and failure generally to provide reasonable treatment and proper care. Petitioners asserted no claims under federal law.
Wyeth timely removed petitioners’ cases under
The JPML eventually transferred all of petitioners’ cases to the docket of MDL-1203. Petitioners moved for a remand to state court under
Judge Bechtle was succeeded as the presiding District Judge over MDL-1203 by the Honorable Harvey Bartle III, currently Chief Judge of the United States District Court for the Eastern District of Pennsylvania (“the District Court“). In August, September, and October 2004, the District Court issued seven separate Pre-Trial Orders (“PTOs“) (numbers 3870, 3871, 3991, 3995, 4017, 4036, and 4054) in which he denied petitioners’ motions to remand and dismissed all defendants from the actions except Wyeth. Because the District Court had previously issued a lengthy unpublished opinion on a similar remand motion from Texas plaintiffs in an action titled Accadia v. Wyeth, PTO No. 3666 (E.D. Pa. June 29, 2004), the District Court adopted its analysis in Accadia to reject the petitioners’ motions.
In Accadia, the District Court explained that although Wyeth had withdrawn Pondimin and Redux from the market in September 1997, the plaintiffs did not file suit in Texas until mid-2003, which was more than five years after their physicians last prescribed the diet drugs. The District Court observed that the test in a fraudulent joinder inquiry is not whether the plaintiff fails to state a claim against the non-diverse defendant but merely whether the claim is colorable. The District Court agreed with Wyeth that the claims against the physicians are not colorable because they are time-barred. The Court rejected the argument that plaintiffs were unable to discover their injuries until the echocardiogram results revealed their alleged heart problems because actual knowledge of the particulars supporting a cause of action (such as receipt of an examination result) is not required to commence a limitations period. In addition, the District Court rejected the contention that plaintiffs were unable to timely discover their injuries because they experienced no symptoms of heart problems or failed to attribute any symptoms
publicity was insufficient to prоvide notice, the District Court concluded that plaintiffs “certainly were put on notice by the end of March, 2000, by the comprehensive publicity campaign surrounding the nationwide class action Settlement Agreement with Wyeth.” Motion App. at 387 (citation omitted).
The District Court rejected the contention that VHD can be latent. It noted that Judge Bechtle had found that diet-drug-related injury occurs at or near the end of the last use, with no latency period before the emergence of detectable injury. As class members and parties to the Settlement Agreement, plaintiffs were estopped from re-litigating the issue of latency. The District Court also rejected plaintiffs’ reliance upon the Texas Constitution‘s “Open Courts” provision, which creates an exception to the state statute of limitations period if it would
[i]n light of the massive publicity concerning the health risks associated with the use of the diet drugs, the comprehensive notice program associated with the settlement, and this court‘s determination that diet drug induced valvular heart disease is not a latent disease, we find that plaintiffs, through the exercise of reasonable diligence, should have discovered their alleged injuries at the very latest by the end of March, 2000. Since plaintiffs did not file these actions until [more than two years later], their claims against their prescribing physicians are clearly time barred.
Motion App. at 394.
As noted, the District Court adopted its analysis in Accadia to reject petitioners’ motions to remand their cases to state court. Petitioners then turned to this court by filing a petition and supplemental petition for a writ of mandamus.
II.
By invoking our mandamus jurisdiction, petitioners concede, at least implicitly, that we have no appellate jurisdiction at this time to review the denial of their remand motions. In the ordinary course of proceedings, we acquire jurisdiction over a matter by way of an appeal either from final orders under
In re Diet Drugs, 401 F.3d at 154 (footnote omitted). Petitioners make no claim to the availability of review at this time through any of these avenues of appeal, nor could they reasonably do so. See, e.g., Caterpillar Inc. v. Lewis, 519 U.S. 61, 74 (1996) (“An order denying a motion to remand, standing alone, is obviously not final and immediately appealable as of right.“) (citation, quotation marks and punctuation omitted); see also Spring Garden Associates, L.P. v. Resolution Trust Corp., 26 F.3d 412, 414 (3d Cir. 1994) (“As for the district court‘s denial of a remand, neither
It is well-recognized, however, that mandamus is not a mere alternative to an appeal. Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1422 (3d Cir. 1991). Instead, mandamus is properly viewed as a “safety valve in the final-judgment rule,” In re Asbestos Sch. Litig., 46 F.3d 1284, 1295 (3d Cir. 1994), because it provides “a drastic remedy that a court should grant only in extraordinary circumstances in response to an act amounting to a judicial usurpation of power.” In re Diet Drugs, 418 F.3d at 378 (quotation marks and citation omitted).
