IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

BETTY WEATHERS, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) Case No.: 2:06-CV-0666-WHA 

 ) 

ELI LILLY AND COMPANY et al., ) 

 ) 

 Defendants. ) 

DEFENDANT ELI LILLY AND COMPANY’S 

RESPONSE IN OPPOSITION TO PLAINTIFF’S 

MOTION TO REMAND

I. INTRODUCTION

 Plaintiff’s counsel has filed virtually identical motions to remand in this 

case and eight others that are currently pending in this district against Eli Lilly and 

Company (“Lilly”) and Yolanda McCain (“Ms. McCain”). See Frizzle v. Lilly, Yolanda 

McCain, et al., No.: 2:06-cv-467-MHT (M.D. Ala.); Gantt v. Lilly, Yolanda McCain, et 

al., No.: 2:06-cv-468-WHA (M.D. Ala.); Glover v. Lilly, Yolanda McCain, et al., No.: 

2:06-cv-466-WHA (M.D. Ala.); Grant v. Lilly, Yolanda McCain, et al., No.: 2:06-cv464-MHT (M.D. Ala.); Mallard v. Lilly, Yolanda McCain, et al., No.: 2:06-cv-481-WHA 

(M.D. Ala.); Person v. Lilly, Yolanda McCain, et al., No.: 2:06-cv-465-WHA (M.D. 

Ala.); Segrest v. Lilly, Yolanda McCain, et al., No.: 2:06-cv-542-WHA (M.D. Ala.); 

Wakefield v. Lilly, Yolanda McCain, et al., No.: 3:06-cv-460-WHA (M.D. Ala.). On July 

27, 2006, this Court granted Lilly’s motions to stay in the Grant and Frizzle cases and 

thereby deferred consideration of the plaintiffs’ remand motions pending transfer of the 

cases to the Zyprexa® MDL. See Stay Orders, attached as Exhibits “A” & “B.” 

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Last year, this Court deferred consideration of similar remand motions in three 

cases nearly identical to this present one, which were also filed by this Plaintiff’s counsel. 

See Muhammad v. Lilly, Yolanda (Brown) McCain, et al., No.: 2:05-cv-1046-MHT (M.D. 

Ala. Nov. 22, 2005) (Thompson, J.) (staying case pending MDL transfer); McCrayMartin v. Lilly, Yolanda (Brown) McCain, et al., No.: 2:05-cv-1048-MHT (M.D. Ala. 

Nov. 22, 2005) (Thompson, J.) (staying case pending MDL transfer); Crimes v. Lilly, 

Yolanda (Brown) McCain, et al., No.: 2:05-cv-1047-ID (M.D. Ala.) (DeMent, J.) 

(deferring consideration of pending remand motion, allowing transfer to MDL). Those 

three cases are now pending in the MDL. The plaintiffs’ allegations that Ms. McCain 

was not fraudulently joined in those cases will be argued in the MDL. 

It is only logical to allow the MDL court to decide the remand motion in 

this case as well.1

 Indeed, Plaintiff’s arguments should be heard there, along with many 

other cases in which similar jurisdictional issues will be decided. See, e.g., Wright v. 

Lilly, et al., No.: 2:06-cv-193-KD-C (S.D. Ala. May 3, 2006) (DuBose, J.) (staying case 

removed on basis of fraudulent joinder of sales representatives; now pending in MDL); 

Anderson v. Lilly, et al., No.: 7:06-cv-636-LSC (N.D. Ala. Apr. 27, 2006) (Coogler, J.) 

(same); Brownlee v. Lilly, et al., 7:06-cv-634-JEO (N.D. Ala. Apr. 5, 2006) (Ott, Mag.) 

(staying case removed on basis of fraudulent joinder of sales representatives; transfer 

decision pending); Jackson v. Lilly, et al., No.: 5:06-cv-576-CLS (N.D. Ala. Apr. 5, 

 

1

 In support of Plaintiff’s contention that a stay would be inappropriate here, she has cited to five 

remand orders entered in Southern District of Alabama in cases involving the joinder of local physicians. 

