IN RE MASSACHUSETTS DIET DRUG LITIGATION

338 F.Supp.2d 198 (2004) | Cited 7 times | D. Massachusetts | September 17, 2004

MEMORANDUM AND ORDER

I. Introduction

These cases stem from the 1997 removal from the market of thediet drugs fenfluramine (marketed as Pondimin) anddexfenfluramine (marketed as Redux) based on informationsuggesting a connection between use of the drugs and thedevelopment of valvular heart disease ("VHD"). After the dietdrugs were removed from the market, thousands of former usersbrought numerous product liability lawsuits, includingapproximately one hundred class actions, against American HomeProducts Corp. In 1997, the Judicial Panel on MultidistrictLitigation established an MDL proceeding in the Eastern Districtof Pennsylvania and transferred the pending federal diet drugcases. Thousands of additional diet drug cases have since beentransferred to the MDL Court as tag-along cases.

In 1999, American Home Products reached a nationwide classaction settlement agreement with the plaintiffs, which the MDLCourt approved in August 2000. Brown v. Am. Home Prods. Corp.(In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine)Prods. Liab. Litig.), Nos. 1203, 99-20593, 2000 WL 1222042 (E.D.Pa. Aug. 28, 2000). The plaintiff class was comprised ofapproximately six million people in the United States who hadused Pondimin and Redux. The settlement agreement created astructure to compensate class members who were harmed by the diet drugs. It also provided class members theopportunity to exercise intermediate or back-end opt-out rightsin the future, which permitted them to forego the settlementbenefits and pursue their claims against American Home Productsthrough the tort system (subject to restrictions). Under theagreement, American Home Products was prohibited from assertingthe statute of limitations as a defense to a claim broughtpursuant to the downstream opt-out provisions.

In March and April 2004, more than 2,000 former users of thediet drugs, having exercised their opt-out rights, brought 195cases in the Massachusetts superior court against Wyeth, Inc.,the corporate successor to American Home Products. Wyeth is aDelaware corporation with a principal place of business in NewJersey. The plaintiffs, most of whom are not Massachusettsresidents, also named as defendants Indevus Pharmaceuticals,Inc., a Delaware corporation with a principal place of businessin Massachusetts, and Boehringer Ingelheim Pharmaceuticals, Inc.,a Delaware corporation with a principal place of business inConnecticut. Indevus was involved in the development andmarketing of Redux, and Boehringer was involved in itsproduction. Indevus and Boehringer were not parties to thesettlement agreement.

Wyeth has removed the 195 cases to this Court, arguing that theplaintiffs fraudulently joined Indevus as a defendant to defeatfederal diversity jurisdiction.1 Wyeth's theory is thatIndevus, a Massachusetts citizen for jurisdictional and removalpurposes, should be disregarded as a party because the plaintiffscannot, as a matter of law, assert any valid claims againstIndevus. Specifically, Wyeth urges that any claims by the plaintiffs against Indevus arenecessarily time-barred under Massachusetts law.2 Theplaintiffs have moved to remand the cases to the Massachusettscourt. They argue that Indevus is a proper defendant, and thatthe removal of the cases was improper under28 U.S.C. § 1441(b).3

II. Discussion

A. Wyeth's motion to stay

There is one matter that must be resolved before thejurisdictional issue is addressed. Wyeth has moved to stayproceedings in these cases pending transfer to the MDL Court,arguing that the MDL Court, because of its jurisdiction over andexperience with the class action diet drug cases, is in a betterposition to address the legal and factual issues presented by theplaintiffs' motions to remand Wyeth's arguments areunconvincing, and its motion to stay shall be denied.

The Judicial Panel on Multidistrict Litigation ("JPML") hasentered conditional transfer orders indicating that, pursuant to28 U.S.C. § 1407, these cases are to be transferred to the MDLCourt in the Eastern District of Pennsylvania. See ConditionalTransfer Order 126, dated Aug. 10, 2004, and Conditional TransferOrder 127, dated Aug. 17, 2004. However, the plaintiffs haveobjected to the transfer orders, and the transfer orders havebeen stayed until the issue is briefed and heard by the JPML. JPML Rule 1.5 provides that "[t]he pendency of a . . .conditional transfer order . . . does not affect or suspendorders or pretrial proceedings in the district court in which theaction is pending and does not in any way limit the pretrialjurisdiction of that court." In a standard letter to this Courtdated August 25, 2004, the JPML, citing Rule 1.5, advised: Thus your jurisdiction continues until any transfer ruling becomes effective. If you have a motion pending before you in any of the actions — particularly a motion to remand to state court (if the action was removed to your court) — you are encouraged to rule on the motion unless you conclude that the motion raises issues likely to arise in other actions in the transferee court, should we order transfer, and would best be decided there.