The All Writs Act provides that “[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
A.
We first address whether petitioners have shown that there is no other adequate means to attain the desired relief. This requirement is intended “to ensure that the writ will not be used as a substitute for the regular appeals process.” Cheney, 542 U.S. at 380-81 (citing Ex parte Fahey, 332 U.S. 258, 260 (1947)). An appellate court‘s overuse of the writ to review interlocutory district court decisions would undermine the Congressional policy against piecemeal appeals. As the Supreme Court has explained,
[P]articularly in an era of excessively crowded lower court dockets, it is in the interest of the fair and prompt administration of justice to discourage piecemeal litigation. It has been Congress’ determination since the Judiciary Act of 1789 that as a general rule appellate review should be postponed until after final judgment has been rendered by the trial court. A judicial readiness to issue the writ of mandamus in anything less than an extraordinary situation would run the real risk of defeating the very policies sought to be furthered by that judgment of Congress.
Kerr v. U.S. Dist. Court for N. Dist. of Cal., 426 U.S. 394, 403 (1976) (footnote, punctuation, and citations omitted).
Based on these principles, we have recognized that a petitioner cannot claim the lack of other means to relief if an appeal taken in due course after entry of a final judgment would provide an adequate alternative to review by mandamus. See Hahnemann Univ. Hosp. v. Edgar, 74 F.3d 456, 461 (3d Cir. 1996) (“To be sure, appeal after final judgment constitutes ‘other
Petitioners have not shown that an appeal at the end of their cases would be inadequate. Should petitioners’ cases reach finality in the MDL-1203 proceedings before the District Court, the denial of their motions to remand can be reviewed in this court in conjunction with an appeal taken under
Petitioners suggest that the availability of review at the end of their cases in the court of appeals for the transferor district is less than certain. They fear that Wyeth might successfully challenge the authority of other courts of appeals to review the remand issue by arguing that this court has exclusive authority to review the rulings of an MDL court located within the Third Circuit. Petitioners fail, however, to direct us to any authority to substantiate this concern. To the contrary, at least one court of appeals has squarely recognized that an MDL Court‘s previously unreviewed rulings are properly raised in the court of appeals for the transferor district should the case reach a final judgment there. See Allegheny Airlines, Inc. v. LeMay, 448 F.2d 1341, 1344 (7th Cir. 1971) (per curiam) (holding that MDL court‘s dismissal of third-party complaints would return as “part of the ‘package‘” to transferor district and dismissal as well as final judgment in primary action could be appealed to appropriate Court of Appeals).
