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The manufacturers of the controversial pain medication OxyContin are batting .500 in their efforts to seek federal jurisdiction in lawsuits brought by patients who allegedly developed an addiction to the drug now that two Eastern District of Pennsylvania judges have issued conflicting opinions on the issue of whether the cases should be sent back to the state courts. In both cases, the specific issue before the federal judges was whether the Pennsylvania plaintiffs had fraudulently joined their Pennsylvania doctors as defendants in the suits for the sole purpose of defeating federal diversity jurisdiction In Yurcic v. Purdue Pharma Inc., U.S. District Judge Legrome D. Davis ruled that two physicians were fraudulently joined since the two-year statute of limitations had run for any malpractice claim against them. With no Pennsylvania defendants left in the case, Davis ruled that it was properly removed to federal court. Davis also concluded that the case should be transferred to the Middle District of Pennsylvania after finding that the plaintiff lives in the Middle District and received all his treatment there. But in Gaul v. NeuroCare Diagnostic Inc., U.S. District Judge Anita B. Brody remanded a case after finding that the plaintiffs had to prove only that there was a possibility that the state courts would side with them on the statute-of-limitations question. Brody found that when the defendants allege fraudulent joinder, the court must “resolve all contested issues of substantive fact in favor of the plaintiff and must resolve any uncertainties as to the current state of controlling state law in favor of the plaintiff.” Under the law of the 3rd U.S. Circuit Court of Appeals, Brody said, the standard of review is “permissive” and “heavily weighted in favor of the plaintiff.” Brody noted that in its 1990 decision in Boyer v. Snap-On Tools Corp., the 3rd Circuit held that “even a possibility” of a state court’s finding that the plaintiff’s complaint stated a claim against a resident-defendant was “enough to justify joinder and thus defeat removal.” And in the 1992 decision in Batoff v. State Farm Insurance Co., the 3rd Circuit elaborated on Boyer and held that “the inquiry into the validity of a complaint triggered by a motion to dismiss � is more searching than that permissible when a party makes a claim of fraudulent joinder.” As a result, Brody said, “even if plaintiff’s case is dismissed in state court it does not follow that defendants were fraudulently joined.” Instead, she said, “fraudulent joinder occurs only when the complaint is ‘wholly insubstantial and frivolous.’” Under that standard, Brody found, “if plaintiff possibly stated a state-law claim upon which relief can be granted against [the doctors], joinder is proper and the case should be remanded.” Brody found that plaintiff Roseanne Gaul had shown that there was a possibility that the Pennsylvania courts would toll the statute of limitations either under the discovery rule or the doctrine of fraudulent concealment. “Without delving deeply into the caselaw surrounding the parties’ claims, I find that either of the two exceptions to the statutory period could apply,” Brody wrote. “Prior to seeking treatment for addiction, plaintiff might have justifiably relied on the assurances of her doctor and thereby failed to discover the nature of her injury through no fault of her own,” Brody wrote. But Brody made it clear that she was not deciding the issue itself, but only that a valid issue existed. “In making this finding, I do not presume to instruct the state court or its jury as to what did occur. Rather, I find only that a colorable basis for plaintiff’s claim exists,” Brody wrote. By contrast, Davis concluded that the two physicians named as defendants in Michael Yurcic’s lawsuit were fraudulently joined. Under Pennsylvania law, Davis said, medical malpractice claims are governed by a two-year statue of limitations. Davis found that since the plaintiff admits that he was treated for his OxyContin addiction more than two years before he filed suit, he has no valid claim against the doctors. Attorney Mark B. Frost of Frost & Zeff represents plaintiff Roseanne Gaul. Attorneys Sol H. Weiss, Tracy A. Finken and Mark S. Stolee of Philadelphia-based Anapol, Schwartz, Weiss, Cohan, Feldman and Smalley represent plaintiff Michael Yurcic. Purdue Pharma was represented in both cases by attorneys Edward F. Mannino, David L. Comerford, Katherine Menapace and Jason A. Snyderman of Dallas-based Akin Gump Strauss Hauer & Feld.

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