01377848.1

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

ROBERT BLANKENSHIP, )

)

Plaintiff, )

)

vs. ) CIVIL ACTION NUMBER

) 2:06-cv-0648-MHT

PFIZER, INC., BOEHRINGER )

INGELHEIM PHARMACEUTICALS, )

INC., DAVID ROHLING, KMART OF )

MICHIGAN, INC., ART REDDING, )

KELLI STRANGE, )

)

Defendants. )

BRIEF IN OPPOSITION

TO PLAINTIFF’S MOTION TO REMAND

Defendant Boehringer Ingelheim Pharmaceuticals, Inc. (“BIPI”) respectfully submits this

Brief in opposition to plaintiff’s Motion to Remand. Plaintiff has sought to evade federal

jurisdiction by joining two non-diverse individuals, one a BIPI sales representative and the other

a pharmacist, against whom he has no valid cause of action under Alabama law. The Court

should deny plaintiff’s Motion to Remand because these two non-diverse defendants have been

fraudulently joined.

Plaintiff’s joinder of pharmaceutical sales representative David Rohling and pharmacist

Kelli Strange is fraudulent because none of his claims against them can possibly succeed under

Alabama law. Defendant Strange performed a single act with regard to plaintiff and Mirapex®:

she dispensed an FDA-approved medication in accordance with a physician’s instructions.

Under Alabama law, Strange cannot face liability for such activity. Plaintiff does not allege that

Strange improperly filled the prescription. Rather, he alleges that she failed to warn about an

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alleged association between Mirapex® and compulsive gambling. Because Alabama law

imposes no duty to warn on a pharmacist when the prescription is regular and valid on its face,

plaintiff has no valid cause of action under Alabama law against Strange. Walls v. Alpharma

USPD, 887 So.2d 881, 886 (Ala. 2004); Lansdell v. American Home Products Corp., 1999 WL

33548541 (N.D. Ala. Oct. 26, 1999); Sanks v. Parke-Davis, 2000 WL 33910097 (M.D. Ala.

2000).

In addition, plaintiff’s claims against David Rohling, a BIPI sales representative, are

invalid under Alabama law because he is not a seller or manufacturer of Mirapex® and because

pharmaceutical sales representatives have no duty to warn under recent and controlling authority.

First, AEMLD claims are only valid against sellers or manufacturers of a product, and Rohling is

neither; rather, he is a sales representative who merely detailed the product. Second, controlling

law on the issue of duty in a failure to warn claim plainly instructs that any duty to warn was

owed by BIPI, not Rohling, an individual employee. In the recent case of Legg v. Wyeth, 428

F.3d 1317 (11

th Cir. 2005), the court emphasized this important point and at least two other

Alabama District Courts have adhered to this decision. See Gordon v. Pfizer, Inc., No. CV-06-

RRA-70-E, 2006 WL 2337002 at * 7 (N.D. Ala. May 22, 2006); Southern v. Pfizer, Inc., Case

No.: 2:06-CV-836-VEH at *9-*15 (N.D. Ala. June 23, 2006). This Court should apply current

law, and deny plaintiff’s motion to remand.

Because plaintiff’s claims against Strange and Rohling have no reasonable possibility of

succeeding under current Alabama law, this Court should deny plaintiff’s motion to remand and

retain jurisdiction over this case.

BACKGROUND

In this pharmaceutical products liability action, plaintiff alleges he ingested the

pharmaceutical medication Mirapex® which caused him to develop compulsive gambling and

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incur substantial financial losses. Plaintiff asserts claims under the Alabama’s Extended

Manufacturer’s Liability Doctrine (“AEMLD”) and for negligence, wantonness and fraud against

the two companies responsible for manufacturing, marketing and distributing Mirapex®, BIPI

and Pfizer Inc. (“Pfizer”), and a BIPI sales representative named David Rohling. See Complaint.

Plaintiff’s Complaint asserts the same four claims against Kmart of Michigan, Inc. (“Kmart”),

the pharmacy which allegedly filled plaintiff’s prescriptions for Mirapex®, and two of its

pharmacists, Art Redding and Kelli Strange. BIPI, Pfizer, Kmart and Redding are all nonresidents, therefore subjecting this action to federal diversity jurisdiction. Defendants Rohling

and Strange, who are alleged to be Alabama residents, were fraudulently joined as defendants in

an attempt to defeat diversity jurisdiction.

