United States District Court, D. Idaho
MICHELLE STIRLING and BRANDON STIRLING, husband and wife, individually and as the natural parents of their minor child, B.S., Plaintiffs,
NOVARTIS PHARMACEUTICALS CORPORATION, a Delaware Corporation; ALCAMI CAROLINAS CORPORATION fka AAIPHARMA SERVICES CORP., a Delaware Corporation; GENUS LIFESCIENCES INC. dba LEHIGH VALLEY TECHNOLOGIES, a Pennsylvania Corporation; LANNETT COMPANY, INC., a Delaware Corporation; IMPAX LABORATORIES, INC., a Delaware Corporation; ST. LUKE'S REGIONAL MEDICAL CENTER, LTD., an Idaho Non-Profit Corporation; GLEN LOVELACE, M.D., an Individual; and DOES INDIVIDUAL/ENTITIES I through XX, Defendants.
MEMORANDUM DECISION AND ORDER
C. Nye Chief U.S. District Court Judge
matter comes before the Court on Plaintiffs' Motion to
Remand. Dkt. 30. Having reviewed the record and briefs, the
Court finds that the facts and legal arguments are adequately
presented. Accordingly, in the interest of avoiding further
delay, and because the Court finds that the decisional
process would not be significantly aided by oral argument,
the Court will address the motion without oral argument.
Dist. Idaho Loc. Civ. R. 7.1(d)(2)(ii). For the reasons
outlined below, the Court finds good cause to GRANT the
case, Plaintiffs contend that Defendants' negligently
and/or fraudulently marketed, labeled, and/or prescribed the
drug Terbutaline Sulfate (a generic version of the brand name
drug Brethine) to Plaintiff Michelle Stirling while she was
pregnant. Dkt. 1-4, at 9-11. Terbutaline Sulfate is used for
tocolytic purposes (i.e. to suppress premature labor).
According to Plaintiffs, the potential risks of this
medication to an unborn fetus “include, but are not
limited to, higher rates of psychiatric disorders and
psychopathology and decreased cognitive development.”
Dkt. 1-4, at 9.
October 2007, Michelle was approximately twenty-five weeks
pregnant with her son B.S., who is now eleven years old.
Id. On October 26, 2007, Michelle began experiencing
contractions, cramping, and abdominal pain, and was admitted
to Defendant St. Luke's Regional Medical Center, Ltd.
(“Saint Luke's”) in Boise, Idaho. Defendant
Glen Lovelace served as Michelle's doctor. Upon learning
of her symptoms, Dr. Lovelace administered a subcutaneous
injection of Terbutaline Sulfate, and gave Michelle a
prescription for Terbutaline Sulfate to use as a maintenance
used the medication as prescribed, which included taking the
drug multiple times a day, for over ninety (90) consecutive
days. Id. at 15. Plaintiffs contend that “[a]t
no time prior to or during the period of time that [Michelle]
was prescribed Terbutaline Sulfate were Plaintiffs informed
that the ingestion of the drug could potentially have adverse
effects on B.S.'s brain development or his cognitive and
neuropsychiatric condition.” Dkt. 30-1, at 3. They
further allege that “none of the labels on the bottles
of Terbutaline Sulfate had warnings about possible adverse
side effects to their developing fetus, nor were those
bottles accompanied by any such written warnings.”
son, B.S., was born on February 18, 2008. Dkt. 1-4, at 11.
While B.S. did not initially exhibit signs or symptoms of
cognitive or neuropsychiatric disorders, this began to change
as he grew older. In September of 2014, B.S. was diagnosed
with Anxiety Disorder and Oppositional Defiant Disorder.
Id. In October 2014, B.S. was diagnosed with
Disruptive Mood Dysregulation Disorder. Id. In
August 2016, B.S. was diagnosed with Bipolar Disorder,
Separation Anxiety Disorder, and Social Anxiety Disorder of
Childhood. Id. at 11-12. Shortly thereafter, B.S.
was diagnosed with Autism Spectrum Disorder. Id.
filed this lawsuit in the Fourth Judicial District of the
State of Idaho on March 12, 2018. Dkt. 1-3. A primary
contention underlying Plaintiffs' claims is that
Defendants knew, or should have known, the risks associated
with the tocolytic drugs at issue in this case (Brethine and
Terbutaline Sulfate). Their Amended Complaint includes the
following eight claims: I. negligent failure to warn (against
Defendants Novartis, Alcami, Genus, and Does I-X [brand-name
manufacturers]); II. fraud (against Defendants Novartis,
Alcami, Genus, Lannett, Impax, and Does I-XX [generic and
brand-name manufacturers]); III. negligence per se
(against Defendants Novartis, Alcami, Genus, and Does I-X
[brand-name manufacturers]); IV. breach of the implied
warranty of merchantability (against Defendants Novartis,
Alcami, Genus, and Does I-X [brand-name manufacturers]); V.
medical malpractice (against Defendants St. Luke's and
Lovelace); VI. failure to obtain informed consent (against
Defendants St. Luke's and Lovelace); VII. intentional
infliction of emotional distress (against all Defendants);
and VIII. negligent infliction of emotional distress (against
October 9, 2018, Defendant Genus Lifesciences Inc.
(“Genus”) removed the case to this court, citing
28 U.S.C. § 1441(c). On November 8, 2018, Plaintiffs
filed their Motion to Remand the action back to state court.
district courts are courts of limited jurisdiction and are
“presumed to lack subject matter jurisdiction until the
contrary affirmatively appears.” Dragovich v.
United States Dep't of Treasury, 764 F.Supp.2d 1178,
1184 (N.D. Cal. 2011). When an action is removed to federal
district court from state court, the district court has
“broad discretion” to remand the removed claim or
cause of action. 28 U.S.C. § 1452(b); see also
28 U.S.C. § 1446(c)(4) (noting that if a court finds
“that removal should not be permitted, the court shall
make an order for summary remand”).
“burden of establishing federal jurisdiction is on the
party seeking removal, and the removal statute is strictly
construed against removal jurisdiction.” Prize
Frize, Inc. v. Matrix Inc., 167 F.3d 1261, 1265 (9th
Cir. 1999). Any doubt as to the right of removal is resolved
in favor of remand. Gaus v. Miles, Inc., 980 F.2d
564, 566 (9th Cir. 1992).
defendant may remove any civil action from state court to
federal district court if the district court has original
jurisdiction over the matter. 28 U.S.C. § 1441(a). 28
U.S.C. § 1331 explains that “district courts shall
have original jurisdiction of all civil actions arising under