IN THE UNITED STATES DISTRICT COURT 

MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

BETTY WEATHERS, * 

 * 

 Plaintiff, * 

 * 

v. * CASE NO.: 2:06-cv-0666-WHA 

 * 

ELI LILLY AND COMPANY, et al. * 

 * 

Defendants. * 

PLAINTIFF’S BRIEF IN SUPPORT OF MOTION TO REMAND

COMES NOW the Plaintiff, Betty Weathers, and hereby submits her brief in 

support of her Motion to Remand. Defendant, Eli Lilly and Company, has failed to 

establish that this Court has jurisdiction over this proceeding, and, as a result, the 

Plaintiff’s Motion to Remand is due to be GRANTED, and this cause remanded back to 

the Circuit Court of Elmore County, Alabama for the following reasons: 

1. This Court lacks subject matter jurisdiction. The Plaintiff and one of the 

named Defendants are citizens of Alabama. As such, complete diversity of jurisdiction is 

absent. Defendant Lilly has failed to establish that Defendant Yolanda McCain 

(“Individual Resident Defendant”) was fraudulently joined as a party to this cause to 

defeat federal jurisdiction. Defendant has failed to establish that there is “no possibility” 

that the Plaintiff can prevail in state court against the Individual Resident Defendant. In 

fact, the allegations made against the Individual Resident Defendant are sufficiently 

pleaded under and supported by Alabama law. Further, the allegations set forth in 

Plaintiff’s state court complaint adequately set forth factual and legal bases to support the 

claims against averred against the Individual Resident Defendant, and the stated 

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allegations clearly indicate that the Individual Resident Defendant acted independently 

and in concert with Defendant Lilly. Joint and several liability and alternative liability, 

contrary to the confusing arguments of Defendant Lilly, are well-recognized methods of 

pleading under Alabama law. 

2. Legg v. Wyeth does not support the conclusion that joinder of the Individual 

Resident Defendant was fraudulent. 

I. STATEMENT OF FACTS AND PROCEDURAL HISTORY

 This product liability action arises from the injuries of Betty Weathers as a result 

of taking the prescription drug Zyprexa® (olanzapine), a prescription drug designed to 

treat schizophrenia, bipolar mania, and other mental/mood conditions. As set forth in her 

state-court complaint, Ms. Weathers was prescribed and used Zyprexa® and as a result 

suffered the onset of diabetes mellitus. Ms. Weathers ingested the prescription 

medication Zyprexa® and the damages and injuries resulting from Ms. Weathers’ use of 

the prescription medication Zyprexa® occurred in Elmore County, Alabama. As a direct 

and proximate result of Ms. Weathers consuming Zyprexa®, she suffered injuries 

including the onset of diabetes mellitus, physical pain and suffering, emotional distress, 

and other damages as set forth in more detail in the state-court complaint. 

Defendant Lilly, the Individual Resident Defendant, and/or the named fictitious 

defendants designed, manufactured, marketed, distributed, and/or sold Zyprexa®, despite 

knowing that Zyprexa® caused serious and potentially life-threatening side effects. The 

Defendants, jointly and severally, encouraged the use of Zyprexa® through an aggressive 

marketing campaign, including through its sales representatives detailing physicians, and 

through direct-to-consumer advertising. The direct-to-consumer advertising included 

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advertisements on television and in major magazines and newspapers as well as direct 

mail throughout Alabama. In addition, the Defendants misrepresented the effectiveness 

of Zyprexa® and concealed the known and serious side effects from physicians and from 

the consuming public, including Ms. Weathers. The Defendants knew of the defective 

and unreasonably dangerous nature of Zyprexa®, yet continued to design, manufacture, 

and sell Zyprexa® so as to maximize gross sales and profits in conscious disregard of the 

foreseeable harm to be caused by Zyprexa®. Though the Defendants were aware that 

Zyprexa® was unreasonably dangerous as designed, they failed to adequately test 

Zyprexa® and failed to warn the public of the drug’s dangerous propensities. The 

Individual Resident Defendant or the sales representatives who detailed the prescribing 

physician in this cause were informed of the drug’s dangerous propensities, but 

participated in the scheme to suppress and withhold this information from physicians and 

the consuming public. The sales representatives, in concert with Defendant Lilly, 

benefited by the suppression of this critical information by increasing the sales of the 

drug, which correspondingly increased commissions, bonuses and incentives earned from 

the sale of Zyprexa®. The Defendants also failed to provide Ms. Weathers with timely 

and adequate post-marketing warnings or instructions as additional information became 

available to the Defendants about the risks posed to those who ingested or would ingest 

Zyprexa®, including Ms. Weathers. 

Furthermore, Defendants failed to exercise ordinary care and were negligent in 

the manufacture, marketing, sale, and testing of Zyprexa® as it placed the drug into the 

stream of commerce. Despite their knowledge that Zyprexa® caused serious side effects, 

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the Defendants continued to market Zyprexa® to the public, including Ms. Weathers, 

when there were safer, alternative methods of treatment available. 