Petitioners alternatively contend that awaiting a final judgment provides an “illusory” remedy. Petitioners’ Br. at 57. They claim that lengthy discovery and trial proceedings remain and that “wasted resources” will be the result if it is determined only after trial that federal jurisdiction was lacking in their cases. Id. at 58. Petitioners are assuming, of course, that their cases will not terminate in their favor, which is mere speculation. Nevertheless, we discern nothing extraordinary in their situation to justify intervention on the remand question via mandamus. It is the congressionally mandated norm in federal litigation to await final judgment. In these cases, following that procedure will not deprive a reviewing court of the ability to fashion a meaningful remеdy for petitioners, such as a remand of their cases to state court. See, e.g., McKee v. Kansas City S. Ry. Co., 358 F.3d 329, 337 (5th Cir. 2004) (reversing denial of motion to remand, vacating jury verdict, and ordering remand given defendant’s failure to establish fraudulent joinder). Moreover, like any plaintiff, these petitioners (or their counsel) must incur the expense inherent in pursuing litigation. We recognize that they also face the unavoidable prospect of adverse interlocutory rulings like those challenged here. Such rulings may well increase the cost of litigation, cause inconvenience, or result in unanticipated delay in prosecuting the case. But these added
Nor can petitioners meaningfully contend that mandamus review of the remand issue is warranted because of the large number of cases that Wyeth has removed to federal court оn the basis of fraudulent joinder. Petitioners argue that “it rises to the level of impracticability for the federal judiciary to confront thousands of appeals on this common issue at the end of the case.” Oral Arg. Tr. at 12. We have previously rejected this very same argument:
The petitioners’ implied premise is that final appeal is a presumptively inadequate means of review in megalitigation. If we accepted that position, however, every significant interlocutory order in this case would arguably be subject to review on petition for mandamus. That would be an untenable result. Although the extraordinary size and complexity of a case may assist in creating the extraordinary circumstances necessary to invoke mandamus, they are not alone sufficient.
In re Sch. Asbestos Litig., 977 F.2d 764, 778 n. 14 (3d Cir. 1992); see also In re Diet Drugs, 418 F.3d at 379 (rejecting “the contention that the scope (or even the complexity) of a case, without more, is sufficient to warrant the issuance of the writ”). Thus, we conclude that an appeal after final judgment is not an illusory or ineffectual means through which petitioners can
Petitioners suggest that mandamus is appropriate because their situation is similar to that presented in In re Dutile, 935 F.2d 61 (5th Cir. 1991). In Dutile, plaintiffs sued in state court based on injuries sustained onboard a shipping vessel and sought relief under the federal Jones Act, general maritime law, and state law. Id. at 62. The district court denied a motion to remand after removal, denied plaintiffs’ requests to dismiss their claims against the vessel, and refused to certify an interlocutory appeal. Id. Plaintiffs then sought a writ of mandamus, arguing that a remand was required because federal law prohibited removal of the Jones Act claim, and the maritime and state law claims were not otherwise removable. Id. The court of appeals observed that a defendant who seeks to remove a maritime action must establish diversity jurisdiction and, because complete diversity was lacking, the maritime claims were not properly removed; further, it observed that the Jones Act and state-law claims were not removable in their own right. Id. at 62-63. In light of the district court’s clear error, the court issued the writ and ordered a remand. Id. at 63-64. The court added, however, that it was granting the extraordinary remedy of mandamus “for more than the trial court’s legal error.” Id. at 63. It noted that the Jones Act grants plaintiffs the “uncommon right” to choose state court as the forum for their suit without regard to the wishes of the defendants, and a failure to issue the writ would thwart that congressional policy. Id. at 63-64. Without mandamus relief, plaintiffs would be “trapped in a federal forum they did not choose on an explicitly non-removable claim,” and thus awaiting an appeal after final judgment was not a viable alternative means to relief. Id. at 64.
The concerns at issue in Dutile are simply not present here. Petitioners did not bring suit on a claim “explicitly” determined by Congress to be “non-removable.” Rather, they filed suit in state court solely under Texas law based on claims of negligence and strict liability. Consequently, and unlike the diverse defendant in Dutile, Wyeth could properly exercise the right to removal and seek to establish that the non-diverse defendants were “fraudulently joined.”
The doctrine of fraudulent joinder represents an exception to the requirement that removal be predicated solely upon complete diversity. See Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998). In a suit with named defendants who are not of diverse citizenship from the plaintiff, the diverse defendant may still remove the action if it can establish that the non-diverse defendants were “fraudulently” named or joined solely to defeat diversity jurisdiction. As will be discussed more fully in Part B of this Opinion, this court has held that joinder is fraudulent if “there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action agаinst the defendant or seek a joint judgment.” Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 32 (3d Cir. 1985) (citation and quotation marks omitted). If the district court determines that the joinder was “fraudulent” in this sense, the court can “disregard, for jurisdictional purposes, the citizenship of certain nondiverse defendants, assume jurisdiction over a case, dismiss the nondiverse defendants, and thereby retain jurisdiction.” Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999) (citation omitted). If, however, the district court determines that it does not have subject-matter jurisdiction over the removed action because the joinder was not fraudulent, it must remand to state court.