1

In support of their timely removal petition, the defendants submitted affidavits from Kelli

Strange and David Rohling. In her affidavit, Strange testified that as a Kmart pharmacist, she

did not develop, test, compound or manufacture Mirapex® and had no knowledge of any alleged

defects in the product. Strange Aff. ¶¶ 4-7. To the extent Strange did dispense Mirapex® to

plaintiff, she testified that she did so in accordance with the instructions from plaintiff’s

physician. Strange Aff. ¶ 3.

In his affidavit, Rohling testified that he is a sales representative for BIPI and has had no

involvement in the manufacturing or development of Mirapex® or in the preparation of the

warnings and other prescribing information that accompanies the product. Rohling Aff. ¶¶ 3, 6 &

9. Rohling testified that he has no medical or pharmaceutical training and that any knowledge he

obtained about Mirapex® was provided by BIPI. Rohling Aff. ¶¶ 5 &7. In addition, Rohling

1

Since the initial filing of the Complaint, plaintiff has voluntarily dismissed his claims against defendant Kmart. In

addition, defendant Redding is not alleged to be a resident of Alabama and as a result, has not been fraudulently

joined. The claims against Redding, however, should be dismissed on the same grounds that defendant Strange has

been fraudulently joined.

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stated that he has made no misrepresentations concerning the safety or efficacy of Mirapex® and

acted in good faith at all times in his dealings with physicians. Rohling Aff. ¶ 11.

Although plaintiff submitted his own affidavit and an affidavit from his physician, Dr.

Alan Prince, in support of his Motion to Remand, neither affidavit refutes or contradicts the

evidence presented by the defendants. See generally, Affidavit of Robert Blankenship and

Affidavit of Dr. Alan Prince (attached to plaintiff’s Brief in Support of Motion to Remand at

Exhibits D & E). Moreover, Dr. Prince never even identifies Rohling. Instead, Dr. Prince refers

to multiple "drug representatives" and "Mirapex detailers." Dr. Prince does not testify that he

ever met Rohling or had any discussions with him about Mirapex®, much less that Rohling

made any misrepresentations to him. Dr. Prince's testimony merely states:

During the entire time that Mr. Blankenship was taking the drug, I would

periodically meet with drug representatives who represented the manufacturer of

Mirapex. I was not aware of any association between Mirapex and compulsive

behavior including compulsive gambling. Shortly before taking Mr. Blankenship

off of Mirapex, which he had been on for approximately five and one-half years,

one of the Mirapex detailers told me that there was an association between

compulsive gambling and the use of the drug Mirapex.

Affidavit of Dr. Alan Prince. This testimony in no way contradicts Rohling's affidavit.

As a result, plaintiff is left only with his allegation that defendants Rohling and Strange

failed to disclose to plaintiff and/or Dr. Prince, the alleged association between Mirapex® and

compulsive gambling. Because Defendants Rohling and Strange had no legal duty to disclose

such information, however, they have been fraudulently joined to this action and should be

ignored in determining whether diversity jurisdiction exists.

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ARGUMENT

THE COURT HAS DIVERSITY JURISDICTION OVER PLAINTIFF’S CLAIMS

BECAUSE EACH NON-DIVERSE DEFENDANT HAS BEEN FRAUDULENTLY

JOINED.

I. Fraudulent Joinder Standard

The fraudulent joinder of corporate employees has become a common tactic in

pharmaceutical litigation by plaintiffs who seek to avoid federal court. It is well-settled that

“diversity jurisdiction ‘cannot be defeated by a fraudulent joinder of a resident defendant having

no real connection with the controversy.’” Bloodsworth v. Smith & Nephew, 2005 WL 3470337,

*3 (M.D. Ala. Dec. 19, 2005). Removal of this suit should not be thwarted by plaintiff’s attempt

to join improperly defendants Rohling and Strange in order to destroy diversity jurisdiction. As

the Supreme Court has stated, “the Federal courts should not sanction devices intended to

prevent a removal to a Federal court where one has that right, and should be equally vigilant to

protect the right to proceed in the Federal court... .” Wecker v. National Enameling & Stamping

Co., 204 U.S. 176, 186 (1907).

Under Eleventh Circuit law, fraudulent joinder can be established in one of three ways:

(1) when there is no possibility that the plaintiff can prove a cause of action

against the resident (non-diverse) defendant, or (2) when there is outright fraud in

the plaintiff’s pleading of jurisdictional facts, or (3) where a diverse defendant is

joined with a non-diverse defendant as to whom there is no joint, several or

alternative liability and where the claim against the diverse defendant has no real

connection to the claim against the non-diverse defendant.

Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11

th Cir. 1998). Here, there is no

possibility that plaintiff can prove any of his claims against defendants Rohling or Strange. The

possibility of recovery against the non-diverse defendants must be reasonable, not merely

theoretical. Bloodsworth, 2005 WL 3470337 at *4. “The potential for legal liability must be

reasonable, not merely theoretical. In considering possible state law claims, possible must mean

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‘more than such a possibility that a designated residence can be hit by a meteor tonight. That is

possible. Surely, as in other instances, reason and common sense have some role.’” Legg, 428

F.3d at 1325 n.5 (quoting Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313

F.3d 305, 312 (5th Cir. 2002) and Braden v. Wyeth, CV-04-PT-235-E (N.D. Ala. June 30,

2004)).

II. Defendant Kelli Strange Has Been Fraudulently Joined and Does Not Destroy

Diversity Jurisdiction.

Plaintiff’s Complaint asserts all four counts against defendant Kelli Strange (AEMLD,

negligence, wantonness and fraud). Kelli Strange is a pharmacist employed by Kmart who

allegedly filled plaintiff’s prescriptions for Mirapex®. Even assuming that Strange did fill

plaintiff’s Mirapex® prescriptions, plaintiff’s Complaint fails to state any claim under which

there is a reasonable basis to impose liability on Strange under Alabama law.

Plaintiff’s only claim against defendant Strange is that she, as the pharmacist that filled

plaintiff’s Mirapex® prescriptions, failed to warn plaintiff and/or his physician about an alleged

association between Mirapex® and compulsive behaviors. Plaintiff’s Complaint, however, does

not allege that Strange improperly filled any Mirapex® prescriptions. Strange has submitted an

affidavit in which she attests that to the extent she dispensed Mirapex® to plaintiff, she did so

strictly in accordance with the prescription of his physician. Strange Aff., ¶ 3.

Under Alabama law, a pharmacist is under no duty to warn a customer about the potential

side effects of a pharmaceutical product when filling a prescription that is valid and regular on its

face. Walls, 887 So.2d at 886. So long as the pharmacist dispenses a prescription drug in

accordance with the instructions of the prescribing physician, the learned intermediary doctrine

protects the pharmacist from liability as a matter of law. Id.; Lansdell v. American Home

Products Corp., 1999 WL 33548541 (N.D. Ala. Oct. 26, 1999); Sanks v. Parke-Davis, 2000 WL

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33910097 (M.D. Ala. Oct. 30, 2000) (finding that the defendant pharmacy had been fraudulently

joined where plaintiff merely claimed that the pharmacy failed to warn plaintiff about drug’s

side-effects because under Alabama law, pharmacies owe no such duty). The rule applies

whether the pharmacist is sued under the AEMLD, a negligence theory, or any other Alabama

law. Walls, 887 So.2d at 886.

Plaintiff’s efforts to minimize the holdings in Walls and Lansdell lack merit. Contrary to

plaintiff’s contentions, because the pharmacist has no duty to warn customers about the potential

side effects of pharmaceutical products, the controlling issue is whether the pharmacist dispensed

the prescription drug in accordance with the physician’s instructions; not whether the pharmacist

had knowledge of the alleged risks. See Walls, 887 So. 2d at 886. Plaintiff incorrectly relies on

Pace v. Parke–Davis, No: 3:00-3046 (N.D. Ala. Nov. 21, 2000) (Johnson, J.) and McCaffery v.

Warner-Lambert Co., et al., No. 4:00-2848 (N.D. Ala. Dec. 8, 2000) (Propst, J.) to support this

argument. Plaintiff’s Brief at p. 19 n.4. Contrary to plaintiff’s assertions, neither the Pace nor

the McCaffery cases involved claims against a pharmacist. In both Pace and McCaffery, the

courts held that the joinder of the plaintiff’s non-diverse prescribing physicians to the action did

not constitute fraudulent joinder. Neither Pace nor McCaffery address the issues presented here.

As plaintiff has not alleged, much less established, that defendant Strange failed to

properly dispense Mirapex® to plaintiff in accordance with his physician’s prescription, plaintiff

has no reasonable possibility of imposing liability against Strange based on the AEMLD or his

negligence, wantonness or fraud claims.

Additionally, plaintiff states no cause of action against Strange under the Alabama

Medical Liability Act (“AMLA”), which subsumes all claims against a “healthcare provider” in

the course of the healthcare relationship. See Ala. Code § 6-5-542 (1987); Ex parte Rite Aid of

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Alabama, Inc., 768 So.2d 960, 962 (Ala. 2000); Cackowski v. Walmart, 767 So.2d 319, 324 (Ala.