Defendant Lilly also breached express and implied warranties made in relation to 

Zyprexa®. Both before Ms. Weathers was first prescribed Zyprexa® and during the 

period in which she ingested Zyprexa®, Defendant Lilly expressly warranted and 

represented that Zyprexa® was safe, and impliedly warranted that Zyprexa® was safe 

and fit for its intended, ordinary uses. The fact that Defendant Lilly was providing false 

information to the public about Zyprexa® was known or became known to the Individual 

Resident Defendant and other sales representatives of Defendant Lilly throughout this 

country, and the company sales representatives became active participants in this mass 

cover-up of critical safety information. Ms. Weathers and her prescribing physician 

reasonably relied upon the representations of the Defendants and relied upon the 

Defendants’ superior knowledge as to the safety and fitness for the intended use of 

Zyprexa®. Contrary to the warranties and representations of the Defendants, Zyprexa® 

was not safe and could and did cause serious side effects and harm to those who took the 

drug, and accordingly was not fit for its intended, ordinary purpose. At the time the 

Defendants marketed, sold and distributed Zyprexa® for use by Ms. Weathers, the 

Defendants knew their representations about the safety of Zyprexa® were false, or they 

made those representations with reckless disregard for their falsity. The Defendants’ 

wrongful acts or omissions were a contributing or proximate cause of Ms. Weathers’s 

injuries. 

On July 13, 2006, Plaintiff filed suit in the Circuit Court of Elmore County, 

Alabama. Plaintiff asserted various causes of action against the Defendants, including 

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product liability under the AEMLD, negligence, breach of express warranty, breach of 

implied warranty, fraudulent suppression and concealment, and fraudulent 

misrepresentation. 

On July 25, 2006, the Defendants filed a Notice of Removal with this Court. 

Plaintiff now urges this Court to remand this action to state court in accordance with 28 

U.S.C. § 1447(c) and the authority referenced herein. 

II. SUMMARY OF ARGUMENT

 This case represents one of many attempts by Defendant Lilly to “manufacture” 

diversity jurisdiction, with total disregard for whether such jurisdiction actually exists. 

Lilly’s contention that the Plaintiff has named the Individual Resident Defendant as a 

tactic to attempt to defeat diversity is an affront to Plaintiff’s due process rights to seek 

relief from those who are responsible for Ms. Weathers’ injuries in the forum of her 

choosing. 

 This and other federal District Courts in the Eleventh Circuit have repeatedly 

rejected the frivolous attempts by Pharmaceutical Defendants to remove validly pleaded 

cases from state to federal court. See, e.g., Irvin v. Merck & Co., Inc., et al, Case No. 03-

80514-cv-Hurley (S.D. Fla. Oct. 9, 2003); Turner v. Merck & Co., Inc., et al, Case No. 

2:05cv702-T (M.D. Ala. Sept. 21, 2005); Struthers v. Merck & Co., Inc., et al., Case No. 

2:06cv127-MHT (M.D. Ala. March 13, 2006); Leverett v. Merck & Co., Inc., et al., Case 

No. 3:06cv128-MHT (M.D. Ala March 15, 2006).1

 Judge Myron Thompson in his 

remand orders in Struthers and Leverett, recently wrote: 

 

1

 See Exhibit “A”, attached and filed with this brief. See also Exhibit “D” for other federal districts courts 

which have ruled accordingly in other pharmaceutical-related litigation. 

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This lawsuit, which was removed from state to federal court based on 

diversity-of-citizenship jurisdiction, 28 U.S.C. §§ 1332, 1441, is now 

before the court on plaintiff’s motion to remand. The Court agrees with 

plaintiff that this case should be remanded to state court. First, there has 

not been fraudulent joinder of any resident defendant (that is, plaintiff has 

colorable claims against such a defendant), see Coker v. Amoco Oil Co., 

709 F.2d 1433, 1440 (11th Cir. 1983); Cabalceta v. Standard Fruit Co., 883 

F.2d 1553, 1561 (11th Cir. 1989). Second, there has not been fraudulent 

misjoinder of any resident defendant (that is, plaintiff has reasonably 

joined such a defendant with other defendants pursuant to Rule 20 of the 

Federal Rules of Civil Procedure), see Tapscott v. MS Dealer Service 

Corp., 77 F.3d 1353, 1360 (11th Cir. 1996). 

Judge Hurley, in his remand order in Irvin2, likewise held the plaintiffs presented 

colorable claims that, if proven, would subject the in-state, sales representative 

defendants to liability. These cases are indistinguishable from the present case. 

 Earlier this month, United States District Judge William Steele remanded five 

Zyprexa® cases filed in various circuit courts encompassed by the Southern District. 

Lilly unsuccessfully alleged fraudulent joinder as a means to disregard the citizenship of 

the in-state defendants. Judge Steele flatly rejected Lilly’s contention that judicial 

economy would be served by allowing the MDL court to decide the merits of the 

jurisdictional issues, and sharply criticized the “reflexive rule that automatically defers 

decision to an MDL court whenever it can be predicted that an issue at least superficially 

may arise in other transferred cases.” Betts v. Eli Lilly and Company, et al., Case No. 

06-0259-WS-B (S.D. Ala. June 5, 2006)3

. The instant case is nearly identical. 

 The sole question before this Court is whether this action should be remanded as 

having been improvidently removed. Removal is improper where complete diversity of 

 

2

 The Irvin case was removed from and remanded back to state court and resulted in the court charging 

costs and attorneys’ fees against Merck for its frivolous removals. Irvin v. Merck Co., Inc. Case No. 03-

80514-cv-Hurley (S.D.Fla. Feb. 14, 2005). See Exhibit “B” attached and filed with this brief. 3

 See Exhibit “C” attached and filed with this brief. 