For a number of reasons, I find that it is proper and efficientto rule on the pending motions to remand rather than wait for theJPML to decide whether to transfer the cases to the MDL Court.The primary issue presented by the motions to remand requiresconsideration of the Massachusetts statute of limitations and itsqualifying "discovery rule" — an issue as to which the MDL Court,respectfully, has no superior experience or expertise. Further,it does not appear that the issue, involving as it doesMassachusetts law, is one that is likely to arise in other dietdrug litigation in other courts. I am also not persuaded byWyeth's arguments that resolution of the motions to remandimplicates issues that are within the exclusive jurisdiction ofthe MDL Court, such as interpretation of the settlementagreement; as indicated below, the motions to remand can beresolved without encroaching on the exclusive territory of theMDL Court. Accordingly, I, like several other federal districtcourts confronted with motions to stay and to remand, will denyWyeth's motion to stay and address the merits of the plaintiffs'motions to remand See, e.g., Collett v. Freid, Civ. ActionNo. 03-526 (E.D. Ky. July 15, 2004) (denying Wyeth's motion tostay and plaintiff's motion to remand); Bejarano v. Wyeth, Civ.Action No. L-03-53 (S.D. Tex. June 27, 2003) (same). B. The plaintiffs' motions to remand

1. Fraudulent joinder standard

Section 1441(a) of Title 28 of the United States Code permits adefendant in a state court action to remove the action to thefederal court in the state in which it was filed if the federalcourt would have original jurisdiction over the case. Section1441(b) provides, however, that if the basis for removal isdiversity of citizenship jurisdiction, then removal is notpermitted if any properly joined defendant is a citizen of thestate in which the action was originally brought. Here, Indevusis a citizen of Massachusetts, where it has its principal placeof business. Nevertheless, Wyeth has removed the cases, assertingthat the plaintiffs fraudulently joined Indevus as a defendant inorder to defeat removal.

The First Circuit has written little about the doctrine offraudulent joinder and has not set forth a standard for applyingit. In re New England Mut. Life Ins. Co. Sales Practice Litig.,324 F. Supp.2d 288, 297-98 (D. Mass. 2004). The Supreme Court andother circuit courts have provided some guidance on the issue,and Judge Saris of this District recently reviewed and summarizedsome of those decisions. See Mills v. Allegiance HealthcareCorp., 178 F. Supp.2d 1, 4-6 (D. Mass. 2001). I will apply thedoctrine as Judge Saris persuasively framed it.

A defendant who seeks to remove a case from the state court,asserting fraudulent joinder of a defendant, has the burden toprove by clear and convincing evidence either that there has beenan outright fraud committed in the plaintiff's pleadings or thatthere is no reasonable basis in law and fact for the plaintiff'sclaim against the putative fraudulently joined defendant. Id."A mere theoretical possibility of recovery under state law doesnot suffice to preclude removal." Id. at 5. Rather, "[t]he linchpin of the fraudulent joinder analysis iswhether the joinder of the non-diverse party has a reasonablebasis in law and fact." Id. at 4. "So long as the plaintiffshave an objectively valid basis for joining [the defendant] inthe complaint, their subjective motivations are largelyirrelevant." Id. at 6.

To determine whether a party has been fraudulently joined todefeat diversity jurisdiction, a court starts with the parties'pleadings but may also consider summary judgment type evidence,such as affidavits, transcripts, and exhibits. Id. at 5-6. Allfact and legal ambiguities must be resolved in the plaintiff'sfavor. Id. at 6. Further, the removal and diversityjurisdiction statutes should be strictly construed againstfederal jurisdiction to avoid infringing the rights of statecourts to determine matters of state law. See City ofIndianapolis v. Chase Nat'l Bank, 314 U.S. 63, 76 (1941);Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09(1941); Danca v. Private Health Care Sys., Inc., 185 F.3d 1, 4(1st Cir. 1999). Any doubts concerning the court's jurisdictionshould be resolved against removal and in favor of remand to thestate court. Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111(3d Cir. 1990).