See Bailey v. Lilly, et al., No.: 1:06-cv-262-WS (S.D. Ala. Jun. 5, 2006) (Steele, J.); Beck v. Lilly, et al., 

No.: 1:06-cv-263-WS (S.D. Ala. Jun. 5, 2006) (Steele, J.); Betts v. Lilly, et al., No.:1:06-cvv-259-WS (S.D. 

Ala. Jun. 5, 2006) (Steele, J.); Etheridge v. Lilly, et al., No.: 2:06-cv-260-WS (S.D. Ala. Jun. 5, 2006) 

(Steele, J.); Vincent v. Lilly, et al., No.: 2:06-cv-264-WS (S.D. Ala. Jun. 5, 2006) (Steele, J.). The issues 

involved in those cases are very different from those at issue in the present case – a case involving the 

fraudulent joinder of a local sales representative, not a local physician. The law on the fraudulent joinder 

of sales representatives is clear. See generally Legg v. Wyeth, 428 F.3d 1317 (11th Cir. 2005). The 

Southern District cases cited by Plaintiff are inapposite. 

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2006) (Smith, J.) (staying case removed on basis of fraudulent joinder of sales 

representatives; now pending in MDL); Hubbard v. Lilly, et al., No.: 3:06-cv-535-CLS 

(N.D. Ala. Apr. 5, 2006) (Smith, J.) (same); Wesley v. Lilly, et al., No.: 2:06-cv-569-SLB 

(N.D. Ala. Mar. 27, 2006) (Blackburn, J.) (same); McTier v. Lilly, et al., No.: 2:05-cv607-MHT (M.D. Ala. Aug. 9, 2005) (Thompson, J.) (same). Plaintiff requests this Court 

to engage in a completely duplicative exercise, at the risk of inconsistent rulings. For 

these reasons, and those stated in Lilly’s Memorandum in Support of Its Motion to Stay 

(Doc. # 5) and Lilly’s Reply to Plaintiff’s Opposition to Motion to Stay (filed 

contemporaneously herewith), the Court should stay this case pending its transfer to the 

MDL. 

Moreover, whether Plaintiff’s Motion to Remand is decided by the MDL 

court or by this Court, it should be denied. In this mass tort action where Plaintiff and 

Lilly are citizens of different states, Plaintiff has sought to avoid federal jurisdiction by 

joining Ms. McCain, a local sales representative, without any evidence to support the 

claims against her. Plaintiff’s Complaint makes no specific allegations against Ms. 

McCain; it does not identify a prescribing physician; it does not identify a single 

statement (false or otherwise) uttered by Ms. McCain. Moreover, Plaintiff has not 

submitted any evidence to rebut the sworn statements in Ms. McCain’s Declaration, 

attached as Exhibit “C.” Indeed, Plaintiff’s Motion to Remand is little more than a 

restatement of the general, conclusory allegations of the Complaint. It is well-settled in 

the Eleventh Circuit that “[w]hen 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.” Legg v. Wyeth, 428 F.3d 1317, 

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1323 (11th Cir. 2005).2 The undisputed evidence before the Court establishes that there 

is no possibility Plaintiff can prove any of her claims against Ms. McCain. Plaintiff’s 

Motion to Remand should be denied. 

II. THERE IS NO LEGAL BASIS TO PREDICT THAT PLAINTIFF CAN 

PROVE ANY OF HER CLAIMS AGAINST MS. MCCAIN UNDER 

ALABAMA LAW.

 Ms. McCain has been fraudulently joined because “there is no possibility 

that the plaintiff can prove a cause of action against the resident (non-diverse) 

defendant.” Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998). 

The Eleventh Circuit has explained that “possible must mean ‘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 (citing Braden v. Wyeth, No. CV-04-PT-235-E, 2005 U.S. Dist. LEXIS 

25243 (N.D. Ala. June 30, 2005)). This supports the court in In re Rezulin Prods. Liab. 