Wyeth removed petitioners’ cases, and the District Court
B.
Petitioners’ mandamus request also fails the second condition for issuance of a writ of mandamus, as they have not shown a “clear and indisputable right” to the writ. We may issue the writ “only if the district court committed a ‘clear error of law’ at least approaching the magnitude of an unauthorized exercise of judicial power, or a failure to use that power when there is a duty to do so.” In re Federal-Mogul Global, Inc., 300 F.3d 368, 384 (3d Cir. 2002) (punctuation omitted). When a mandamus petitioner challenges a district court’s subject-matter jurisdiction, as is the case here, our issuance of the writ has traditionally been reserved to “restrain[ing] jurisdictional excesses, particularly when a lower court has acted without authority to do so.” In re Sch. Asbestos Litig., 921 F.2d at 1314 (citation omitted). However, “mere doubt” about the district court’s jurisdiction is never enough to justify mandamus relief. Id. Rather, “the district court’s lack of subject matter jurisdiction [must be] ‘clear and indisputable.’” Id.; see also Roche, 319 U.S. at 26 (“[A]ppellate courts are reluctant to interfere [by mandamus] with the decision of a lower court on jurisdictional questions which it was competent to decide and which are reviewable in the regular course of appeal.”) (citation
Petitioners claim that the District Court erred in its fraudulent joinder analysis because their claims against the non-diverse Texas physicians are colorable under state law and not clearly time-barred. Petitioners rely upon the three decisions of this court in which we have developed our fraudulent joinder jurisprudence: Batoff v. State Farm Ins. Co., 977 F.2d 848 (3d Cir. 1992); Boyer v. Snap-on Tools Corp., 913 F.2d 108 (3d Cir. 1990); and Abels, 770 F.2d 26. We will briefly review Batoff, Boyer, and Abels before addressing whether petitioners have established a “clear and indisputable” right to relief.
In Batoff, a Pennsylvania psychologist filed suit in state court against an automobile insurer as the assignee of a patient’s right to payment for medical expenses. The plaintiff also named as a defendant another psychologist (a Pennsylvania resident), asserting that the psychologist engaged in a conspiracy with the insurer to prevent payment. After the insurer removed the action, the district court rejected the plaintiff’s motion to remand for want of diversity jurisdiction. The district court held that the plaintiff had failed to state a claim on the merits against the non-diverse psychologist, and dismissal of that claim resulted in complete diversity between the plaintiff and the insurer. The district court subsequently also dismissed the claim against the insurer for failure to state a claim, and the plaintiff appealed from the final judgment.
This court vacated the judgment for lack of subject-matter jurisdiction. We reviewed the standards to be applied in a fraudulent joinder analysis and summarized those standards as follows:
A district court must consider a number of settled precepts in ruling on a petition to remand a case to state court for lack of diversity jurisdiction. When a non-diverse party has been joined as a defendant, then in the absence of a substantial federal question the removing defendant may avoid remand only by demonstrating that the non-diverse party was fraudulently joined. But the
removing party carries a heavy burden of persuasion in making this showing. It is logical that it should have this burden, for removal statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand. Joinder is fraudulent where there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendants or seek a joint judgment. But, if there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that joinder was proper and remand the case to state court. . . .
In evaluating the alleged fraud, the district court must focus on the plaintiff’s complaint at the time the petition for removal was filed. In so ruling, the district court must assume as true all factual allegations of the complaint. It also must resolve any uncertainties as to the current state of controlling substantive law in favor of the plaintiff.
Batoff, 977 F.2d at 851-52 (punctuation and citations omitted).