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citizenship is lacking. In this case, the Plaintiff and the Individual Resident Defendant, as 

set forth in the state-court complaint, are residents of Alabama. Thus, this Court would 

not have had original jurisdiction had Plaintiff chosen to prosecute this action in federal 

court. 

 Defendant Lilly has wholly failed to establish that the Plaintiff fraudulently joined 

the Individual Resident Defendant as a means to defeat diversity of citizenship. The 

Plaintiff’s Complaint alleges claims against all the Defendants that, if proven at trial, will 

sustain a jury verdict against all Defendants. As averred and as set forth in more detail 

herein, the Individual Resident Defendant was an active participant in a scheme to 

mislead doctors and the consuming public about the dangers of the drug Zyprexa®. 

Pursuant to Alabama law, the Individual Resident Defendant can be found liable for her 

active participation in a fraudulent scheme in this state. 

III. STANDARD OF REVIEW

 Pursuant to 28 U.S.C. § 1447(c), after a case has been removed to federal district 

court but “at any time before final judgment,” the plaintiff may move for remand, and 

“the case shall be remanded [if] it appears that the district court lacks subject matter 

jurisdiction.” (Emphasis added.) It is well settled that federal courts are courts of limited 

jurisdiction and are “empowered to hear only cases within the judicial power established 

by Article III of the United States as authorized by Congress. See University of South 

Alabama v. American Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor v. 

Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)). Because the statutes governing removal 

are jurisdictional, and because removal jurisdiction raises significant federalism concerns, 

removal statutes must be strictly construed in favor of state court jurisdiction and against 

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removal. See Shamrock Oil & Gas v. Sheets, 313 U.S. 100, 108-09, 61 S. Ct. 868 

(1941); University of South Alabama, 168 F.3d at 411; Clay v. Brown & Williamson 

Tobacco Corp., 77 F. Supp. 2d 1220, 1221 (M.D. Ala. 1999) (DeMent, J.). 

 “An action is not properly removable if it consists of a non-separable controversy 

involving both resident and nonresident defendants.” Coker v. Amoco Oil Co., Inc., 709 

F.2d 1433, 1439 (11th Cir. 1983). Thus, where a removing defendant asserts federal 

subject matter jurisdiction based on an amount in controversy over $75,000 and the 

diversity of citizenship of the parties, the defendant must show there is actually complete 

diversity; that is, every plaintiff must be diverse from every defendant. Triggs v. John 

Crum Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998) (citing Tapscott v. MS Dealer 

Service Corp., 77 F.3d 1353, 1355 (11th Cir. 1996)). 

 In an action based upon a removal petition and a motion to remand, the defendant, 

as the removing party, bears the burden of establishing federal subject matter jurisdiction. 

See Pacheco de Perez v. AT & T Co., 139 F.3d 1368, 1373 (11th Cir. 1998). Because 

federal courts are courts of limited jurisdiction, all doubts about federal subject matter 

jurisdiction on removal should be resolved in favor of remand to state court, University 

of South Alabama, 168 F.3d at 411; Pacheco de Perez, 139 F.3d at 1373; Seroyer v. 

Pfizer, Inc., 991 F. Supp. 1308, 1312 (M.D. Ala. 1997); and all questions of fact and 

controlling law should be resolved in favor of the plaintiff, Shamrock Oil, 313 U.S. at 

108-09; University of South Alabama, 168 F.3d at 411. Accord Cope v. American Int’l 

Group, 2006 WL 317238 *1 (M.D. Ala. 2006) (Albritton, Senior J.) (“[T]he Eleventh 

Circuit favors remand of removed cases where federal jurisdiction is not absolutely 

clear.”). 

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IV. ARGUMENT

A. Diversity jurisdiction does not exist. 

 Defendant Lilly does not dispute that complete diversity is missing on the face of 

Plaintiff’s Complaint. Rather, Defendant Lilly, in contravention of the settled law of this 

State, contends that the citizenship of the Individual Resident Defendant should be 

disregarded on the ground that she was fraudulently joined. Defendant Lilly has failed to 

carry its burden on this issue and, thus, this cause is due to be remanded back to the 

Circuit Court of Elmore County, Alabama. 

 1. The standard for fraudulent joinder supports remand. 

 “Fraudulent joinder is a judicially created doctrine that provides an exception to 

the requirement of complete diversity.” Triggs, 154 F.3d at 1287. Arguments regarding 

fraudulent joinder fail if there is any possibility that a state court would find that the 

Complaint states a cause of action against a resident defendant. Id. at 1287. The 

removing party bears the burden of establishing fraudulent joinder. See Coker, 709 F.2d 

at 1440; see also, Pacheco de Perez, 139 F.3d at 1380; Cope at * 2. That burden is a 

heavy one. See Pacheco de Perez, 139 F.3d at 1380; Crowe v. Coleman, 113 F.3d 1536, 

1538 (11th Cir. 1997); B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (1981). To 

prove that a resident defendant has been fraudulently joined, the removing defendants 

must show either that “there is no possibility that the plaintiff would be able to establish a 

cause of action against the resident defendant in state court or that there has been outright 

fraud in the plaintiff’s pleading of jurisdictional facts.” Coker, 709 F.2d at 1440; 

Pacheco de Perez, 139 F.3d at 1380; Crowe, 113 F.3d at 1538. See also Triggs v. John 

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Crump Toyota, 154 F.3d 1284, 1287 (11th Cir. 1998)(setting forth three occasions when 

fraudulent joinder may exist). 