2000); Mobile Infirmary v. Delchamps, 642 So.2d 954 (Ala. 1994); Allred v. Shirley, 598 So.2d

1347 (Ala. 1992). The only cause of action available to a plaintiff under the AMLA is for breach

of the standard of care. Ala. Code § 6-5-542(2) (1987).

Plaintiff has failed to allege any breach of any standard of care by defendant Strange and

fails to offer any evidence of any breach, as required by the AMLA. Alabama Code § 6-5-551

(1987). Thus, on its face, the complaint makes no legally cognizable claim against Strange. For

this additional reason as well, Strange is fraudulently joined and due to be dismissed.

Lastly, plaintiff’s claims against Strange fail as a matter of law because he cannot show

any causal relationship between her conduct and the defects of which plaintiff complains.

Strange did not develop, test, compound or manufacture Mirapex®, had no knowledge of any

alleged defective condition of Mirapex®, and did not contribute to the alleged defect. Strange

Aff., ¶¶4-7. As such, plaintiff has no claim against Strange under Alabama law. See Fleming

Farms v. Dixie AG Supply, Inc., 631 So. 2d 922, 928 (Ala. 1994) (affirming summary judgment

for distributor on AEMLD claim where distributor received product from manufacturer in a

sealed container, received the product in its already defective condition and did not contribute to

the defect, had no knowledge of the defective condition, and had no opportunity to inspect the

product that was greater than that of the consumer’s).

III. Defendant Rohling Has Been Fraudulently Joined and Should Be Dismissed.

A. David Rohling Cannot Be Considered a “Seller” or “Manufacturer” Under

the Facts of This Case And Thus Cannot Be Held Liable Under The

AEMLD.

The first count of plaintiff’s Complaint seeks recovery under the AEMLD. The AEMLD

provides plaintiffs with a cause of action against “a manufacturer, or supplier, or seller, who

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markets a product not reasonably safe when applied to its intended use in the usual and

customary manner, [thereby] constitut[ing] negligence as a matter of law.” Casrell v. Altec

Industries, Inc., 335 So. 2d 128, 132 (Ala. 1976). There is no reasonable basis to predict that

plaintiff can prevail on such a claim because the AEMLD applies only to “sellers” and

“manufacturers” and Rohling cannot, under the specific facts and allegations in this case, be

considered either.

2

Because the purpose of the AEMLD is to place the burden of loss on those with the

authority to control the sale and distribution of products and who are in a better position to

compensate for losses caused by defective products, liability under the AEMLD has not been

extended to sales representatives. See In re Baycol, MDL 1431 *4-*5 (D. Minn. Mar. 26, 2004).

The manufacturer or seller of the product, rather than an individual sales representative, has the

authority to prevent the sale and distribution of products and is in the best position to shoulder

the financial burden for losses caused by defective products. Id. Many Alabama state court

decisions support the proposition that sales representatives cannot face liability as sellers under

the AEMLD. See, e.g., Turner v. Azalea Box Co., 508 So.2d 253, 254 (Ala. 1987) (noting that,

to state a cause of action under the AEMLD, “the plaintiff must prove that the defendant

manufactured and/or sold the allegedly defective product.”).

In addition, federal courts interpreting Alabama law have held that a sales representative

cannot be held liable under the AEMLD. See, e.g., Gordon v. Pfizer, Inc., 2006 WL 2337002, *

7 (N.D. Ala. May 22, 2006); Southern v. Pfizer, Inc., Case No.: 2:06-CV-836-VEH at *9-*15

(N.D. Ala. June 23, 2006); In re Rezulin Prods. Liab. Litig., 133 F. Supp. 2d 272, 287-88

(S.D.N.Y. 2001) (“The sales representative . . . neither manufactured, sold nor supplied [the

2

Plaintiff has also offered no evidence that Rohling is a “supplier” of Mirapex®. As established in his unrefuted

affidavit, Rohling never supplied or left samples of Mirapex® with plaintiff’s physician. Rohling Aff., ¶ 12.

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drug] . . . [but] was an agent of the manufacturer and seller. . . . In light of the Alabama Supreme

Court’s clear explanation of the AEMLD’s scope and purpose, there is no reasonable basis for

supposing that it would impose liability on the sales representative in this case.”); In re Baycol

Prods. Liab. Litig., MDL-1431 (D. Minn. Mar. 26, 2004) (discussing liability of a professional

representative under the AEMLD); In re Prempro Prods. Liab. Litig., 2006 WL 617981, *1

(E.D. Ark. Mar. 8, 2006) (“[T]here is no possibility that plaintiff can establish a claim against the

sales representative under the AEMLD.”) (citing Bloodsworth, 2005 WL 3470337, at *6).