Applying these standards, we rejected the district court’s decision to conduct a merits determination in the context of a fraudulent joinder inquiry. We explained that because “it is possible that a party is not fraudulently joined, but that the claim against that party ultimately is dismissed for failure to state а claim upon which relief may be granted,” the district court had “erred in converting its jurisdictional inquiry into a motion to dismiss.” Id. at 852. Unless the claims against the non-diverse defendant could be deemed “wholly insubstantial and frivolous,” which they were not, the joinder could not be considered fraudulent.
In Boyer, upon termination of a dealership agreement, a tool dealer brought suit asserting state-law claims against a tool
On appeal from the final judgment, this court held that it was improper to reach the merits of the otherwise colorable claims against the non-diverse employees. We observed that “this is not a case where the action against the individual defendants is defective as a matter of law” because state law provided a cause of action against an employee whose fraud and misrepresentations contributed to plaintiff’s damages even if the actions were taken in the course of employment. Id. at 111 (citation omitted). Assuming a district court can “pierce the pleadings” to determine whether a plaintiff has asserted a colorable claim against the non-diverse defendant, “that inquiry is far different from the summary judgment type inquiry made by the district court here.” Id. at 112. The district court, “in the guise of deciding whether the joinder was fraudulent, stepped from the threshold jurisdictional issue into a decision on the merits,” and because the dispositive defense based on the release was raised by all three defendants, it was impermissible for the district court to reach the merits of that defense in deciding the fraudulent joinder question. Id. We concluded that “where there are colorable claims or defenses asserted against or by diverse and non-diverse defendants alike, the court may not find that the non-diverse parties were fraudulently joined based on its view of the merits of those claims or defenses.” Id. at 113. Such a determination must be left to the state court.
Finally, in Abels, plaintiffs filed suit in state court against
Petitionеrs assert that the District Court committed a clear error of law because it misapplied the teachings of Batoff, Boyer, and Abels. We disagree. The District Court confined its inquiry to whether petitioners could make a colorable argument to overcome the physicians’ statute of limitations defenses, and it held that petitioners fraudulently joined those defendants because there could be no debate that the claims against the physicians are time-barred as a matter of law. This inquiry was consistent with our admonition in Batoff that a district court must rule out any possibility that a state court would entertain the cause before holding that joinder of a non-diverse defendant was fraudulent. 977 F.2d at 851. If a district court can discern,
Petitioners argue that the District Court ignored their pleading allegations and resolved disputed issues of fact and sensitive questions of state law in ruling on the statute of limitations issue. They allege that they were unaware of their diet-drug injuries because they relied upon their physicians for information аnd advice, their physicians failed to warn them about the dangers of the diet drugs, and, moreover, their physicians fraudulently concealed those dangers. Petitioners contend that the District Court’s ruling should have been based solely upon these allegations, and that it erred by considering matters outside the pleadings in holding their claims time-barred.
In Abels we made it clear that a court can look to more than just the pleading allegations to identify indicia of fraudulent joinder. We echoed that proposition in Boyer, although we were careful to observe, as we did in Batoff, that a district court must not step “from the threshold jurisdictional issue into a decision on the merits.” Boyer, 913 F.2d at 112; see also Batoff, 977 F.2d at 852.
We have not previously had occasion to address the extent to which a court may look beyond the pleadings in a fraudulent joinder inquiry when faced with a statute of limitations defense to claims against non-diverse defendants. Certainly, a district court must accept any well-pleaded allegations as true, and resolve uncertainty in the law governing the limitations bar in plaintiff’s favor. Cf. Batoff, 977 F.2d at 852. But in reviewing a limitations question, we see no reason
No doubt the statute of limitations is a defense, and a rather unique one at that. It is one that does not truly go to the merits of the plaintiff’s claim in any sense. It does not assert some excuse or justification for what the defendant is alleged to have done, nor does it assert any release or waiver of any right of action against the defendant. It does not even deny the wrong or claim contributory fault or set off. Rather, it virtually admits the validity of the cause of action and the plaintiff’s right to collect upon it, but asserts that the plaintiff waited too long to pursue the cause of action.
Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1319 (9th Cir. 1998).