Under this standard, it is not my responsibility at this stageto forecast the plaintiffs' likelihood of success on their claimsagainst Indevus, for the inquiry is not whether the plaintiffshave winning claims. Fabiano Shoe Co. v. Black Diamond Equip.,Ltd., 41 F. Supp.2d 70, 72 (D. Mass. 1999). Instead, I mustdetermine whether there is an objectively reasonable basis forthe claims; if so, then federal jurisdiction is lacking and thestate court should be permitted to hear the claims. 2. Statutes of limitations

In a nutshell, Wyeth argues that the plaintiffs' claims againstIndevus are so clearly barred by the applicable statutes oflimitations that Indevus should be disregarded as a partydefendant, thus negating the § 1441(b) obstacle to removal.

Under Massachusetts law, a three-year statute of limitationsapplies to the plaintiffs' tort-based product liability claims,such as defective design, failure to warn, negligence, andfraudulent and negligent misrepresentation. See Mass. Gen. Lawsch. 260, § 2A; id. ch. 106, § 2-318. A four-year statute oflimitations applies to plaintiffs' claims under Chapter 93A, theMassachusetts Consumer Protection Act. See id. ch. 260, § 5A.The plaintiffs, therefore, were required to bring their claimswithin three or four years, as applicable, of when their causesof action accrued, unless the limitations periods were tolled.

a. Discovery rule

Like other jurisdictions, Massachusetts recognizes a "discoveryrule" corollary to its statutory limitations on the timelycommencement of actions. Bowen v. Eli Lilly & Co.,557 N.E.2d 739, 740-41 (Mass. 1990). Under the discovery rule, the runningof the statute of limitations is tolled until the plaintiff knowsor reasonably should know that he may have been tortiously harmedby a defendant's conduct. Bowen, 557 N.E.2d at 740-42; seealso Olsen v. Bell Tel. Labs., Inc., 445 N.E.2d 609, 611-12(Mass. 1983). The Massachusetts discovery rule has been found toapply to product liability claims such as those brought here.See, e.g., Bowen, 557 N.E.2d at 740-42 (applying discoveryrule to product liability claims stemming from ingestion ofprescription drug); see also Olsen, 445 N.E.2d at 611-13(applying discovery rule in product liability action stemmingfrom work-place exposure to chemicals). A plaintiff need not know the full extent or the cause of hisinjury. Riley v. Presnell, 565 N.E.2d 780, 784 (Mass. 1991)("One need not apprehend the full extent or nature of an injuryin order for a cause of action to accrue."); Bowen,557 N.E.2d at 741 (the discovery rule "does not require that the plaintiffknow or have reason to know that the defendant violated a legalduty to the plaintiff, but only that she knew or had reason toknow that she had been harmed"). See also Olsen,445 N.E.2d at 612 ("If knowledge of the extent of injury were to control theaccrual of a cause of action, the fixed time period of statutesof limitations effectively would be destroyed."). Instead,"[w]here injury is present but not discernible, or an injury isrecognized but its cause is not ascertainable, accrual of thecause of action is held to be in abeyance until the time when amodicum of knowledge supplants ignorance in the mind of theclaimant, or may be reasonably imputed to her." Lijoi v. Mass.Bay Transp. Auth., 548 N.E.2d 893, 895 (Mass.App. Ct. 1990);see also Bowen, 557 N.E.2d at 741 ("the statute oflimitations starts to run when an event or events have occurredthat were reasonably likely to put the plaintiff on notice thatsomeone may have caused her injury").