Litig. (“Rezulin I”), which noted that “[t]he statement . . . that a defendant must establish 

that there is ‘no possibility’ that the plaintiff might prevail against a non-diverse 

defendant . . . cannot be taken literally[,] [because] there always would be a ‘possibility,’ 

however remote, that the court or legislature might change its mind so as to permit the 

plaintiff to prevail.” Rezulin I, 133 F. Supp. 2d 272, 280 n.4 (S.D.N.Y. 2001). 

 

2

 Plaintiff attempts to discount Legg by pointing out that remand decisions cannot be appealed and, 

therefore, the Eleventh Circuit was technically not reviewing the district court’s remand decision. 

Whatever Plaintiff says about Legg, it does not change the Eleventh Circuit’s unambiguous determination 

that the record in that case supported a finding of fraudulent joinder. Legg, 428 F.3d at 1325. Nor does it 

weaken the cautionary language of the opinion and the court’s clear intent to provide guidance to district 

courts in their analysis of removal / remand issues. 

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A. There is no possibility Plaintiff can prove a cause of action against Ms. 

McCain under the AEMLD. 

Plaintiff asserts that she has stated a valid claim against McCain under the 

Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”). Plaintiff makes this 

argument despite the fact that there is no case law, federal or state, in which a sales 

representative defendant has been held liable under the AEMLD. 

 1. Ms. McCain is not a “seller” or “supplier” under the AEMLD. 

 To establish liability under the AEMLD, a plaintiff must prove the 

defendant sold or supplied the product in question. See Casrell v. Altec Indus., Inc., 335 

So. 2d 128, 132 (Ala. 1976) (holding that the AEMLD establishes a cause of action 

against “a manufacturer, or supplier, or seller . . .”). Ms. McCain’s Declaration 

establishes that she was not a “seller” or “supplier” of the product in question. Rather, 

her job was limited to “[providing] approved information to physicians about certain 

prescription medicines sold by Lilly.” See Exhibit “C.” This undisputed declaration 

conclusively establishes that Lilly, not Ms. McCain, is the seller. 

 The AEMLD should not be interpreted to impose liability on the lower 

level employees of a seller or supplier, because “neither the applicable case law nor the 

policy objectives articulated by Alabama and other state courts can support the extension 

of the AEMLD to encompass [employees of the seller or supplier].” Bowman v. Coleman 

Co., Inc., No.: 96-0448-P-C, Slip. Op. at 8 (S.D. Ala. Sept. 3, 1996) (holding that retail 

store manager is not a “seller”); accord Rezulin I, 133 F. Supp. 2d at 287 (applying 

Alabama law) (finding that pharmaceutical representatives are not sellers or suppliers of 

the prescription drug they represent). 

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 The Alabama Supreme Court has stated that the AEMLD is “founded on 

broader moral notions of consumer protection and on economic and social grounds, 

placing the burden to compensate for loss incurred by defective products on the one best 

able to prevent the distribution of those products.” Atkins v. American Motor Corp., 335 

So. 2d 134, 139 (Ala. 1976); accord Bowman, No.: 96-0448-P-C, Slip. Op. at 6; Rezulin 

I, 133 F. Supp. 2d at 287. Ms. McCain is not the type of defendant that the Alabama 

Supreme Court intended to hold liable under the AEMLD doctrine because she is 

certainly not the one “best able to prevent the distribution of those products.” Id. Rezulin 

I is on point here. The Rezulin I court denied a motion to remand involving claims 

similar to those in the present case: 

[T]he AEMLD imposes liability only on manufacturers, sellers and 

suppliers. The sales representative joined in the Alabama case 

neither manufactured, sold, nor supplied Rezulin. Rather, he was 

an agent of the manufacturer and seller. As a corporate employee, 

he was not “the one best able” to prevent sales of defective drugs. 

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. 

Rezulin I, 133 F. Supp. 2d at 287. (citing Atkins, 335 So. 2d at 139; Turner v. Azalea Box 

Co., 508 So. 2d 253, 254 (Ala. 1987); King v. S.R. Smith, Inc., 578 So. 2d 1285, 1287 

(Ala. 1991)); see also In re Baycol Prod. Litig., MDL 1431, slip. op. at 3-6 (D. Minn. 