Under Texas law, which governs the limitations question raised here, the Texas Supreme Court has similarly observed that “[o]f course, no statute of limitations directly addresses the merits of a claim to which it is interposed as a bar. Instead, limitations rest on a legislative policy judgment that requires the diligent pursuit of one’s legal rights at the risk of losing them if they are not timely asserted.” City of Murphy v. City of Parker, 932 S.W.2d 479, 481-82 (Tex. 1996) (citation omitted).
The policy judgment that stale claims should not see the light of day, when viewed in combination with a defendant’s statutory right to remove an action that falls within the original jurisdiction of a federal court, counsels against confining a
In Ritchey, the Ninth Circuit found that it was “reasonable and necessary” for a diverse defendant to present facts outside the pleadings to establish that joinder of the non-diverse defendants was fraudulent. 139 F.3d at 1318. Like the present case, the fraudulent joinder in Ritchey was based upon an assertion of a limitations bar under state law as to the claims against non-diverse defendants. Id. The court of appeals endorsed a look beyond the pleading allegations and took judicial notice of its prior decision in which it had affirmed factual determinations that effectively established the date on which the plaintiff’s latest cause of action could be deemed to have accrued. Id. at 1319-20. On the basis of its prior decision, the court was able to conclude that “[t]he harm was well known to [the plaintiff] several years before he brought his action, and he also knew what wrongdoing had caused that harm.” Id. at 1320. The court thus found it “pellucid” that plaintiff filed suit on his new theory after the limitations period had expired, and that the non-diverse parties were clearly “sham defendants for
The District Court here looked beyond the pleadings in much the same manner. To determine if petitioners’ claims accrued more than two years before they filed suit, the District Court considered the media-generated publicity that accompanied withdrawal of the diet drugs from the market on September 15, 1997. It also looked to the extensive and “highly successful” notification campaign that preceded Judge Bechtle’s approval of the Settlement Agreement on August 28, 2000. Finally, the District Court looked to Judge Bechtle’s prior factual determination that the diet drugs do not cause latent injuries. The District Court looked, in other words, to evidence that was established in prior proceedings in the MDL-1203 litigation (i.e., the no-latency determination and the success of the notification campaign), and to facts subject to judicial notice (i.e., the readily ascertainable sources that publicized withdrawal of the diet drugs).9 Applying Texas law, the District Court determined that the limitations period on the claims against the physicians clearly began to run either when the diet drugs were withdrawn from the market on September 15, 1997, or, at the latest, at the end of March 2000 when the class-member notification campaign concluded.
Petitioners have not shown that the District Court’s disposition of this issue warrants mandamus. Under Texas law,
Notwithstanding any other law, no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed.
The Texas Supreme Court has “repeatedly held that section 10.01 establishes an absolute two-year statute of limitations for health care liability claims.” Diaz v. Westphal, 941 S.W.2d 96, 99 (Tex. 1997). Consequently, there is no “discovery rule” in setting the date when the time limit on a claim begins to run under
On September 15, 1997, the diet drugs were withdrawn from the market and no longer available for prescription. That date is, therefore, the last possible date on which any of the physicians could have prescribed Wyeth’s diet drugs, and petitioners make no allegation to the contrary. The District Court could reasonably conclude that Texas law clearly mandates that petitioners’ time for filing suit on a claim that the physicians committed malpractice in prescribing the diet drugs and in failing to warn of the risks of taking the diet drugs began to run on or before September 15, 1997. See Gross v. Kahanek, 3 S.W.3d 518, 521 (Tex. 1999) (holding that statute of limitations began to run when doctor last prescribed drug as part of “course of treatment” that allegedly caused patient’s death). Petitioners filed the first of their suits against the physicians in November, 2002, more than five years later.