In In re Rezulin, the court held that there was no reasonable basis to suppose that an

Alabama court would impose liability on a sales representative because such an individual was

not in a position to prevent the sales of defective drugs. In re Rezulin, 133 F. Supp. 2d at 288.

See also Bloodsworth, 2005 U.S. Dist. Lexis 38756 at *17-*22. Similarly, in In re Baycol Prods.

Litig., the plaintiffs asserted AEMLD claims against the manufacturer and several of its district

managers and sales representatives. The case, which was initially filed in Alabama state court,

was removed to federal court and transferred to the United States District Court for the District

of Minnesota. The defendants argued that joinder of the non-diverse district managers and sales

representatives constituted fraudulent joinder. In denying plaintiffs’ motion to remand, the court

studied the history of the AEMLD and held that its purposes would not be advanced in any way

by holding sales representatives individually liable. In re Baycol, MDL 1431 at *4-*5.

The court’s holding in Gordon is the most instructive. In Gordon, the plaintiff sued the

manufacturer and its sales representative for alleged defects in the prescription drug Bextra he

ingested. The case was initially filed in state court and removed to the United States District

Court for the Northern District of Alabama by the defendants who contended that the nondiverse sales representative had been fraudulently joined. In denying the plaintiff’s remand

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motion, the court concluded that plaintiff had no reasonably possible claim against the sales

representative under the AEMLD even though the sales representative had detailed the product

to plaintiff, a self-prescribing physician, based on the information provided to him by Pfizer, his

employer. Gordon, 2006 WL 23370002 at *7. The court reinforced that the AEMLD only

applies to sellers and manufacturers and that sales representatives or “detailers” do not fit these

categories. Id. The court noted that sales representatives, who have no personal involvement in

the manufacture, sale, design, testing or development of the products they detail, cannot be held

liable under the AEMLD. Id.

Here, plaintiffs do not even allege that Rohling had any involvement whatsoever in the

sale or distribution of Mirapex®. Indeed, in his supporting and unrebutted affidavit, Rohling

states that he had no involvement in the manufacture, development or testing of Mirapex® or in

the development or preparation of the prescribing information, package inserts and other written

warnings for the product. Rohling Aff., ¶¶ 6 & 8. In addition, as a BIPI sale representative,

Rohling obtained all his information about Mirapex® from BIPI. Rohling Aff., ¶ 7. Contrary to

the unsupported allegations in plaintiff’s brief (plaintiff’s Brief at p. 5), Rohling had no

obligation and was not expected to conduct independent research regarding Mirapex®. Rohling

Aff., ¶ 10. Lastly, at no time did Rohling make any misrepresentations about Mirapex® to Dr.

Prince, or any other physicians who may have prescribed Mirapex®. Rohling Aff., ¶ 11. As

discussed, plaintiff’s motion papers do not offer any evidence refuting these facts.

Plaintiff’s reliance on Clay v. Brown & Williamson Tobacco Corp., 77 F. Supp. 2d 1220

(M.D. Ala. 1999) and Seaborn v. R.J. Reynolds Tobacco Co., 1996 WL 943621 (M.D. Ala. Dec.

30, 1996) is also misplaced. Plaintiff’s Brief at p. 16. In both Clay and Seaborn, the non-diverse

individuals and entities named by the plaintiff had allegedly been involved in the sale and/or

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distribution of the defective products. There are no allegations here that defendant Rohling had

any involvement in the actual sale or distribution of Mirapex®.

3

In addition, both Clay and

Seaborn pre-date the Eleventh Circuit’s decision in Legg.

Given these undisputed facts, plaintiff has no reasonable possibility of stating a claim

against Rohling under the AEMLD because Rohling does not qualify as a “seller” or

“manufacturer” of Mirapex®.

B. Plaintiff Does Not Have a Valid Negligence, Wantonness or Fraud Claim

Against Defendant Rohling as He Did Not Owe Plaintiff a Duty to Disclose.

The final three counts of plaintiff’s Complaint assert claims of negligence, wantonness

and fraud against all of the defendants, including defendant Rohling. As already discussed,

plaintiff’s only contention is that the defendants failed to warn plaintiff and/or his physician

about the alleged association between Mirapex® and compulsive behaviors. Plaintiff offers no

evidence that Rohling made any affirmative statements, improper or otherwise, to plaintiff or his

physician.

The issue surrounding plaintiff’s negligence, wantonness and fraud claims is whether Mr.

