Fentanyl patch death case will return to state court after Fifth Circuit dismisses appeal

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by Eric Pearson

In early 2009, Joseph Fontenot died in a Louisiana hospital after being administered a transdermal pain patch. His wife and six children filed suit in Louisiana state court, asserting tort claims against the hospital and various entities involved in the manufacture and sale of the pain patches. The defendants include Watson Pharmaceuticals, Inc., Watson Laboratories, Inc. and Watson Pharma Inc.

The non-healthcare provider defendants removed the case to federal court. The removing defendants argued that the Louisiana hospital, doctor and nurse were not proper parties to the lawsuit because Louisiana law requires medical malpractice claims to first go through a state medical review panel process. If the non-diverse (i.e. from Louisiana) healthcare providers were removed form the case, there would be complete diversity: Louisiana plaintiffs versus non-Louisiana corporations. The district court agreed and dismissed the non-diverse defendants (the hospital, doctor and nurse).

Then, the medical review panel completed its work. Consequently, the plaintiffs requested leave to file an amended complaint that would join the non-diverse healthcare providers and the previously dismissed claims against them. The patch manufacturer defendants objected.

The court determined that the issue was whether the now-mature claims against the non-diverse health are providers should be allowed to be added to the lawsuit. The court ruled that a motion for leave to amend to add a non-diverse party whose inclusion would destroy diversity and divest the court of jurisdiction is governed by § 1447(e) and triggers the application of the factors enunciated by the Fifth Circuit in Hensgens v. Deere & Co., 833 F.2d 1179 (5th Cir.1987). The four factors are (1) “the extent to which the purpose of the amendment is to defeat federal jurisdiction”; (2) “whether the plaintiff has been dilatory in asking for amendment”; (3) “whether plaintiff will be significantly injured if amendment is not allowed”; and (4) “any other factors bearing on the equities” in the case at hand. Id. The provisions of 28 U.S.C. § 1447(e) provide that [i]f after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court is vested with broad discretion to “deny joinder, or permit joinder and remand the action to the State court.”

The court ultimately decided to permit the amendment adding the non-diverse defendants. Thus, diversity was destroyed and the case was ordered to be remanded back to the state court. The Watson defendants appealed. The Fifth Circuit has now dismissed the appeal. Fontenot v. Johnson & Johnson, No. No. 12-30711 (June 10, 2013).

The Fifth Circuit followed the general rule that orders remanding a case to state court are not subject to review on appeal. The court of appeals determined that the statute barring appellate review of an order remanding a case to the state court from which it was removed applies when subject matter jurisdiction is lost after removal. See 28 U.S.C.A. §§ 1447(c) and 1447(d).

The court of appeals also rejected an argument that the district court’s ruling on joinder was separately subject to appeal. The Fifth Circuit concluded the alleged error in the district court’s joinder ruling was neither “effectively unreviewable on appeal from a final judgment” nor “too important” to be denied review.

As a practical matter, the dismissal of the Watson Defendants’ appeal means that the fentanyl patch lawsuit will be returned to the Louisiana state court where it was originally filed by Fontenot’s surviving wife and children.

Fentanyl Patch Litigation at Heygood, Orr & Pearson

Heygood, Orr & Pearson has successfully prosecuted more cases involving deaths due to fentanyl products than all the other firms in the country combined. We have spent years studying fentanyl, its uses and its misuses. We have deposed hundreds of doctors, scientists and experts on the subject of fentanyl products.

In the very first jury trial by the lawyers of Heygood, Orr & Pearson against makers of a fentanyl transdermal pain patch, a Florida jury awarded a $5.5 million verdict to the family of a man who died while wearing a Duragesic pain patch. More recently, Heygood, Orr & Pearson obtained a $16 million verdict for the family of a Cicero, Illinois woman who died while wearing a Duragesic pain patch.

Fatal mistakes that our firm has seen doctors commit in prescribing fentanyl patches include:

  • Overestimating the initial dose of fentanyl patches
  • Prescribing them for acute or post operative pain
  • Prescribing fentanyl patches to opioid naïve patients
  • Prescribing fentanyl patches to patients with significant pulmonary problems
  • Prescribing fentanyl patches at the same time as other CNS depressant medications

If you or a loved one has experienced the tragedy of losing a family member as a result of Fentanyl pain patch usage, you and your family deserve answers to your questions. If the loss was as a result of a prescribing error, you have the right to demand that the responsible healthcare provider be held accountable. Contact us for a free consultation so we can help you determine the best way to protect your legal rights and interests.

To receive a free legal consultation and find out if you are eligible to file a case, please call our toll-free number at 1-877-446-9001, or by filling out our free case evaluation form located on this page.