The District Court further concluded that, even if petitioners lacked sufficient awareness of their claims notwithstanding the publicity that surrounded withdrawal of the diet drugs, they were on notice at the end of March 2000 by virtue of the media campaign that preceded approval of the Settlement Agreement. Petitioners argue that the effectiveness of the notice campaign in reaching each individual class member is an issue that must be determined by a fact-finder on a case-by-case basis. As noted, after an extensive evidentiary hearing on
In similar fashion, petitioners allege that their diet-drug injuries remained “latent” and were only discovered after echocardiograms were taken, at which time they first became aware of their potential claims against the physicians. Judge Bechtle squarely held, however, that Pondimin and Redux do not cause latent injuries; rather, any injury was detectable by echocardiogram upon or shortly after last use of the diet drugs, which were pulled from the market on September 15, 1997. This “no latency” determination was made after a full and fair evidentiary hearing and was an essential finding to support approval of the Settlement Agreement, as it bore directly on the
Pеtitioners respond that the latency issue is once again under debate before the District Court because certain class members have submitted affidavits from two doctors who claim that diet-drug-induced VHD can be latent. Petitioners argue that “[i]n the face of such scientific disagreement the district court’s disregard of Plaintiffs’ allegations in a fraudulent joinder inquiry was improper.” Petitioners’ Br. at 32-33. To the extent that petitioners claim that they now have new evidence regarding latency, we fail to see how that evidence would suffice to show clear error in the District Court’s fraudulent joinder analysis.
Similarly, we cannot conclude that petitioners have shown a “clear and indisputable right” to the writ based on the tolling afforded under the Texas Constitution’s “Open Courts” provision.11 This provision creates an exception to the two-year statute of limitations under
Petitioners also argue that the limitations period can be tolled based on the physicians’ alleged “fraudulent concealment,” which is a “defense or plea in avoidance to the running of [the limitations period]” under Texas law. Estate of Fawcett, 55 S.W.3d 214, 218 n. 2 (Tex. App. 2001). Under Texas law,
[F]raudulent concealment in medical negligence cases estops a health-care provider from relying on limitations to bar a plaintiff’s claim. The plaintiff must show the health-care provider actually knew a wrong occurred, had a fixed purpose to conceal the wrong, and did conceal the wrong from the patient. Fraudulent concealment tolls limitations until the plaintiff discovers the fraud or could have discovered the fraud with reasonable diligence.
Gilbert v. Bartel, 144 S.W.3d 136, 144 (Tex. App. 2004) (footnotes omitted). Petitioners alleged in their complaints that the physicians fraudulently concealed the dangers of Pondimin and Redux.12 Petitioners do not allege, however, that the
physicians “actually knew” that they were injured by the diet drugs and concealed that fact from them, or that the physicians ever willfully concealed the dangers of the diet drugs; petitioners allege only that the physicians were negligent in their failure to exercise ordinary care.
As the Texas Supreme Court has explained, “fraudulent concealment requires more than evidence that the physician failed to use ordinary care; it also requires evidence that the defendant actually knew the plaintiff was in fact wronged, and concealed that fact to deceive the plaintiff.” Earle, 998 S.W.2d at 888. Given petitioners’ allegations, we see no clear error or usurpation of authority in the District Court’s failure to find a colorable basis for fraudulent-concealment tolling.
Petitioners raise two additional tolling arguments that warrant consideration. First, they claim that the Settlement Agreement precludes Wyeth from arguing a limitations defense on behalf of the physicians. By its terms, the Settlement Agreement bars petitioners from suing Wyeth for certain types of damages, and in return for that restriction Wyeth “shall not assert any defense based on any statute of limitations or repose.” Motion App. at 690 (emphasis added). Petitioners interpret this provision as prohibiting Wyeth from relying on a physician’s limitations defense as the ground for removal. Petitioners contend, in other words, that the word “any” in the above-quoted language should be interpreted to have a broad enough meaning to cover “any” limitations defense for “any” party named as a defendant, inсluding a limitations defense specific to the claims against the physicians. The Settlement Agreement, however, does not prohibit Wyeth from removing petitioners’ cases to federal court and asserting fraudulent joinder on the ground that
Second, petitioners contend that the injunction Judge Bechtle entered to preclude suits against Wyeth and others tolled the limitations period for claims against the physicians. They cite Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex. 1991), for the proposition that “[w]here ‘a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right.’” Id. at 157 (quoting Walker v. Hanes, 570 S.W.2d 534, 540 (Tex. App. 1978)) (citations omitted).