The discovery rule also does not excuse willful ignorance; itholds a plaintiff accountable for what reasonable inquiry wouldhave revealed. Bowen, 557 N.E.2d at 743 ("Reasonable noticethat a particular product or a particular act of another personmay have been a cause of harm to a plaintiff creates a duty ofinquiry and starts the running of the statute of limitations.")."[T]he discovery rule, while affording some protection to aplaintiff, also imposes on him an obligation to investigate thecause of his injury." Zamboni v. Aladan Corp.,304 F. Supp.2d 218, 224 (D. Mass. 2004). Accordingly, actual knowledge of aninjury and cause of the harm is not required to trigger thestatute of limitations; knowledge may be imputed to a plaintiff,or a plaintiff may be charged with constructive knowledge. An objective standard is applied to measure what a plaintiffshould have known, according to what a reasonable person in theplaintiff's position, exercising reasonable diligence inpursuance of the duty to inquire into his injury, would haveknown. Bowen, 557 N.E.2d at 742 (reviewing "summary judgmentrecord to see whether a reasonable person in the position of theplaintiff would have been on notice" of the cause of her injury);Riley, 565 N.E.2d at 785 ("Individual variations in judgment,intellect, or psychological health which are unrelated to thecomplained-of conduct are not considered. Only if a reasonableperson in the plaintiff's position would have been able todiscern the harm or cause of the harm will the cause of actionaccrue and the limitations period begin to run."). "Indetermining whether a party has sufficient notice of causation,our inquiry is whether, based on the information available to theplaintiff, a reasonably prudent person in the plaintiff'sposition should have discovered the cause of his or herinjuries." McGuinness v. Cotter, 591 N.E.2d 659, 666 (Mass.1992).

"[T]he question when a plaintiff knew or should have known ofhis cause of action is one of fact which in most instances willbe decided by the trier of fact." Riley, 565 N.E.2d at 783.That the issue presents a question of fact, however, does not barme from finding fraudulent joinder at this stage if the pleadingsand record, viewed in the light most favorable to the plaintiff,reveal that there is no reasonable basis in law or fact forbelieving the plaintiffs' actions to be timely.

b. Application of the discovery rule

The plaintiffs are all former users of the diet drugs Redux andPondimin, which were removed from the market in September 1997.Wyeth argues that the statutes of limitations began to run on theplaintiffs' claims at that time because any injury the plaintiffssustained as a result of using the diet drugs would have beendetectable shortly after the time of their use (which had to havebeen before September 1997), and because the wide-spread publicitysurrounding the withdrawal of the diet drugs from the market putpersons who had been using the drugs, including the plaintiffs,on inquiry notice as to any injuries they may have suffered andany legal claims that might consequently have arisen.

As to its first argument, i.e., that any injury wasdetectable prior to or shortly after September 1997, Wyeth relieson the findings of the MDL Court at the time it approved thesettlement agreement. The MDL Court found that there was nolatency period between the use of the diet drugs and thedevelopment of valvular heart disease, and consequently anyinjury that use of the diet drugs may have caused was detectableshortly after their use: The clinical and epidemiological studies demonstrate — and all the experts agree — that insofar as the use of fenfluramine or dexfenfluramine results in an increased prevalence of valvular regurgitation, that regurgitation is detectable by echocardiogram shortly after the patients discontinue use of diet drugs. Conversely, there is no evidence that the use of the drugs results in any increased risk of regurgitation that is "latent" and not detectable by today's sophisticated echocardiographic technology.Brown, 2000 WL 1222042 at *46.

Wyeth argues that this finding is binding on the plaintiffsbecause, as class members, they are barred by judicial andcollateral estoppel from re-litigating the issue of latency. Theplaintiffs argue that the issue of latency is irrelevant: "theinquiry under the Massachusetts discovery rule is not when theinjury occurred, but rather when the injury could reasonablyhave been discovered by the plaintiff. Wyeth's contention thatVHD is not a latent injury simply has no bearing on thatinquiry." Plaintiffs' Mem. Supp. Mot. to Remand at 9. Althoughthey do not explicitly say so, this argument suggests that theplaintiffs are not arguing that they did not develop theirinjuries until after September 1997 but only that they could notor should not have discovered them until later. As to this latterargument, I agree with the plaintiffs that the issue of latencyis irrelevant here. In other words, if it is assumed that the harm caused by the diet drugs was not latent,so that the plaintiffs' injuries, if any, were present bySeptember 1997, nevertheless the relevant question for presentpurposes is when the plaintiffs should have discovered the harm.

As to that central question, Wyeth argues that the plaintiffswere on inquiry notice and should have discovered their injuriesbecause of the extensive publicity surrounding the withdrawal ofthe diet drugs from the market. According to Wyeth, beginning inSeptember 1997 the mass media was flooded with an overwhelmingamount of information linking the diet drugs to valvular heartdisease, indicating that even users who were experiencing nosymptoms may have been injured, and suggesting that all usersseek medical attention. For example, Wyeth issued a pressrelease, purchased advertisements in many national and regionalnewspapers, and sent information to approximately 450,000 doctorsand pharmacists. The Food and Drug Administration also issued apress release, and the information was reported on morning andevening television news programs and front pages of newspapersthroughout the country.