“While ‘the proceeding appropriate for resolving a claim of fraudulent joinder is 

similar to that used for ruling on a motion for summary judgment under Fed. R. Civ. P. 

56(b),’ the jurisdictional inquiry ‘must not subsume substantive determination.’” Crowe, 

113 F.3d at 1538 (quoting B. Inc., 663 F.2d at 550)(citations omitted). “[T]he trial court 

must be certain of its jurisdiction before embarking upon a safari in search of a judgment 

on the merits.” Id. (quoting B., Inc., 663 F.2d a 548-49). “When considering a motion 

for remand, federal courts are not to weigh the merits of a plaintiff’s claim beyond 

determining whether it is an arguable one under state law.” Crowe, 113 F.3d at 1538. 

According to the Court in Crowe: 

In terms of this circuit’s law, the main point for us is this one: For a 

plaintiff to present an arguable claim against an in-state defendant and, 

therefore, to require a case removed to federal court to be remanded to 

state court, the plaintiff need not show that he could survive in the district 

court a motion for summary judgment filed by that in-state defendant. For 

a remand, the plaintiff’s burden is much lighter than that: after drawing all 

reasonable inferences from the record in plaintiff’s favor and then 

resolving all contested issues of fact in favor of the plaintiff, there need 

only be “a reasonable basis for predicting that the state law might impose 

liability on the facts involved.” 

Id. at 1541-42 (quoting B., Inc., 663 F.2d at 550). 

 Stated differently, “[i]n the remand context, the district court’s authority to look 

into the ultimate merit of the plaintiff’s claims must be limited to checking for obviously 

fraudulent or frivolous claims.” Crowe, 113 F.3d at 1542. “Where there have been 

allegations of fraudulent joinder . . . the question is whether there is arguably a reasonable 

basis for predicting that the state law might impose liability on the facts involved. If that 

possibility exists, a good faith assertion of such an expectancy in a state court is not a 

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sham ... and is not fraudulent in fact or in law.” B., Inc., 663 F.2d at 550 (quoting Bobby 

Jones Garden Apartments v. Suleski, 391 F.2d 172, 177 (5th Cir. 1968)). 

2. The resident defendant was not fraudulently joined. 

Defendant Lilly has made no claim that Plaintiff fraudulently pleaded 

jurisdictional facts. Accordingly, this Court’s inquiry is limited to determining whether 

there is a possibility that the state court might find, under Alabama law, that the Plaintiff 

has asserted valid claims against the resident defendant. See Triggs, 154 F.3d at 1287; 

Crowe, 113 F.3d at 1538. Where, as here, the Notice of Removal is filed before the 

Plaintiff has had full opportunity to develop her claims against the Individual Resident 

Defendant through discovery, Alabama federal courts have assessed those claims in 

accordance with the standard of Fed. R. Civ. P. 11. See, Clay, 77 F. Supp. 2d at 1224 

(De Ment, J.); see also Sellers v. Foremost Ins. Co., 924 F. Supp. 1116, 1118-19 (M.D. 

Ala. 1996) (Thompson, J.). “[T]o block a fraudulent-joinder charge based on lack of 

evidence, a plaintiff who has not been able to engage in full discovery must be able to 

provide some showing that her claim against the resident defendant has evidentiary 

support or is likely to have evidentiary support after a reasonable opportunity for further 

investigation or discovery.” Sellers, 924 F. Supp. at 1119. “[T]o block a fraudulentjoinder charge based on lack of legal support, a plaintiff need only show that her claim 

against a resident defendant is warranted by existing law or by a non-frivolous argument 

for the extension, modification, or reversal of existing law or the establishment of new 

law.” Id. at 1119 n. * (emphasis in original). 

“If there is a possibility that a state court would find that the complaint states a 

cause of action against any one of the resident defendants, the federal court must find that 

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the joinder was proper and remand the case to state court.” Coker, 709 F.2d at 1440-41 

(citing Davis v. GMC, 353 F. Supp.2d 1203, 1207 (M.D. Ala. 2005) (emphasis added). 

The Plaintiff is not required to have a winning case against a resident defendant, but only 

have a possibility of stating a valid cause of action in order to defeat arguments of 

fraudulent joinder. Triggs, 154 F.3d at 1287. 

The Plaintiff has asserted valid claims under Alabama law against the Individual 

Resident Defendant.4

a. The Plaintiff has stated valid product liability 

(AEMLD) claims against the Individual Resident 

Defendants.

 

 To establish a prima facie case under the Alabama Extended Manufacturer’s 

Liability Doctrine (AEMLD), a plaintiff must demonstrate that: 

(1) He suffered injury or damages to himself or his property by one 

who sells a product in a defective condition unreasonably 

dangerous to the plaintiff as the ultimate user or consumer, if 

(a) the seller is engaged in the business of selling such a 

product, and 

(b) it is expected to and does reach the user or consumer 

without substantial change in the condition in which it is 

sold. 

(2) Showing the above elements, a plaintiff has proved a prima facie 

case although 

(a) the seller has exercised all possible care in the preparation 

and sale of her product, and 

(b) the user or consumer has not bought the product from, or 

entered into any contractual relation with, the seller. 

 

4

 Plaintiff does not contend that the Individual Resident Defendant is liable for the breaches of express and 

implied warranties in this cause, despite Defendant Lilly’s assertion to the contrary. 

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See Casrell v. Altec Industries, Inc., 335 So. 2d 128, 132-33 (Ala. 1976); Atkins v. 