Mar. 26, 2004) (denying motion to remand and using the same reasoning as Rezulin I for 

plaintiff’s AEMLD claim against sales representative defendants); Devise v. Kenmore, 

No.: CV-03-J-943-S, 2003 U.S. Dist. LEXIS 26789, at *8-9 (N.D. Ala. May 12, 2003) 

(Johnson, J.) (finding no AEMLD claim against defendant where he was “clearly not a 

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manufacturer, supplier, or seller . . . . At most, he is a sales representative for the seller . . 

. .”) 

This Court found the reasoning of Rezulin I persuasive in Bloodsworth v. 

Smith & Nephew, No.: 2:05-cv-622-D, 2005 U.S. Dist. LEXIS 38756, at *17-21 (M.D. 

Ala. Dec. 19, 2005) (DeMent, J.). In Bloodsworth, much like the present case, the 

defendants removed the case to federal court arguing that a local sales representative had 

been fraudulently joined. The plaintiff had asserted a claim against the sales 

representative under the AEMLD. Citing Rezulin I, the defendants argued that the sales 

representative was not a “seller” of the subject product, and therefore there was no 

possibility of an AEMLD against him. This Court agreed. The Court found “the 

reasoning in Rezulin and Baycol persuasive and applicable in this case.” Id. at *20. The 

Court then stated that there was no evidence that the local defendant “in his capacity as a 

sales representative, had any significant control over the distribution of [the 

manufacturer’s] products or could have prevented, in any substantial way, [the 

manufacturer’s] dispersion of its products.” Id. 

The same reasoning applies here. Ms. McCain is not a seller or supplier of 

Zyprexa and, as established in her undisputed Declaration, she could not have controlled 

or prevented, in any significant way, the distribution of Lilly’s products. Thus, she 

cannot possibly be held liable under the AEMLD. 

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2. Plaintiff’s reliance on Clay v. Brown & Williamson Tobacco 

Corp. is misplaced.

3

Plaintiff relies heavily on Clay v. Brown & Williamson Tobacco Corp., 

77 F. Supp. 2d 1220 (M.D. Ala. 1999), to support her contention that she has an 

arguable claim against Ms. McCain under the AEMLD. As an initial matter, there is no 

indication that the individual defendants in Clay submitted any sworn statements to 

support the defendants’ fraudulent joinder argument. Thus, the plaintiffs did not have 

the same obligation as Plaintiff here to come forward with evidence to support the 

allegations of their complaint. 

Also, the court in Clay noted the high position – Key Account Manager – 

held by the individual defendant. Id. at 1224. That position is easily distinguishable 

from the sales representative position held by Ms. McCain in this present case. Ms. 

McCain’s job duties as a sales representatives “are to provide approved information to 

physicians about certain prescription medicines sold by Lilly.” See Exhibit “C.” The 

high position held by the individual defendant in Clay could have given him control 

over the distribution of the manufacturer’s products that Ms. McCain simply did not 

have in her job as a sales representative. 

That the individual defendant’s position in Clay is distinguishable from 

that of a sales representative is clear from this Court’s decision in the Bloodsworth case. 

 

3

 Plaintiff’s reliance on this Court’s remand orders in Struthers v. Merck & Co., Inc., et al., No.: 

2:06-cv-127-MHT (M.D. Ala. Mar. 13, 2006), and Leverett v. Merck & Co., Inc., et al., No.: 2:06-cv-128-

MHT (M.D. Ala. Mar. 15, 2006), is similarly misplaced. Plaintiff claims that these cases are 

“indistinguishable” from the present case, yet provides no facts or discussion of the cases. More likely, 

Struthers and Leverett are distinguishable. Indeed, Judge Thompson, the author of those opinions, denied 

a motion to reconsider his stay orders in cases identical to the present one – Muhammad v. Lilly and 

McCray-Martin v. Lilly – despite Plaintiff’s counsel’s citation to the Struthers and Leverett cases, among 

others. 

 

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Judge DeMent, who authored both the Clay and Bloodsworth opinions, determined in 

Bloodsworth that a sales representative in very much the same position as Ms. McCain 

could not be considered a “seller” under the AEMLD because he could not have 

controlled or prevented the distribution of the subject product. Bloodsworth, 2005 U.S. 