Wyeth contends that the publicity in and around September 1997was so extensive that no reasonable user of diet drugs could havemissed it, or to put it differently, the plaintiffs should becharged with constructive knowledge of the publicity. Further,had the plaintiffs heeded the message of that publicity, theywould have sought medical attention, obtained an echocardiogram,and learned of any injury that was present. See Brown, 2000WL 1222042 at *18 ("Pondimin and Redux were withdrawn from themarket in September 1997 accompanied by an unprecedented amountof publicity which effectively warned diet drug users that theymay have developed valvular lesions which could be detectedthrough non-invasive echocardiograms."). Wyeth alternatively argues that the subsequent extensivepublicity, between October 1999 and February 2000, concerning theclass action settlement agreement was sufficient to put diet drugusers on notice of the need to seek medical attention and thustrigger the running of the statute of limitations. During thattime, the parties to the settlement agreement, with the approvalof the MDL Court, implemented a highly sophisticated, elaborate,and extensive notice program "designed to make class membersaware of the potential risks posed by Pondimin and Redux, of thelegal rights arising from the use of those drugs, of the proposednationwide class action settlement which would resolve suchclaims and of their opportunity to opt out or object to theSettlement." Brown, 2000 WL 1222042 at *35. The MDL Courtdescribed the scope and content of the publicity, id. at*35-*38, and concluded that it was "highly successful" atreaching and educating the targeted class members. Id. at *36.Wyeth further contends that the extensive publicity unambiguouslyadvised all users to obtain an echocardiogram, which would revealany harm caused by the diet drugs. Thus, Wyeth argues that thestatute of limitations began to run at the very latest byFebruary 2000, and the plaintiffs' claims against Indevus arebarred because they were brought more than four years later, inMarch and April 2004.

The plaintiffs allege that they did not learn of their injuriesuntil they had echocardiograms in 2001 or 2002, within threeyears of their filing their claims, and they argue that theycould not and should not have discovered their injuries anysooner. They allege that, after the diet drugs were removed fromthe market in 1997, they acted diligently, sought medical care,and followed the advice of their doctors, but their injuriesremained asymptomatic and undiscovered until echocardiograms wereperformed in 2001 or 2002. They deny having knowledge of the needfor echocardiograms any sooner and argue that the publicity in 1997, 1999, and 2000 wasinsufficient to put them on notice of the need for thatprocedure.

The parties' competing arguments concerning the application ofthe discovery rule to the facts of the plaintiffs' claims raiseat least two material disputed questions of fact. First, to whatextent should knowledge of the wide-spread publicity be imputedto a plaintiff in the absence of evidence of actual notice tothat plaintiff?4 And, second, was the content of thepublicity sufficient to put a plaintiff on notice that undergoingan echocardiogram would provide an answer to the question whethershe had been harmed by any diet drugs she had taken? For presentpurposes, my role is not to act as a fact-finder and conclusivelyresolve these disputed issues. Rather, in considering the pendingmotions to remand and Wyeth's fraudulent joinder argument, I mustdetermine whether there is any reasonable basis, on the recordbefore me, for the plaintiffs' contention that the discovery ruleoperated to toll the statute of limitations sufficiently so thattheir various actions could be considered timely underMassachusetts law.5 I conclude that there is a reasonablebasis for the plaintiffs' argument, and consequently conclude that Wyeth has not shown thatIndevus was fraudulently joined as a defendant.6

To resolve the dispute over whether any or all of theplaintiffs should be charged with constructive knowledge of theneed for an echocardiogram, a fact-finder would need to determinewhether the publicity was sufficient to put a reasonable dietdrug user in each plaintiff's position on notice of the need foran echocardiogram. See McGuinness, 591 N.E.2d at 666. Thatdetermination will necessarily depend on the circumstancespertaining to each plaintiff, such as where he lived and whatmedia coverage there was in that location. In addition, thefact-finder will need to consider the content of the publicity towhich a reasonable diet drug user would have been exposed in anyparticular locality. It may be that individuals in some locationswere put on notice of the need for an echocardiogram whileothers, in different locations, were not. These issues have notbeen litigated as to these plaintiffs, and they should beresolved only upon a completely developed summary judgment recordor at trial, if one is warranted.

