Appeal from an order entered in the United States District Court for the Eastern District of New York (Weinstein, J.) denying reconsideration of a judgment entered in the United States District Court for the Southern District of Mississippi (Starrett, J.) denying a motion by plaintiff-appellant, a citizen of Mississippi, to remand the action to the Circuit Court of Forrest County, Mississippi following its removal to the Federal District Court by defendant-appellee drug manufacturer, a citizen of Indiana; and granting a motion by defendants-appellees, a mental health facility and three physicians employed there, all citizens of Mississippi, to dismiss the complaint for failure to state a claim against the Mississippi citizen defendants in an action asserting malpractice and negligence claims against them and products liability claims against the drug manufacturer, the District Court having determined: (1) that plaintiff had failed to comply with the notice requirements of the Mississippi Tort Claims Act, requiring dismissal of the claims against all the Mississippi citizen defendants; (2) that the Mississippi citizen defendants therefore were improperly joined with the non-citizen drug manufacturer in the removed state action; and (3) that diversity jurisdiction accordingly lies in federal court such as to warrant denial of remand.
Reversed with instructions to remand to the Circuit Court of Forrest County, Mississippi.
The opinion of the court was delivered by: Miner, Circuit Judge
Submitted: August 26, 2009
Before: MINER, POOLER, and KATZMANN, Circuit Judges.
Plaintiff-appellant Greg Bounds, a citizen of Mississippi, appeals from an order entered in the United States District Court for the Eastern District of New York (Weinstein, J.) denying reconsideration of a judgment entered in the United States District Court for the Southern District of Mississippi (Starrett, J.). In re Zyprexa Prods. Liab. Litig., Nos. 04-MD-1596; 08-cv-1364, 2008 WL 2466208 (E.D.N.Y. June 18, 2008). That judgment denied a motion by Bounds to remand this action to the Circuit Court of Forrest County, Mississippi following its removal to the United States District Court for the Southern District of Mississippi by defendant-appellee Eli Lilly Company, a citizen of Indiana. Greg Bounds v. Pine Belt Mental Health Care Res., No. 2:07cv356-KS-MTP, 2008 WL 552865 (S.D. Miss. Feb. 27, 2008). The judgment also granted a motion by defendants-appellees Pine Belt Mental Health Care Resources, Walid RahhalMohamed, M.D., Chris Lamousin, M.D. and Asim Ulusarac, M.D., all citizens of Mississippi, to dismiss for failure to state a claim against them (together, "the Mississippi citizen defendants"). Id. at *1, *4. In the complaint, Bounds pleaded, inter alia, negligence and malpractice claims against the Mississippi citizen defendants and product liability claims against the Eli Lilly Company. Id. at *1. The District Court determined: (1) that plaintiff had failed to comply with the notice requirements of the Mississippi Tort Claims Act (the "Act"), requiring dismissal of the claims against the Mississippi citizen defendants; (2) that the said defendants therefore were improperly joined with the Eli Lilly Company in the removed state action; and (3) that diversity jurisdiction accordingly lies in federal court such as to warrant denial of remand. Id. at *1, *3.
Bounds is fifty-one years of age and has been treated for various mental illnesses over a period of fifteen years. He has been committed by court order in the past to mental health facilities and has been adjudicated as totally disabled by reason of his mental disabilities by the Social Security Administration. In 1998, he became a patient of the Pine Belt Mental Health Care Resources ("Pine Belt") in Hattiesburg, Mississippi. At that facility, he came under the care of Doctors Mohamed, Lamousin and Ulusarac (the "physicians"), who were employees of the facility. In June of 1998, the physicians began to prescribe the drug known as Zyprexa for Bounds. Zyprexa is a drug manufactured by the Eli Lilly Company ("Eli Lilly") and used in the treatment of schizophrenia. Bounds claims that he immediately sustained adverse reactions to the drug but that the physicians continued to prescribe it for him.
In 2003, Bounds was diagnosed with the onset of diabetes mellitus type 2 or adult-onset diabetes. He claims that, despite public warnings that diabetes mellitus type 2 was a potentially dangerous side effect of Zyprexa, the physicians continued to prescribe it for his use over a period of approximately two years. In January of 2004, Bounds reported to the physicians that his personal physician had discovered neuropathy in both his feet, neuropathy being a condition said to be due to his diabetic condition and, ultimately, to the use of Zyprexa.
On November 25, 2006, counsel for Bounds forwarded a letter by certified mail to Pine Belt. The text of the letter in its entirety is as follows:
As attorney for Greg Bounds, this letter is to serve as the statutory notice required under Miss. Code Ann. § 15-1-36(15) of his claims of professional negligence against your facility and his intention to begin legal action within sixty (60) days of this notice. Primarily, Mr. Bounds alleges that you were professionally negligent in your failure to advise him that the prescription Zyprexa could result in various complications, including but not limited to diabetes, and your continued prescription of Zyprexa once he developed diabetes. Additionally, Mr. Bounds alleges that you were professionally negligent in your failure to advise and instruct your staff on the dangers and complications that studies had shown to be related to the prescription Zyprexa.
Mr. Bounds may assert such additional claims as his experts or representatives believe the evidence supports.
The "Miss. Code Ann. § 15-1-36 (15)" citation in the letter describes a Mississippi statute that requires sixty days prior written notice in advance of suit against any health care provider for professional negligence. This statute provides that the notice must advise the health care provider "of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered." Id. Apparently, there was no specific response to the letter, although the Mississippi citizen defendants do not contest the statement in Bounds' brief on appeal that, subsequent to the letter, "Bounds' attorney cooperated with the insurer and attorneys representing the Mississippi citizen defendants in providing additional information and medical releases for Bounds to facilitate their investigation of the claims."
II. Commencement of the Action, Removal, and Proceedings in the District Courts
This action was commenced by the filing of a complaint in the Forrest County Circuit Court on July 20, 2007. The complaint alleges causes of action in malpractice and professional negligence against the Mississippi citizen defendants (Count I); negligence and gross negligence against Eli Lilly (Count II); strict liability in tort and failure to warn against Eli Lilly (Count III); liability under the Mississippi Extended Manufacturers Liability Doctrine against all defendants (Count IV); breach of implied warranty against all defendants (Count V); breach of express warranty against all defendants (Count VI); fraud against all defendants (Count VII); and fraud by concealment against all defendants (Count VIII). The complaint included the following specific allegations in paragraph four thereof:
The Plaintiff specifically avers that the core claim alleged in this Complaint contends that the health care providers named as Defendants herein (to wit, Pine Belt Mental Health Care and the individual defendants Rahhal-Mohamed, Lamousin and Ulusarac) were professionally negligent and commitment [sic] medical malpractice in their treatment of the Plaintiff, with the claims alleged against the defendant Eil [sic] Lilly being primarily either a proximate cause of or a contributing factor to such professionally [sic] negligence, or otherwise alleging that Eli Lilly committed acts collaterally related to or causally connected to the alleged acts of professional negligence and medical malpractice. Accordingly, any attempt by any named Defendant herein to remove this case to federal court would be baseless in fact, frivolous and in contradiction to controlling and applicable legal authority.
Thereafter, on December 14, 2007, Eli Lilly removed the action to the United States District Court for the Southern District of Mississippi. In its Notice of Removal, Eli Lilly asserted that Bounds had failed to comply with the requirements of the Mississippi Tort Claim Act, Miss. Code Ann. § 11-46-11(1), which requires written notice containing specific information to be served within ninety days prior to filing suit on ...