In approving the Settlement Agreement on August 28, 2000, Judge Bechtle entered an order that class mеmbers who did not “timely and properly” exercise an opt-out right were enjoined “from asserting, and/or continuing to prosecute against [Wyeth] or any other Released Party any and all Settled Claims which the class member had, has or may have in the future in any federal, state or territorial court.” In re Diet Drugs, 2000 WL 1222042, at *71. A “timely” intermediate opt-out right was determined based on the taking of an echocardiogram between September 30, 1999, and January 3, 2003, with a requirement that the right to opt out be exercised no later May 3, 2003. Petitioners argue that in view of these deadlines, “they were entitled to wait until May 3, 2003 to opt out, and until May 3, 2004 to file suit.” Petitioners’ Br. at 51 (emphasis added). As Wyeth correctly notes, however, petitioners were at liberty to free themselves from the terms of the injunction against suit simply by obtaining an echocardiogram anytime during the
Petitioners raise additional arguments, some for the first time in this mandamus proceeding, regarding the District Court’s ruling on the fraudulent joinder issue. We find those remaining arguments insufficient and in need of no separate discussion. We conclude that petitioners have not shown a clear and indisputable lack of diversity jurisdiction over their actions, or that the District Court’s refusal to remand amounts to a clear error of law. We emphasize that our holding in this matter is not intended to prejudice a later reviewing court in its consideration of petitioners’ arguments for remand should petitioners elect to appeal on that issue after entry of a final judgment. We have merely reviewed the fraudulent joinder question for purposes of adjudicating petitioners’ request for an extraordinary writ, and we conclude in that regard that petitioners lack a clear and indisputable right to relief.
III.
Having considered petitioners’ arguments, we hold that they fail to meet the first two conditions to mandamus relief. Accordingly, we will deny the petition for a writ of mandamus.
Notes
The publicity began on September 15, 1997. At 5:00 p.m., the Houston CBS news affiliate started the broadcast with a report that Wyeth‘s diet drugs had been pulled from the market, announcing that the Food and Drug Administration (“FDA“) is urging millions of dieters to stop taking them as “[t]hey have been linked to serious heart problems. Similar newscasts kicked off the five o‘clock news for both the ABC and NBC affiliate station in the Houston area. These news reports and the headline news in the papers the following day warned viewers and readers of the evidence indicating that the diet drugs could seriously damage the heart. The stories were also carried on Houston radio stations. They informed listeners that [the diet drugs] had been pulled from the market because of evidence linking the drugs to heart problems. Within a week, lawyers began running ads in the Houston Chronicle advising potential plaintiffs of the life-threatening problems that could result from the use of the diet drugs.
The publicity in the Dallas/Fort Worth, San Antonio, Waco, and El Paso areas was just as pervasive. . . .
. . . .
Media coverage of the withdrawal of the diet drugs from the market was not limited to local news outlets. Reports about the withdrawal were the leading stories on major television network news programs, including NBC Nightly News, CBS Evening News and the Today Show. USA Today, a daily newspaper with a national readership, ran a front-page story regarding the withdrawal of diet
Motion App. at 384-87.drugs, [their] effects, and the response by various organizations throughout the United States regarding the news. The article went so far as to report that potential litigation was imminent and people who had taken diet drugs were signing up with attorneys to take part in a large class action lawsuit.
Wyeth also informed consumers about the recall of its diet drugs. Immediately after removing the drugs from the market on September 15, 1997, Wyeth issued a press release advising patients who had used diet drugs to consult their physicians. It included the same message in full page ads that it purchased in leading national and regional newspapers. These ads led with a banner in large print, stating “An Important Message To Patients Who Have Used Pondimin or Redux.” Furthermоre, Wyeth sent a “Dear Health Care Provider Letter” to approximately 450,000 physicians and pharmacists in which it informed them of the withdrawal of the drugs from the market and of the potential association between use of the drugs and instances of valvular heart disease.