Rohling can be held personally liable for failure to disclose an alleged defect. It is well

established under Alabama law, however, that corporate employees are not held strictly liable for

the wrongdoing of their corporation. "In order to hold an officer of a corporation personally

liable for the negligent or wrongful acts of the corporation, there must have been upon his part

such a breach of duty as contributed to, or helped bring about, the injury; that is to say, he must

be a participant in the wrongful act." Crigler v. Salac, 438 So. 2d 1375, 1380 (Ala. 1983)

3

Plaintiff’s reliance on Pace and McCaffery to support the argument that there is a possibility of imposing

liability on a sales representative under the AEMLD is misplaced. Plaintiff’s Brief at p. 17. Contrary to plaintiff’s

assertions, neither the Pace nor the McCaffery cases involved claims against sales representatives. As discussed

earlier, both Pace and McCaffery dealt with whether the joinder of the plaintiff’s non-diverse prescribing physicians

was fraudulent.

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(emphasis added) (quoting from FLETCHER'S CYCLOPEDIA OF CORPORATIONS § 1137 at 208

(1975)). In Crigler, the Alabama Supreme Court upheld a verdict against the officer of a

corporation that had converted the plaintiffs'grain, finding that the officer had personally

authorized, directed or actively participated in the conversion. Crigler, 438 So. 2d 1380.

With respect to products, the duty to provide warnings and risk information lies with the

product manufacturer, not the sales representative. Indeed, plaintiff’s Brief acknowledges this.

Plaintiff’s Brief at p. 17. (“In this case, BIPI had the duty to warn Robert Blankenship of the

dangers in association with the drug.”). In Montgomery Rubber & Gasket Co. Inc. v. Belmont

Machinery Co., 308 F.Supp.2d 1293, 1299 (M.D. Ala. 2004), this Court granted summary

judgment in favor of a seller's agent on a suppression claim. The Court found that Plaintiff had

not alleged or presented any evidence of any special circumstance that would give rise to a duty

to disclose on the part of the seller’s agent. Id.

In Bloodsworth, Judge Dement found that there was no reasonable basis under Alabama

law to support a claim for failure to warn, whether predicated on allegations of negligence or

wantonness. Id. at *7. The Court reasoned that pursuant to the learned intermediary doctrine as

adopted under Alabama law, any duty to warn is owed by the manufacturer to the doctor, not by

the sales representative. Id. ("Any duty to warn is owed by Smith & Nephew to the surgeon

who performed Mrs. Bloodsworth's procedures at issue; the duty is not owed by [the sales

representative]." Id. Moreover, the Court stated that it was inclined to agree that if plaintiff's

fraudulent suppression claim was premised solely upon a failure to warn, that that claim would

also have no reasonable basis. Id.

Similarly, in Gordon, the sales representative established that he was not a physician or

pharmacist and that all information he obtained about the risks and benefits of the product he

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detailed came from his employer. Gordon, 2006 WL 2337002 at *4-*5. As a result, the court

held that because plaintiff failed to prove that the defendant sales representative had any unique

or specialized knowledge or information about the product, beyond what was provided to him by

his employer, the defendant did not owe plaintiff a duty to warn. Id. at *9.

The facts in Gordon are analogous to those presented here. Rohling has certified that he

is not a physician or a pharmacist. Rohling Aff., ¶ 5. Rohling has also certified that any

knowledge he obtained about the risks and benefits of Mirapex® was provided to him by BIPI.

Rohling Aff., ¶ 7. Plaintiff has offered no evidence to refute these proofs. The Eleventh Circuit

made clear in Legg that district courts must consider affidavit testimony in determining whether

parties have been fraudulently joined. Legg, 428 F.3d at 1323 ("In the case at bar, the

Defendants submitted sworn affidavits that were undisputed and, in such a case, a court cannot

resolve a question of fraudulent joinder by refusing to consider the defendants'submissions.").

The Court further found that where plaintiff offers no evidence to dispute a sworn statement

submitted by defendants, the district court cannot remand the case based only on the allegations

in the complaint. Id. ("When the Defendants'affidavits are undisputed by the Plaintiffs, the court

cannot then resolve the facts in the Plaintiffs'favor based solely on the unsupported allegations

in the Plaintiffs'complaint.").

Given these unrefuted facts, plaintiff’s legal argument that Rohling had unique or

specialized knowledge about Mirapex® which imposed upon him an independent duty to warn,

is unsupported. That duty to disclose--as admitted by Plaintiff--is with the drug manufacturer.

To hold otherwise would be to hold an individual employee to be the guarantor of the accuracy

and completeness of written warnings, even though he had no involvement in their preparation

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(nor the skills and background to do so). As a result, plaintiff has no legally valid negligence,

wantonness or fraud claim against defendant Rohling.

