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Stirling v. Novartis Pharmaceuticals Corp.

United States District Court, D. Idaho

March 25, 2019

MICHELLE STIRLING and BRANDON STIRLING, husband and wife, individually and as the natural parents of their minor child, B.S., Plaintiffs,
v.
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

          David C. Nye Chief U.S. District Court Judge

         I. INTRODUCTION

         This 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 motion.

         II. BACKGROUND

         In this 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.

         In 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 tocolytic.

         Michelle 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.” Id.

         Plaintiffs' 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.

         Plaintiffs 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 all Defendants).

         On 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. Dkt. 30.

         III. LEGAL STANDARD

         Federal 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”).

         The “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).

         A 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 ...


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