Dist. LEXIS 38756, at *20-21. 

3. Plaintiff has not presented any evidence that Ms. McCain had 

knowledge of the alleged risks of Zyprexa. 

 In Bloodsworth, the sales representative defendant had submitted an 

affidavit stating “that he merely received orders and delivered [the manufacturer’s] 

products . . . to physicians, and had no knowledge of any design or manufacturing defect 

in [the manufacturer’s] products . . . .” Id. at *20. Judge DeMent noted that “the 

Supreme Court of Alabama has rejected the theory that a retailer who lacks knowledge of 

a product’s dangerous defect can be liable under the AEMLD simply for ‘the mere selling 

of a defective product.’” Id. at *20 (citing Atkins v. American Motor Corp., 335 So. 2d 

134, 139 (Ala. 1976). Accordingly, by analogy, the Court cited the sales representative’s 

lack of knowledge of a product defect in holding that there was “no ‘reasonable 

possibility’ for concluding that . . . an Alabama court would find [the sales representative 

defendant] liable under the AEMLD. Id. at *20-21. 

In the present case, Ms. McCain has attested that her responsibility as a 

sales representative for Lilly was simply to pass along information about products from 

Lilly to physicians, that her knowledge of Zyprexa was derived exclusively from training 

materials and education provided to her by Lilly, and that she was not aware of any risks 

associated with Zyprexa, other than those provided in the FDA-approved Package Insert 

for Zyprexa. See Exhibit “C.” Based on this Court’s analysis in Bloodsworth, Plaintiff’s 

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failure to rebut these statements and establish that Ms. McCain knew or should have 

known of the alleged risks of Zyprexa is fatal to Plaintiff’s AEMLD claim against her. 

B. There is no possibility Plaintiff can prove a cause of action against Ms. 

McCain for fraud. 

1. Plaintiff has presented no evidence to rebut Ms. McCain’s 

declarations, which establish that she was a mere conduit of 

information from Lilly to physicians. 

Alabama law is clear. Individuals that act as mere conduits of information 

are not proper defendants to defeat diversity jurisdiction. See Legg, 428 F.3d at 1324 

(“‘[T]hose who are only conduits through which faulty information is supplied by one 

person to a third person cannot be held liable for fraud unless they acted in bad faith.’”) 

(quoting Fisher v. Comer Plantation, Inc., 772 So. 2d 455, 463 (Ala. 2000)). Courts do 

not permit plaintiffs to turn the law of agency on its head to attribute the alleged fraud of 

the employer to its employees. See id. (“If [manufacturer defendant] knew or should 

have known of [the product’s] harmful effects and did not tell [sales representative 

defendant], that might be a basis for a claim against [manufacturer defendant], but it 

would not support the conclusion that [sales representative defendant] herself ‘personally 

participated in the tort’ or breach a duty to the Plaintiffs.”). This, however, is exactly 

what Plaintiff has argued. 

Plaintiff has attempted to distinguish Legg by noting that Fisher – the case 

cited by the Legg court for the proposition that innocently passing on information from 

one person to a third person cannot constitute fraud – involved independent contractors 

rather than sales representatives. (See Plaintiff’s Brief in Support of Motion to Remand 

at 21.) The conduit through which the information is passed, however, is not the 

important factor. The important factor is whether the “conduit” personally participated in 

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the fraud or otherwise acted in bad faith. See Fisher, 772 So. 2d at 464 (“We held that 

the defendants were not liable for fraud ‘for merely conveying the statements of [the 

seller] to the agent of the [plaintiffs]’ without evidence of bad faith.”) (quoting Speigner 

v. Howard, 502 So. 2d 367, 371 (Ala. 1987)). 

Ms. McCain’s Declaration establishes that her job as a sales representative 

was simply to pass along information from Lilly to the physicians with whom she met, 

that she was unaware of the alleged risks of Zyprexa (other than those listed in the 

package insert), and that she never misrepresented, concealed, or withheld information in 

her possession regarding the safety characteristics of Zyprexa. See Exhibit “C.” Plaintiff 

has not presented any evidence to rebut Ms. McCain’s Declaration. Indeed, without 

presenting any evidence that McCain knew or should have known about the alleged 

dangers of Zyprexa, Plaintiff simply restates the conclusory allegations of her Complaint. 

