Law

We learned a new word the other day while watching TV:  Autoantonym.  An autoantonym is a word that means one thing, but it also means the opposite.  The word is its own antonym, and it is remarkably easy to think of examples once you set your mind to it.  The verb “dust” means to spread dust (“Bexis likes how the corner bakery dusts its pumpkin muffins with powdered sugar”).  And it also means to remove dust (“Our mother judges people by how well they dust their living rooms”).  The word “fast” means moving along quickly (“Usain Bolt is really fast”).  And it also means staying firmly in one place (“The tree is holding fast against the strong wind”).  Many people think “inflammable” is an autoantonym, but it is not.  It means only one thing—easily set ablaze.  The antonym is “fireproof.” 

Our autoantonym for today is “sanction,” which means both to punish and to permit.  Long before we learned that there was such a thing as an autoantonym, we stopped using the word “sanction” in briefs unless it was crystal clear from the context what we meant, owing to the word’s inherent ambiguity.  We mention this today because two different district judges from the Southern District of Illinois decided two motions to remand on the same day last week, each presented with similar facts, and they somehow came to diametrically opposed conclusions.  That is to say, one “sanctioned” the plaintiff’s joinder of a local pharmacy to defeat removal jurisdiction, resulting in an order remanding the case; and the other “sanctioned” the plaintiff’s joinder of a local pharmacy to defeat removal jurisdiction, resulting in an order retaining jurisdiction. 

Go figure.  In Peoples v. Novartis Pharmaceuticals Corp., No. 15-cv-0670, 2015 U.S. Dist. LEXIS 122790 (S.D. Ill. Sept. 15, 2015), the plaintiff sued a number of drug manufacturers in St. Clair County, Illinois, a forum in which plaintiffs often want to be.  To that end, they named an Illinois-based pharmacy as a co-defendant, thus purporting to block removal with the presence of a local defendant.  Id. at **1-2.  The defendants removed the case to the Southern District anyway, and when the plaintiff raised subject matter jurisdiction with the court, the defendants argued that the local pharmacy was fraudulently joined and that its Illinois citizenship should be disregarded.  Id. 

That was the correct position to take.  Under the learned intermediary rule, which all but a few states apply (including Illinois), the duty to warn runs from a drug’s manufacturer to the prescribing physician.  Intermediaries in the chain of distribution, such as pharmacies, owe no comparable duty—to the patient, to the prescribing physician, or to anyone else.  Indeed, pharmacies are prohibited by federal law from altering the warnings that come with FDA-approved drugs, making it impossible for pharmacies to comply with such a duty even if one were to exist. 

We would have denied the plaintiff’s motion to remand on the basis that she had no grounds for a claim against the local pharmacy.  As the district court in Peoples observed, “[i]t would be senseless, especially given the drug regulation by the Food and Drug Administration and the extensive tort liability of drug manufacturers, to make pharmacies liable in tort for the consequences of failing to investigate the safety of thousands of drugs.”  Id. at *4 (quoting Walton v. Bayer Corp., 643 F.3d 944, 999-1000 (7th Cir. 2011)).  After making this observation, however, the district court in Peoples took a turn.  According to the court, Illinois law leaves open the possibility that a pharmacy could owe a customer a duty to warn when the pharmacy “knows of individual patient susceptibilities that a manufacturer or even a treating physician may not know.”  Id. at *4.  We have seen cases of independent pharmacy negligence, such as the rare case where a pharmacy dispenses the wrong product.  But we think this purported Illinois exception—if it actually exists—is off kilter for a couple of reasons.  First, a drug manufacturer has no duty to take into account an individual patient’s susceptibilities, so long as it adequately warns regarding a drug’s known and reasonably scientifically knowable risks.  It therefore makes little sense to say that an intermediary should have a duty to consider a patient’s idiosyncratic susceptibilities merely by virtue of selling the drug.  Second, the law should not impose a duty to interfere with a patient’s medical treatment as prescribed by his or her physician, which is exactly that this purported duty would accomplish.

Most significantly for the motion to remand in Peoples, the plaintiff did not allege that the local pharmacy knew of any particular susceptibility, probably because such an allegation would not be true.  Yet, the district court still seized on this purported opening to find the possibility of a duty on the part of the pharmacy.  As a result, no fraudulent joinder, remand granted.  Id. at *4. 

As the district judge in Peoples was completing her order granting remand, her neighbor down the hall was busy denying remand on similar facts in Hale v. Bayer Corporation, No. 15-cv-00745, 2015 U.S. Dist. LEXIS 123517 (S.D. Ill. Sept. 16, 2015).  In Hale, the product was an over-the-counter pain reliever, but the pharmacy was the same Illinois-based company, and it was sued for the same disingenuous reason—to block removal jurisdiction.  In Hale, the plaintiffs sued in Madison County, Illinois, another forum notoriously well-liked by plaintiffs, and the defendants removed.  This time, however, the district court held that the pharmacy was fraudulently joined, citing the same Illinois authority and even quoting the same passage.  Id. at **5-8 (quoting Walton).  As in Peoples, the plaintiff did not allege that the pharmacy knew of any particular susceptibility, and the discovery taken to date revealed that the plaintiff had filled prescriptions at other pharmacies.  Id. at *5.  Thus, although the plaintiff alleged that he purchased drugs from the pharmacy, that alleged no more than a “consumer relationship” under which the pharmacy owed him no duty of care.  Id. at **7-9.  The court concluded that the law “demand[s] that a plaintiff allege facts sufficient to bring a claim within a legally recognized cause of action.  A plaintiff may not rely on conclusions of law or fact unsupported by specific factual allegations.”  Id. at *9. 

So returning to our theme, when presented with very similar cases, one district judge sanctioned the plaintiff’s effort to stay in state court by finding on the slimmest of authority that a local pharmacy could owe an actionable duty.  Another sanctioned the plaintiff’s obvious forum manipulation by denying remand and rejecting potential liability where the law did not support it.  The only way we can reconcile these orders is to say we agree with the former and not the latter.  In the end, we will refrain from commenting further on these two cases; or maybe we will make fraudulent joinder our constant refrain.  Put another way, we could wind up this post now, or we could wind up to pitch additional pithy commentary on one of our favorite topics.  You see what we did there?