American Motors Corp., 335 So. 2d 134, 141 (Ala. 1976). 

 It is well settled under Alabama law that employees of a company may be held 

liable for their active participation in the torts of the company. “[O]fficers and 

employees of a corporation are liable for torts in which they have personally participated, 

irrespective of whether they were acting in a corporate capacity.” Ex parte Charles Bell 

Pontiac, 496 So. 2d at 775 (citing Candy H. v. Redemption Ranch, Inc., 563 F. Supp. 

505, 513 (M.D. Ala. 1983)); see Clay v. Brown & Williamson Tobacco Corp., 77 F. 

Supp. 2d 1220, 1224 (M.D. Ala. 1999); see Seaborn v. R. J. Reynolds Tobacco Co., 1996 

WL 943621 (M.D. Ala., Dec. 30, 1996) (NO. CIV. A. 96-T-1540-N). 

 In the case at bar, the Individual Resident Defendant aggressively marketed 

Zyprexa® to healthcare professionals, including Ms. Weathers’ physician, by frequently 

calling on physicians, distributing samples to physicians to be given to patients, 

conducting educational seminars for physicians, and distributing sales literature to 

healthcare professionals and the consuming public. The Individual Resident Defendant, 

in communications with physicians, compared the efficacy of Zyprexa® to other existing 

drugs, sought to distinguish Zyprexa® from other drugs already on the market, and 

worked to persuade physicians to prescribe Zyprexa® to their patients. The Individual 

Resident Defendant provided physicians with Zyprexa® product information. 

Throughout these activities, the Individual Resident Defendant worked to increase the 

sales of Zyprexa® and her own personal financial gain. 

 Defendant Lilly and the Individual Resident Defendant had far superior 

knowledge of the efficacy and safety profile of Zyprexa® over that of prescribing 

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physicians and patients who took the drug. Ms. Weathers and her prescribing physician 

detrimentally relied on information provided by the Individual Resident Defendant. The 

Individual Resident Defendant provided false, fraudulent, incorrect, misleading and/or 

incomplete information (such as inadequate warnings of risks of harm and adverse effects 

from the use of Zyprexa®) to the prescribing physician, and the prescriber passed this 

erroneous information on to his patients, including Ms. Weathers. Ms. Weathers relied 

on such information through the representations of her physician. If these allegations are 

proven to be true, a finding of individual liability under AEMLD against the Individual 

Resident Defendant is more than a mere “possibility.” 

 In Clay and Seaborn, supra, this Court found that, to the extent a manufacturer 

defendant allegedly violated AEMLD, “it acted through its employees; the company does 

not employ ghosts.” Clay, 77 F. Supp. 2d at 1224; Seaborn, 1996 WL 943621, at *3. 

The Court allowed the plaintiffs to pursue the distributors and employee sales 

representatives individually -- even in the absence of any personal contact with the 

plaintiffs -- and to substitute new individual defendants in the event plaintiffs had named 

the wrong individuals at the outset. Significantly, the Court noted that discovery might 

well establish that the individual in-state defendant might have had superior knowledge to 

others, which could establish his independent liability under the AEMLD. 

 Other United States District Courts have also consistently rejected arguments that 

in-state defendant sales representatives are fraudulently joined in the context of products 

liability actions, seeking damages as the result of a defective drug. See Barry Pace, et al. 

v Parke-Davis, No. 3:00-3046 (N.D. Ala. Nov. 21, 2000)(Johnson, J.); see also Donald 

McCaffery v. Warner-Lambert Co., et al., No. 4:00-2848 (N.D. Ala. Dec. 8, 2000) 

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(Propst, J.); see also Acton v. R.J. Reynolds Tobacco Co., No. 96-C-2737-W (N.D. Ala. 

Oct. 23, 1996). And other United States District Courts have remanded pharmaceutical 

drug cases, such as the case at bar, to state courts or refused to stay the proceedings – 

perhaps, most notably, the Vioxx-related products liability cases. See, Landrum v. Merck 

& Co., Inc., et al., Case no. CV-05-01055-J (N.D. Ala. May 25, 2005) (holding that 

diversity jurisdiction was absent and remanding to state court, relying upon Marshand 

v.Wyeth, et al., CV-03-CO-319-5-W (N.D. Ala. 2004)); Sokarda, et al. v. Merck & Co., 

Inc., et al., Case no. SACV-05-177-JFW (MANX) (C.D. Calif. April 22, 2005) (holding 

that under California law, case should be remanded to state court based upon properly 

named in-state defendant); Amisch v. Merck Co., Inc., et al., Case no. 04-CV-847-DRH 

(S.D. Ill. Dec. 22, 2004) (holding that motion to stay pending JPML’s ruling on motion to 

transfer should be denied and that forum court should address subject matter jurisdiction, 

and remanding case to state court because defendant failed to meet its burden to sustain 

removal); Brame v. Merck & Co., Inc., et al., Case no. 05-034-GPM (S.D. Ill. Feb. 17, 

2005) (holding that defendant failed to meet its burden to establish fraudulent joinder, 

refusing to stay proceedings pending ruling by JPML, and remanding case back to state 

court); McQuay v. Merck & Co., Inc., et al., Case No. 05-038-GPM (S.D. Ill. Feb. 17, 

2005) (same); Tomlin v. Merck & Co., Inc., et al., Case no. 04-14335-CIV-Moore (S.D. 