The conclusory nature of Plaintiff’s argument is wholly inadequate to refute the sworn 

testimony of McCain. Absent evidence that McCain either knew or should have known 

of the alleged risks of Zyprexa, there is no possibility that Plaintiff can establish a claim 

against her. Legg, 428 F.3d at 1324-25 (“Quite simply, there is no reasonable basis to 

predict that an Alabama court would find [a sales representative defendant], as an 

individual employee, personally liable for any wrongful action by [a manufacturer 

defendant] in the absence of evidence that [the sales representative defendant] either 

knew or should have known of [the product’s] allegedly dangerous effects.”).4

 

 

4

 Even if plaintiff could present evidence that McCain had knowledge of the alleged dangers of 

Zyprexa, plaintiff cannot establish another essential element of a fraud or suppression claim. Plaintiff 

cannot establish that a sales representative like McCain had a duty to disclose information about a drug to 

plaintiff or her physician. Such a duty would not arise because of the learned intermediary doctrine. The 

learned intermediary doctrine imposes a duty on the manufacturer of the drug, not the sales representative, 

to warn the physicians. See Bloodsworth v. Smith & Nephew, Inc., No.: 2:05-cv-622-D, 2005 U.S. Dist. 

LEXIS 38756, at *22-23, 39 (M.D. Ala. Dec. 19, 2005) (“Pursuant to the learned intermediary doctrine, 

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2. Plaintiff has failed to comply with the pleading requirements of 

Rule 9(b). 

Plaintiff has made no effort to comply with the requirements of Rule 9 (b), 

which, under both the Federal Rules and the Alabama Rules, requires that the 

circumstances of the alleged fraud be pleaded with particularity. Under Rule 9(b) of the 

Alabama Rules of Civil Procedure, it is well established that the pleading must “show the 

time, place and the contents or substance of the false representation, the facts 

misrepresented, and an identification of what has been obtained.” Devise v. Kenmore, 

No.: CV-03-J-943-S, 2003 U.S. Dist. LEXIS 26789, at *8-9 (N.D. Ala. May 12, 2003) 

(Johnson, J.) (citing Smith v. National Sec. Inc. Co., 860 So. 2d 343, 346 (Ala. 2003)). 

 Here, it is telling what Plaintiff has omitted from her purported fraud 

claims: 

(1) failed to identify any prescribing physician(s); 

(2) failed to allege the time or place where any alleged statement(s) took 

place; 

(3) failed to allege the content or substance of any alleged statement attributed 

to Ms. McCain; 

(4) failed to identify even a single statement attributed to Ms. McCain. 

The court in Rezulin I found more detailed allegations than those presented here to be 

insufficient. See Rezulin I, 133 F. Supp. 2d at 283 (finding plaintiffs’ allegation that “on 

or after March, 1997, in the State of Mississippi, and particularly in LeFlore County, 

Mississippi” the individually named sales representatives “represented to [plaintiffs] that 

the Rezulin drug was not defective or unreasonably dangerous to its users” does not 

 which has been adopted by the Supreme Court of Alabama, any duty to warn is owed by [the manufacturer] 

. . . the duty is not owed by [the sales representative.]”); see also Catlett v. Wyeth, Inc., 379 F. Supp. 2d 

1374, 1381 (M.D. Ga. 2004); Johnson v. Parke-Davis, 114 F. Supp. 2d 522, 524-25 (S.D. Miss. 2000); In 

re Diet Drugs, 220 F. Supp. 2d 414, 425 (E.D. Pa. 2002). 

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 13

satisfy Rule 9). The general and conclusory statements in Plaintiff's Complaint are not 

sufficient to state a claim for fraud. See, e.g., Baycol, MDL 1431, slip. op. at 7 (finding 

fraud allegations to be deficient where “[n]o allegation specifies the specific 

misrepresentation the individual defendants made, to whom and under what 

circumstances”). 

