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IN RE REZULIN PRODUCTS LIABILITY LITIGATION

United States District Court, S.D. New York


February 2, 2004.

In re: REZULIN PRODUCTS LIABILITY LITIGATION, This Document Relates to: 03 Civ. 2515

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

PRETRIAL ORDER NO. 226 (Purvis — Motion to Remand)
The Mississippi plaintiff here sued the manufacturer defendants and a Mississippi physician in the Mississippi state courts. The manufacturer defendants removed the action, contending that the non-diverse physician was joined fraudulently. Plaintiff moved to remand.

In a report and recommendation dated January 12, 2004, Magistrate Judge Gabriel W. Gorenstein found that the medical malpractice claim, alone among those against the physician, was legally sufficient and not joined fraudulently. He did, however, conclude that the malpractice claim was misjoined with the claims against the manufacturer defendants and recommended that the claim against that defendant be severed and remanded to the state courts. Plaintiff objects, contending that she cannot pursue separate claims against the manufacturer defendants and the physician by reason of the "one suit" provision of the Mississippi wrongful death statute, a contention that the Magistrate Judge rejected.

  The Mississippi wrongful death statute creates a cause of action for wrongful death and provides in relevant part:

"The action for such damages may be brought in the name of the personal representative of the deceased person for the benefit of all persons entitled under the law to recover, or by widow for the death of her husband, or by the husband for the death of the wife, or by the parent for the death of a child, or in the name of a child, or in the name of a child for the death of a parent, or by a brother for the death of a sister, or by a sister for the death of a brother, or by a sister for the death of a sister, or a brother for the death of a brother, or all parties interested may join in the suit, and there shall be but one (1) suit for the same death which shall ensue for the benefit of all parties concerned, but the determination of such suit shall not bar another action unless it be decided on its merits." Miss. Code Ann. § 11-7-13 (emphasis added).
It is plaintiff's submission that a severance and remand of her claim against the physician would Page 2 require her to give up either that claim or the claims against the other defendants.

  There is no basis for this contention. The evident purpose of Section 11-7-13 was to require all plaintiffs claiming damages by reason of a wrongful death to join in a single action. There is nothing in the language of the statute that suggests that where a plaintiff brings a single action that is severed against the wishes of the plaintiff, the plaintiff thereby loses its rights against the defendants in one or the other of the severed portions of the action. Neither of the cases plaintiff relies upon supports that proposition.

  Chism v. Burlington Northern R.R.Co., No. 1:95CV351-B-D, 1996 WL408907 (N.D. Miss. July 1, 1996), was a diversity case in which the plaintiff moved to add a non-diverse defendant and to remand the action to state court for lack of complete diversity. In granting the motion, the district court relied upon its view that a remand would be desirable because "[h]aving both defendants in [the] action would promote the efficient use of judicial resources and . . . [was] appropriate in the absence of a significant federal interest in deciding the state law issues raised in this cause." Id. at *3. It did not suggest that the one action provision of the wrongful death statute would have precluded a parallel state action against the non-diverse defendant; indeed, it appears to have assumed that it would not have done so. Id.

  White v. Fisher-Price, Inc., Nos. 1:96CV114-D-D, 96CV137-D-D, 1996 WL408051 (N.D. Miss. June 24, 1996), also is inapposite. The issue there was whether the consolidation in state court of two separate wrongful death actions — in only one of which was there complete diversity of citizenship — effectively combine the two into a single case in which complete diversity was lacking and thus defeat federal removal jurisdiction. The court relied on the one suit provision of the wrongful death statute to conclude that the state court consolidation order intended fully to merge the two actions and, in consequence, foreclosed removal. But here too, the decision does not suggest that a plaintiff whose single wrongful death action is severed involuntarily is foreclosed from pursuing more than one of the actions into which the single action was divided.

  Accordingly, the objections to the report and recommendation are overruled. Plaintiff's motion to remand is granted to the extent, and only to the extent, that Count V of the complaint, the malpractice claim against Dr. Clark is severed and remanded to the Mississippi court from which it was removed.

  SO ORDERED.

20040202

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