Fla. Feb. 14, 2005) (holding that motion to stay pending JPML was inappropriate, 

holding that plaintiff adequately pleaded a claim against sales representative under 

Florida law, finding that there was no fraudulent joinder, and remanding the case back to 

state court).5

 

5

 See Exhibit “D”, attached and filed with this Brief. 

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 As Judge Ira DeMent wrote in Clay, 77 F. Supp. 2d at 1223, quoting de Perez, 

139 F.3d at 1380-81 and Crowe, 113 F.3d at 1538, “federal courts are not to weigh the 

merits of a plaintiff’s claim beyond determining whether it is an arguable one under state 

law.” The question of whether drug sales representatives can be held liable under the 

AEMLD is “an arguable under state law.” As a result, the Plaintiff has stated “possible” 

viable claims against the Individual Resident Defendant. 

 b. The Plaintiff has alleged valid claims of fraud, fraudulent 

misrepresentation, fraudulent suppression and concealment 

against the Individual Resident Defendant. 

Under Alabama law, in order to state a claim for fraud and fraudulent 

misrepresentation, a plaintiff must show that the defendant made a misrepresentation of 

material fact, that he made it willfully to deceive, recklessly, without knowledge, or 

mistakenly, that the misrepresentation was justifiably relied on by the plaintiff under the 

circumstances, and that the misrepresentation caused damage as a proximate 

consequence. Ala. Code § 6-5-101 (1975); Harrington v. Johnson-Rast & Hays Co., 577 

So.2d 437 (Ala.1991). In the case at bar, Plaintiff alleges that Defendant Lilly and the 

Individual Resident Defendant, together or separately, negligently, recklessly, 

intentionally and fraudulently made material misrepresentations that Zyprexa® was safe. 

The Individual Resident Defendant did so with the intent to induce physicians to 

prescribe and for consumers, including Ms. Weathers, to purchase Zyprexa®. Moreover, 

Plaintiff alleges that, at the time the Defendants made these representations, the 

Defendants were aware of the falsity of these representations and/or made these 

representations with reckless disregard to the truth. Plaintiff also alleges that she and her 

 

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prescribing physician detrimentally relied upon the material misrepresentations and 

suppressions of the Defendants and, as a result, suffered serious injuries. 

 Defendant Lilly asserts in its Notice of Removal that claims of fraud cannot be 

maintained against the Individual Resident Defendant. District Courts in Alabama have 

repeatedly rejected similar fraudulent joinder claims in the context of fraudulent 

misrepresentation and suppression claims against pharmaceutical sales representatives 

and have remanded these cases to state court. See Floyd v. Wyeth, No. 03-C-2564-M 

(N.D. Ala. Oct. 20, 2003) (Clemon, J.); Crittenden v. Wyeth, No. 03-T-920-N (M.D. Ala. 

Nov. 21, 2003) (Thompson, J.); Terrell v. Wyeth, No. CV-03-BE-2876-S (N.D. Ala. Dec. 

12, 2003) (Bowdre, J.) (“Although the plaintiffs’ claims against defendant Parker appear 

to raise novel questions of Alabama state law, this court will not speculate that the 

plaintiffs have no possibility of establishing a cause of action against this non-diverse 

defendant. Little, if any, discovery has been done to-date in this case; thus, it would be 

premature for this court to make rash decisions regarding the nature and the timing of the 

injury sustained by the plaintiffs, or the employment history of defendant Parker. Nor 

can the court conclusively determine that plaintiffs would not be successful in urging its 

various theories under Alabama law.”); Ballard v. Wyeth, No. 03-T-1255-N (N.D. Ala. 

Jan. 23, 2004) (Thompson, J.); Brunson v. Wyeth, No. 03-T-1167-S (N.D. Ala. Jan. 23, 

2004) (Thompson, J.); Blair v. Wyeth, No. 03-T-1251-S (N.D. Ala. Jan. 23, 2004) 

(Thompson, J.); Storey v. Wyeth, No. CV-04-BE-27-E (N.D. Ala. Jan. 30, 2004) 

(Bowdre, J.); Cash v. Wyeth, No. 03-RRA-3378-E (N.D. Ala. Feb. 3, 2004) (Armstrong, 

Mag. J.); Marshal v. Wyeth, No. CV-04-TMP-179-S (N.D. Ala. Feb. 18, 2004) (Putnam, 

Mag. J.); McGowan v. Wyeth, No. CV-04-TMP-298-S (N.D. Ala. Feb. 24, 2004) 

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(Putnam, Mag. J.); Johnson v. Wyeth, No. CV-04-TMP-224-S (N.D. Ala. Feb. 23, 2004) 

(Putnam, Mag. J.); Bradford v. Wyeth, No. 03-P-3157-5 (N.D. Ala. Feb. 27, 2004) 

(Proctor, J.); Smith v. Wyeth, No. 04-P-226-M (N.D. Ala. Feb. 27, 2004) (Proctor, J.); 

Boudreaux v. Wyeth, No. CV-04-P-227-M (N.D. Ala. Feb. 27, 2004) (Proctor, J.); 

Bridges v. Wyeth, No. 04-AR-0297-J (N.D. Ala. Mar. 2, 2004) (Acker, J.); Hough v. 

Wyeth, No. 04-H-393-S (N.D. Ala. Mar. 5, 2004) (Hancock, J.); Brogden v. Wyeth, No. 