C. Under Legg v. Wyeth and Its Progeny, Plaintiff Does Not Have a Valid

Fraud Claim Against Defendant Rohling

The Eleventh’s Circuit’s holding in Legg v. Wyeth precludes any possibility that plaintiff

has a valid fraud claim against Rohling. In Legg, plaintiffs asserted several claims against the

pharmaceutical manufacturer Wyeth and several of its sales representatives in connection with

the pharmaceutical Redux. Legg, 428 F.3d at 1319. Among other claims, plaintiffs asserted

claims for fraud based on allegations that the defendants made misrepresentations and

suppressed certain facts related to Redux. Id. at 1324. Wyeth removed the case on diversity

grounds, arguing that plaintiff had fraudulently joined non-diverse sales representatives. Id. at

1319. Wyeth supported its removal with the affidavits of its non-diverse sales representatives,

which stated in pertinent part:

My knowledge of the drugs I detailed was derived exclusively from education

provided to me by Wyeth. . . . I had no involvement in the development or

preparation of package inserts for any drugs, and had no control over content or

other written warnings. I was not expected, as a field sales representative, to

conduct independent research regarding the drugs I detailed, and did not do so. I

was not expected to, and did not, review independent scientific studies published

in journals unless they were supplied to me by Wyeth.

Id. at 1321.

To contradict the affidavits offered by the defendants, plaintiffs offered as evidence

voluminous training materials used by Wyeth and its sales representatives in marketing Redux,

as well as affidavits from several physicians stating that the sales representatives had made

representations to them. Legg, 428 F.3d at 1321. Plaintiffs argued that the training materials

they offered as evidence established: (1) that the sales representatives had knowledge of adverse

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events associated with Redux; and (2) that Wyeth prohibited its sales representatives from

disclosing this information to anyone outside the company, including prescribing physicians.

In addressing the district court’s remand of the case in light of all the evidence presented,

the Eleventh Circuit held that:

Quite simply, there is no reasonable basis to predict that an Alabama court would

find [the sales representative], as an individual employee, personally liable for

any wrongful action by Wyeth in the absence of evidence that [the sales

representative] either knew or should have known of Redux’s allegedly dangerous

effects.

Id. at 1324-25. The court elaborated on this point explaining that a fraud claim is untenable

against a pharmaceutical sales representative absent a showing of bad faith because the sales

representative is merely a conduit through which information is passed. Id. at 1324. In the case

at hand, there is no evidence that Rohling acted in bad faith.

In his motion to remand, plaintiff relies on many pre-Legg decisions and implores the

Court to ignore the Eleventh Circuit’s clear holding in Legg. Contrary to plaintiff’s contentions,

Legg does provide valid and persuasive authority on whether a fraud claim against a non-diverse

sales representative can defeat diversity jurisdiction. Simply because the Legg decision was

handed down in response to an appeal dealing with an award of costs and fees caused by a

removal petition does not negate the soundness and validity of the Eleventh Circuit’s reasoning.

Because remand decisions are not appealable to the Circuit Courts, it is necessary for a Circuit

Court wishing to provide guidance on removal issues to do so in deciding supplemental issues.

In addition, the Eleventh Circuit’s decision in Legg has been accepted and applied by

several federal courts which have held that simply alleging fraud against sales representatives

does not defeat diversity jurisdiction. In Southern, for instance, plaintiff alleged that the

defendant sales representatives committed fraud by promoting Neurontin for off-label uses and

failing to disclose known risks. In opposition to plaintiff’s remand motion, one of the sales

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representatives certified that she never promoted the product for off-label uses and that all of the

information she obtained about the product was obtained from her employer. Southern, Case No

2:06-CV-836-VEH at *5-*6. Relying on Legg, the court held that because the sales

representative was a mere conduit for the pharmaceutical company, plaintiff’s fraud claim could

not possibly survive in state court. Id. at *17.

The court’s holding in Gordon on this issue is directly on point. In Gordon, the plaintiff

claimed that he suffered a heart attack as a result of ingesting Bextra. Plaintiff brought suit

against the manufacturer and one of its sales representatives alleging several causes of action

including fraud. Plaintiff’s fraud claim was based on the contention that the manufacturer and its

sales representative failed to disclose that the drug could potentially cause heart attacks. The suit

was initially filed in Alabama state court but was removed to the United States District Court for

the Northern District of Alabama. In support of the defendants’ removal petition, the sales

representative submitted an affidavit which established, among other things, the he had no

medical or pharmaceutical education and that all his information about the risks and benefits of

Bextra was limited to the FDA-approved information that Pfizer provided to him.