 The particularity standard of Rule 9 also “requires plaintiff in pleading 

fraud to distinguish among defendants and specify their respective role in the alleged 

fraud.” See McAllister Towing & Transp. Co. v. Thorn’s Diesel Serv., Inc., 131 F. Supp. 

2d 1296, 1302 (M.D. Ala. 2001). Plaintiff here lumps all defendants together and asserts 

allegations against “the Defendants,” collectively. Compl. at ¶¶ 1-72. These generalized 

allegations fall well short of the pleading requirements of Rule 9(b). 

III. CONCLUSION 

 For the foregoing reasons and for the reasons stated in Lilly’s Notice of 

Removal, this Court should deny Plaintiff's Motion to Remand, or, in the alternative, 

defer ruling pending the transfer of this case to the MDL proceeding that has been 

established in the Eastern District of New York. 

s/ James C. Barton, Jr. 

 James C. Barton, Jr. (BAR014) 

Bar Number: ASB-0237-B51J 

Email: jbartonjr@jbpp.com 

s/ Alan D. Mathis 

 Alan D. Mathis (MAT052) 

Bar Number: ASB-8922-A59M 

Email: adm@jbpp.com 

 Attorneys for defendant 

Eli Lilly and Company 

Case 2:06-cv-00666-WHA-TFM Document 14 Filed 08/10/2006 Page 13 of 14
 14

JOHNSTON BARTON PROCTOR & POWELL LLP

2900 AmSouth/Harbert Plaza 

1901 Sixth Avenue North 

Birmingham, AL 35203 

(205) 458-9400 

(205) 458-9500 (fax) 

OF COUNSEL 

CERTIFICATE OF SERVICE

 I hereby certify that I electronically filed the above and foregoing with the Clerk 

of the Court on August 10, 2006, using the CM/ECF system, which will send notification 

of such filing to the following: 

 E. Frank Woodson, Esq. 

 Beasley, Allen, Crow, Methvin, 

 Portis & Miles, P.C. 

 P.O. Box 4160 

 Montgomery, Alabama 36104 

 

 s/ Alan D. Mathis 

 Of Counsel 

W0568596.DOC

Case 2:06-cv-00666-WHA-TFM Document 14 Filed 08/10/2006 Page 14 of 14
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

MATTIE GRANT, )

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 2:06cv464-MHT

) (WO) 

ELI LILLY AND COMPANY, and )

YOLANDA McCAIN, )

)

Defendants. )

ORDER

It is ORDERED that the motion for stay (doc. no. 5) is

granted and this cause is stayed pending MDL transfer.

See, e.g., McCray-Martin v. Eli Lilly and Company, civil

action no. 2:05cv1048-T (M.D. Ala. Nov. 22, 2005) (order

staying case, including remand motion, pending MDL

transfer); Muhammad v. Eli Lilly and Company, civil action

no. 2:05cv1046-T (M.D. Ala. Nov. 22, 2005) (same).

DONE, this the 27th day of July, 2006.

 /s/ Myron H. Thompson 

UNITED STATES DISTRICT JUDGE

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

ROBERT FRIZZLE, )

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 2:06cv467-MHT

) (WO)

ELI LILLY and COMPANY and )

YOLANDA McCAIN, Sales )

Sales Representative, )

)

Defendants. )

ORDER

It is ORDERED that the motion for stay (doc. no. 4) is

granted and this cause is stayed pending MDL transfer.

See, e.g., Grant v. Eli Lilly and Company, civil action

no. 2:06cv464-MHT (M.D. Ala. July 27, 2006) (order staying

case, including remand motion, pending MDL transfer);

McCray-Martin v. Eli Lilly and Company, civil action no.

2:05cv1048-T (M.D. Ala. Nov. 22, 2005) (same); Muhammad v.

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Eli Lilly and Company, civil action no. 2:05cv1046-T (M.D.

Ala. Nov. 22, 2005) (same).

DONE, this the 27th day of July, 2006.

 /s/ Myron H. Thompson 

UNITED STATES DISTRICT JUDGE

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