04-T-068-S (M.D. Ala. Mar. 8, 2004) (Thompson, J.); Reeder v. Wyeth, No. 04-T-066-N 

(M.D. Ala. Mar. 8, 2004) (Thompson, J.); Eaton v. Wyeth, No. CV-04-P-380-M (N.D. 

Ala. Mar. 9, 2004) (Proctor, J.); Allen v. Wyeth, No. 04-CV-0238-T (M.D. Ala. Apr. 9, 

2004) (Thompson, J.); Chestnut v. Wyeth, No. 04-CV-0295-T (M.D. Ala. May 3, 2004) 

(Thompson, J.); King v. Wyeth, No. 04-CV-0409-T (M.D. Ala. May 24, 2004) 

(Thompson, J.); Culpepper v. Wyeth, No. 04-CV-0411-T (M.D. Ala. May 24, 2004) 

(Thompson, J.); Braden v. Wyeth, No. 04-CV-0384-T (M.D. Ala. May 24, 2004) 

(Thompson, J.); Cross v. Wyeth, No. 03-0882-BH-M (S.D. Ala. Mar. 29, 2004) (Hand, 

J.); Bennett v. Wyeth, No. 04-CV-0416-T (M.D. Ala. June 2, 2004) (Thompson, J.).6

 Federal District Courts in Alabama have rightly found that plaintiffs who allege 

claims of fraudulent misrepresentation and suppression against sales representatives of 

drug companies have alleged valid claims under Alabama law. Accordingly, the 

Individual Resident Defendant was not fraudulently joined in this case. 

c. The Plaintiff’s complaint was pleaded with sufficient 

particularity to support claims against the Individual 

Resident Defendants. 

 

6

 See Exhibit “E,” attached and filed with this brief. 

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 Defendant Lilly also asserts that Plaintiff failed to plead her claim of fraudulent 

misrepresentation with particularity. However, in her Complaint, Plaintiff sufficiently 

alleges that the Individual Resident Defendant fraudulently misrepresented and/or 

suppressed material information regarding the safety and efficacy of Zyprexa® and its 

harmful side effects in order to induce physicians to prescribe these drugs and to induce 

consumers, including Ms. Weathers, to purchase Zyprexa®. Plaintiff further alleges that 

the Individual Resident Defendant misrepresented and/or suppressed the fact that 

Zyprexa® was not safe and that the Defendants were under a duty to communicate this 

information to Plaintiff, that the Individual Resident Defendant marketed, sold, supplied 

and/or otherwise distributed Zyprexa®, that Zyprexa® was defective and unreasonably 

dangerous as designed, was unreasonably dangerous due to inadequate testing, and was 

defective as marketed due to inadequate warnings or instructions, that the Defendants 

failed to warn Ms. Weathers of the dangers of Zyprexa® therapy, that the Defendants 

failed to provide post-marketing warnings to Ms. Weathers after she began to take the 

drug, and that as a direct and proximate result of the Defendants placing Zyprexa® on the 

market and Ms. Weathers’ ingestion of Zyprexa®, Ms. Weathers suffered injuries 

including the onset of diabetes mellitus. These allegations are sufficient to support the 

claims asserted by Plaintiff in her Complaint; likewise, the claims are pleaded with 

sufficient particularity to support Plaintiff’s fraud claims against the Defendants, 

including the Individual Resident Defendant. 

 To the extent the Court finds Plaintiff’s Complaint deficient to satisfy the 

heightened pleading requirements, such a finding should not lead this Court to an 

automatic finding of fraudulent joinder. See Bloodsworth, 2005 WL at *11 (citing

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Duffin v. Honeywell Intern., Inc., 312 F. Supp. 2nd 869, 870 (N.D. Miss. 2004) (“a 

plaintiff should ordinarily be given an opportunity to amend their complaint to allege 

fraud with greater particularity, before such claims are dismissed with prejudice upon a 

finding of fraudulent joinder”) (citing Hart v. Bayer Corp., 199 F.3d 239, 248 n. 6 (5th

Cir. 2000)). 

B. Legg v. Wyeth is not controlling or dispositive of the issues in this matter.

 Defendant Lilly refers to the recent decision of the United States Court of Appeals 

for the Eleventh Circuit, Legg v. Wyeth, 428 F.3d 1317 (11th Cir. 2005), and argues that 

the decision supports a denial of the Plaintiff’s motion to remand. The Defendant’s 

argument in this respect must fail. 

1. Legg v. Wyeth is not controlling on the issue of subject matter 

jurisdiction and any language in Legg relative to the remand proceedings is dictum. 

In Legg, the issue before the appellate court was whether the district court abused 

its discretion by awarding attorney’s fees and costs to the plaintiffs as a result of the 

removal petition filed by the defendant, a drug company manufacturer, Wyeth. Contrary 

to the position urged by Defendant Lilly in the present cause, the issue was not whether 

the district court abused its discretion by remanding the case, after finding that the 

defendant failed to meet its burden of establishing fraudulent joinder. Indeed, the 

Eleventh Circuit noted that “28 U.S.C. § 1447 (d) bars our review of a remand such as 

this one based upon the lack of subject matter jurisdiction,” but “the statute does not 

‘exclude the district court’s assessment of costs from appellate review.’” Legg, 428 F.3d 

at 1319-20 (quoting Fowler v. Safeco Ins. Co., 915 F.2d 616, 617 (11th Cir. 1990)). The 

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Court in Legg did not state that the trial court’s remand order was in error, nor did the 

Court rule that the standard of review in such cases should be changed. 