In denying plaintiff’s motion to remand, the court addressed the validity of plaintiff’s

fraud claim under the facts and in light of the Legg decision. The court explained:

Without any competent evidence that [the sales representative] made knowing

misrepresentations or acted in bad faith – and particularly in light of [the sales

representative’s] statement that he had no specialized knowledge about Bextra

and relied entirely on information provided to him by Pfizer – there is no

‘reasonable probability’ that an Alabama court would conclude that he is liable

for fraud or misrepresentation.

Id. at *6.

The facts presented by Rohling’s affidavit are analogous with those presented to the

courts in Southern and Gordon. Plaintiff has offered no evidence that Rohling made any

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knowing misrepresentations about Mirapex® or acted in bad faith. In addition, Rohling has

testified that he has no medical or pharmaceutical background and that any knowledge he has

gained about the risks and benefits of the product was provided exclusively by BIPI. Rohling

Aff., ¶¶ 5 & 7. Plaintiff offers no evidence establishing that Rohling had any specialized

knowledge about Mirapex®. In light of these undisputed facts, there is no “reasonable

possibility” that an Alabama court would conclude that Rohling is liable for fraud or

misrepresentation.

D. Plaintiff Fails to Plead His Fraud Claim With Particularity to Satisfy Fed. R.

Civ. P. 9(b).

Plaintiff also cannot prevail on his fraud claim because he has failed to plead fraud with

particularity. Fed. R. Civ. P. 9(b) (requiring that allegations of fraud be stated with

particularity); Ala. R. Civ. P. 9(b) (stating that the Alabama rule is identical to the federal rule).

Particularity “requires plaintiff in pleading fraud to distinguish among defendants and specify

their respective role in the alleged fraud.” McAllister Towing & Transp. Co. v. Thorn’s Diesel

Serv. Inc., 131 F.Supp.2d 1296, 1302 (M.D.Ala. 2001). Plaintiff’s Complaint merely lumps all

the defendants together and fails to attribute any specific conduct to defendant Rohling

individually. Nor does the Complaint describe one alleged conversation that occurred between

plaintiff’s physician and Rohling. The Complaint fails to identify any particular representation

by Rohling, much less a time, date and place when this alleged fraud occurred. Even the

affidavits submitted by plaintiff in support of his Motion to Remand do not cure this deficiency.

As a result, the Complaint fails to meet the requirements of Fed. R. Civ. P. 9(b). Gordon, 2006

WL 23370002 at *6-*7 (denying plaintiff’s remand motion, in part, because plaintiff failed to

plead his fraud claims against the defendant sales representative with sufficient particularity

including the time, date and place of the alleged misrepresentations).

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CONCLUSION

For the foregoing reasons, Defendant Boehringer Ingelheim Pharmaceuticals, Inc.

respectfully request that the Court deny plaintiff’s Motion to Remand.

/s/Maibeth J. Porter

MAIBETH J. PORTER

ALVIN L. (“PECK”) FOX

EDWARD A. (“TED”) HOSP

MARCIE P. BRASWELL

Attorneys for Defendant Boehringer Ingelheim

Pharmaceuticals, Inc.

OF COUNSEL:

MAYNARD, COOPER & GALE, P.C.

Attorneys at Law

Suite 2400 AmSouth/Harbert Plaza

1901 Sixth Avenue, North

Birmingham, Alabama 35203-2602

Telephone: (205) 254-1000

Telecopier: (205) 254-1999

Ms. Beth S. Rose

Mr. Stuart M. Feinblatt

Ms. Jennifer Ewers Hurley

SILLS CUMMIS EPSTEIN & GROSS, P.C.

One Riverfront Plaza

Newark, N.J. 07102

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01377848.1

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing has been served upon the following counsel

of record to this proceeding by United States Mail, properly addressed and postage prepaid, or as

indicated below, this 21st day of August, 2006:

Mr. J. Gregory Allen

Beasley, Allen, Crow, Methvin, Portis & Miles, P.C.

P. O. Box 4160

Montgomery, AL 36103-4160

Mr. L. Shane Seaborn

Penn & Seaborn, LLC

P. O. Box 688

Clayton, AL 36016-0688

Mr. F.M. “Tripp” Haston, III

Andrew B. Johnson

Bradley Arant Rose & White LLP

One Federal Place

1819 5

th Ave. North

Birmingham, AL 35203

Mr. Philip F. Hutcheson

Boardman, Carr, Weed & Hutcheson, P.C.

400 Boardman Dr.

Chelsea, AL 35043-8211

/s/Maibeth J. Porter

OF COUNSEL

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