Sometimes we feel just like Phil Connors when he said: “I told you. I wake up every day, right here, right in Punxsutawney, and it's always February 2nd, and there's nothing I can do about it.” That about sums up our feelings about the Yasmin/Yaz MDL – We wake up, right here in Southern District of Illinois, and it’s always pharmacist liability and fraudulent joinder, and there’s nothing we can do about it. We thought the Seventh Circuit had put this issue to bed in Walton v. Bayer Corp., 643 F.3d 994 (7th Cir. 2011). But, here we are one year later – and plaintiffs continue to file claims against pharmacies/pharmacists in the Yasmin/Yaz MDL in the hopes of beating diversity and having their cases remain in the South Illinois judicial hellholes (St. Clair County in this case). Like Phil Connors, plaintiffs seem determined to re-live the same issue over and over again. Like Phil Connors, plaintiffs make small changes to their argument each time in hope that the result will turn out differently. But, unlike Phil Connors, we don’t see plaintiffs breaking out of this loop – the issue has been decided and it’s time to move on.
The most recent case on pharmacy/pharmacist liability and fraudulent joinder is Martin v. Moody’s Pharmacy, 2012 U.S. Dist. LEXIS 80863 (S.D. Ill. Jun. 12, 2012). And, since this is a repeat performance by plaintiffs, it is somewhat of a repeat performance for us as well. You can see our prior posts on Walton and pharmacy liability in the Yasmin/Yaz MDL here and here. In fact, it’s only been a few weeks since the last Yasmin/Yaz pharmacy liability/fraudulent joinder decision. So we’ll dispose of the basic issues quickly.
Plaintiff’s failure to warn claim is premised on the allegation that defendants failed to warn about the risks of taking YAZ for someone suffering from arteriovenous malformation (AVM) (a vascular condition which includes a heightened risk of hermorrhage). Id. at *4. In addition to suing the manufacturer, plaintiff sued her non-diverse pharmacy and pharmacists. On that claim, plaintiff Martin, like plaintiffs in the prior cases, tried to rely on a narrow exception to pharmacy non-liability in Illinois where the pharmacist has actual, subjective knowledge of a reason why a particular drug is contraindicated in a particular patient. Happel v. Wal-Mart Stores, Inc., 766 N.E.2d 1118 (Ill. 2002) See Martin, 2012 U.S. Dist. LEXIS at *18-20 (discussing Happel). In deciding plaintiff’s motion to remand and the pharmacy defendants’ motion to dismiss, the court found that plaintiff missed the mark on the “actual knowledge” requirement:
the allegations of this most artfully crafted complaint do not specify that [the pharmacy] or The Pharmacist defendants had actual knowledge of the decedent’s AVM condition. There is no allegation that anyone had specifically advised the non-diverse defendants of the decedent’s condition, or that the pharmacy had previously filled prescriptions related to the decedent’s AVM condition, or that the pharmacy had asked about any complicating factors. All that is alleged is that the non-diverse defendants should have known of the risks inherent in YAZ for a person with AVM.
Id. at *10. And, that’s not enough.
But, plaintiff here did try an additional argument that we thought warranted bringing this otherwise been-there, done-that case to our readers' attention. And it’s about another issue that really sticks in our craw – prohibition of ex-parte, informal defense interviews with treating physicians of plaintiffs in personal injury cases. Yes, Illinois is one of those states in which defense counsel don’t have equal rights with plaintiffs for informal discussions with treating doctors.
[W]hen an ex parte communication has taken place between defense counsel and a treating physician, . . . sanctions may be imposed upon the defendant, including reversal of the judgment in favor of the defendant and the award of a new trial.
Id. at *23-24 (citations and quotation marks omitted) (discussing Petrillo v. Syntex Labs, Inc., 499 N.E.2d 952 (Ill. App. Ct. 1986)).
We’ve blogged numerous times about the importance of both sides in personal injury litigation – and especially drug/medical device product liability litigation involving the learned intermediary rule – having equal rights to talk to treating/prescribing physicians. Here is yet another reason – plaintiff’s attempt to extend a ban on informal interviews with treating physicians to pharmacists and thus to prevent defendants from establishing fraudulent joinder.
Plaintiff’s position in Martin is even more absurd given that the pharmacists were themselves defendants, but we’ll get to that in a minute. First, just a quick reminder of why this issue gets us riled up. It is not because defendants don’t get to conduct informal interviews of plaintiff’s treating physicians, but rather because we don’t and plaintiffs do. All we want is for both sides to have to play by the same set of rules. If that means instituting certain procedural safeguards (like authorizations or notice to opposing counsel) before informal interviews can be conducted – so be it. As long as those restrictions apply to both plaintiff and defense counsel. This has worked just fine in mass tort litigation in states where defense informal interviews are allowed, like New York and In re Bausch & Lomb Contact Lens Solution Product Liability Litigation, Index No. 766000/2007 (N.Y. Sup.). See also Arons v. Jutkowitz, 880 N.E.2d 831, 837 (N.Y. 2007) (informal interviews with plaintiffs’ treaters are allowed, subject to notice and filling out some forms).
Unfortunately, a defense ban on informal interviews, such as Illinois’, allows plaintiffs to do whatever they want, while the defendants are stuck having to play solely by the rules of formal discovery. The type of formal discovery not available at the time of removal -- which takes us off our soapbox and back to Martin.
In support of the removal petition, the manufacturer-defendant included affidavits from the pharmacist-defendants establishing their lack of knowledge of plaintiff’s medical condition. Martin, 2012 U.S. Dist. LEXIS 80863 at *25-26. Plaintiff attempted to exclude the affidavits arguing that they were obtained via improper ex-parte communications with plaintiff’s pharmacists. Id. at *23. Plaintiff further argued that because the pharmacy/pharmacists had not entered their appearances in the case, the manufacturer-defendant couldn’t obtain discovery from them. Like we said, one-sided litigation practices encourage plaintiff trickery. If the court had favored plaintiff’s argument, plaintiff could put in her own affidavit to support her allegations about conversations with the pharmacists (see discussion of plaintiff affidavit, id. at *27-28) but defendants would be left out in the cold – no formal discovery, no informal discovery, no evidence.
Fortunately, the court readily dismissed plaintiff’s argument on two grounds – the pharmacists were parties to the lawsuit and the ban on communications with treating physicians did not extend to pharmacists:
The Court notes that despite plaintiff's assertion to the contrary, the non-diverse defendants were not required to file an entry of appearance in Illinois courts before consenting to removal in this Court. Nor is there a pharmacist-patient privilege extension of the Petrillo doctrine applicable in this case. To apply plaintiff's logic would be to effectively prohibit defendants joined by a plaintiff to a cause of action from communicating about their defense, a scenario not warranted by Petrillo.
Id. at *24-25. Moreover, the manufacturer obtained the affidavits through the pharmacists’ counsel, so there was no ex-parte communication. Id. at *24.
If the Yasmin/Yaz MDL is our Groundhog Day, we’re OK watching remand get denied over and over -- at least it’s not February in western Pennsylvania and we aren’t waking up to “I’ve Got You Babe” every morning.