Since the language of Legg relied upon by Defendant Lilly is not essential to the 

issue in that case, it is merely dictum and should not be given stare decisis effect by this 

Court. Nevertheless, assuming arguendo that this Court should defer to Legg on this 

issue, the Legg court’s holding is in contravention of well-settled Alabama law, which 

provides that misrepresentations of material fact, even if made by mistake or innocently, 

constitute legal fraud. See Ala. Code § 6-5-101 (1975). See also Thomas v. Halstead, 

605 So.2d 1181 (Ala. 1993). As discussed above, Alabama law is well-established that 

individual employees can be held liable for torts in which they participate. 

 The Court in Legg cites Fisher v. Comer Plantation, 772 So. 2d 455, 463 (Ala. 

2000) for the proposition that “mere conduits” cannot be held liable for participating in a 

tort unless bad faith can be shown. Fisher, however, dealt with independent contractors. 

The sales representatives here were not “mere conduits” of information, but were instead 

an integral part of the false and fraudulent marketing and selling of Zyprexa®. 

Since the Eleventh Circuit did not have within its jurisdiction the ability to 

address the merits of the remand order in Legg, any discussion of the merits of the district 

court’s order remanding the case back to state court is dictum and has no legal, 

precedential value. As a result, this Court should disregard that aspect of the Legg

decision. 

2. Even if the Eleventh Circuit’s substantive discussion of removal 

and remand proceedings in Legg v. Wyeth should be considered, the “evidence” 

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before the Court in this cause is more than sufficient to establish that there is a 

“possibility” of recovery against the Individual Resident Defendant.

In reaching its decision that the district court erred by awarding attorney’s fees 

and costs to the plaintiff in Legg, the Eleventh Circuit considered the fact before it that 

the defendant submitted uncontested affidavits of the sales representatives to establish 

that they were not active participants in the alleged wrongdoing as set forth in the 

complaint. The defendant, Wyeth, in arguing that it had wrongfully been ordered to pay 

attorney’s fees, argued that the sales representatives were named in the plaintiff’s 

complaint as a means of fraudulent joinder to defeat federal diversity jurisdiction. Wyeth 

submitted affidavits of the three named sales representatives to establish that they did not 

have prior knowledge of the subject drug’s propensity to increase the risk of valvular 

heart disease. The plaintiffs responded to this contention by pointing to sales materials 

and other documents to support its claims. The appellate court observed, however, that 

the sales training materials did “not contain any warning to the sales representatives that 

Redux may cause valvular heart disease.” Legg at 1322. As the court noted, the absence 

of such warnings reinforced the claims of the sales representatives made by them in their 

affidavits. 

The Eleventh Circuit, in determining that Wyeth’s removal efforts were 

“reasonable,” a basis to determine whether the attorney’s fees were wrongfully awarded, 

appeared to be critical of the lower court’s remand order, because there did not appear to 

be any refutation of the affidavits of the sales representatives, other than the allegations in 

the complaint. Such is not the case here. 

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In the Declarations of the Individual Resident Defendant, submitted by Defendant 

Lilly in this case, the Defendants contend in conclusory and self-serving fashion that they 

were not active participants in the wrongdoing alleged by the Plaintiff in her complaint. 

However, it is not the Individual Resident Defendant’s contentions that bear the most 

attention; rather, it is the absence of a critical contention that they do not make which 

should be the focus of this Court’s attention. Nowhere in the Declarations is it ever 

asserted that Mrs. McCain lacked specific knowledge about the dangerous propensities of 

Zyprexa, particularly with respect to the increased risk of the onset of diabetes mellitus,

metabolic syndrome, and ketoacidosis prior to the time the drug was prescribed by 

Plaintiff’s physician. Such a baseless allegation by the Individual Resident Defendant 

would likely amount to perjury when the facts and evidence of this case are presented to a 

jury. 

V. CONCLUSION

 In all of its efforts, Defendant Lilly has failed to cite any directly applicable or 

controlling authority and consequently it has failed in its burden of proving that there is 

no possibility that Plaintiff can establish a cause of action against the Resident Defendant 

Yolanda McCain. For the reasons outlined above, this Court lacks subject matter 

jurisdiction. Therefore, Plaintiff respectfully urges the Court to remand this action in its 

entirety to the Circuit Court of Elmore County, Alabama. 

 Respectfully submitted this 31st day of July, 2006. 

 

 /s/ FRANK WOODSON 

 E. FRANK WOODSON (WOODS0479) 

 Attorney for Plaintiff 

23

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OF COUNSEL: 

BEASLEY, ALLEN, CROW, METHVIN, 

 PORTIS & MILES, P.C. 

Post Office Box 4160 

Montgomery, Alabama 36103-4160 

Phone: (334) 269-2343 

Fax: (334) 223-1236 

24

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CERTIFICATE OF SERVICE

 I hereby certify that I have served a copy of the foregoing document upon the 

parties as listed below by placing a copy of same in the United States Mail, first class, 

postage prepaid on this the 31st day of July, 2006. 

James C. Barton 

Alan D. Mathis 

JOHNSTON BARTON PROCTOR & POWELL LLP 

2900 AmSouth/Harbert Plaza 

1901 Sixth Avenue North 

Birmingham, Alabama 35203

 /s/ FRANK WOODSON 

 OF COUNSEL

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