Decisions from other courts dealing with similar issues confirmthe conclusion that a clear answer in Wyeth's favor is notpossible at this stage. For example, in Cascone v. UnitedStates, 370 F.3d 95 (1st Cir. 2004), the First Circuitconsidered whether the discovery rule saved the plaintiff'swrongful death action under the Federal Tort Claims Act when theclaim was brought after the statutory limitations period hadpassed. In Cascone, the plaintiff's husband died at a veteranshospital operated by the federal government in Northampton,Massachusetts. Shortly after the patient's death, a nurse at thehospital, Kristen Gilbert, was indicted for the death of certainpatients, but not the death of the plaintiff's husband Gilbert's indictment receivedextensive publicity throughout Massachusetts. Eventually, theplaintiff's husband's death was linked to Gilbert, and theplaintiff filed her claim under the FTCA. The government moved todismiss the claim as barred by the statute of limitations, andthe plaintiff argued that the discovery rule tolled the statuteof limitations.

The First Circuit considered whether there had been sufficientpublicity to put the plaintiff on notice that her husband's deathmay have occurred under suspicious circumstances and concludedthat there was not, permitting the action to continue. Inreaching its conclusion, the Court engaged in a fact-intensiveinquiry concerning the nature and extent of the publicity and thecharacteristics of the plaintiff. The Court explained: Whether a plaintiff should, in the exercise of reasonable diligence, have discovered necessary facts is an objective inquiry. Nonetheless, the particular circumstances of individual plaintiffs can be relevant to the outcome. The issue is whether a reasonable person similarly situated to the plaintiff would have known the necessary facts. Where the plaintiff resides can be a factor when information about the underlying facts is limited to certain geographic areas. This is often true, for example, when notice is based on local television or press reports. How often a plaintiff communicates with other family members who have access to more information can also be relevant.Id. at 104 (citations omitted) (emphasis in original). To reachits conclusion that the district court improperly granted summaryjudgment in the government's favor, the Court "examine[d] severalfactors: the geographical scope of the coverage vis-a-vis thefamily members, the content of the stories, and the degree ofpress and media saturation." Id. at 99.

The Ninth Circuit has also addressed several cases concerningthe extent to which knowledge of wide-spread publicity should beimputed to plaintiffs for purposes of applying the discoveryrule. In O'Connor v. Boeing N. Am., Inc., 311 F.3d 1139 (9thCir. 2002), the Court found that the district court improperlygranted summary judgment in favor of the defendants as to whetherpublicity was sufficient to put the plaintiffs on notice of a connectionbetween their illnesses and releases from the defendants' nuclearand rocket testing facilities. In reaching that conclusion, theCourt found that the determination of what the plaintiffs shouldhave known

required a fact-intensive examination of the geographic scope of the circulation of various publications, the level of saturation of each publication within the relevant communities, the frequency with which articles on the Rocketdyne facilities appeared in each publication, the prominence of those articles within the publication, and the likelihood that a reasonable person living in Plaintiffs' various communities at the same time as Plaintiffs would have read such articles. These are all factual questions unsuitable for summary judgment.Id. at 1152-53 (citation omitted); see also Bibeau v. Pac.Northwest Research Found. Inc., 188 F.3d 1105, 1110 (9th Cir.1999) (reversing summary judgment because whether "litany of newsreports and other public relations" were sufficient to putplaintiff on inquiry notice of cause of injuries was question offact for jury to resolve based on consideration of, for example,plaintiff's exposure to reports and education level); Sanborn v.United States (In re Swine Flu Prods. Liab. Litig.),764 F.2d 637 (9th Cir. 1985) (reversing summary judgment because jury mustdetermine whether publicity and general community awareness weresufficient to support finding that plaintiff should have known ofcause of wife's death).

It is also true that a number of courts have come out the otherway and affirmed summary judgment in a defendant's favor based onfindings that publicity was sufficiently wide-spread to put aplaintiff on notice of the cause of his injury. See, e.g.,Ball v. Union Carbide Corp., 376 F.3d 554, 563-64 (6th Cir.2004) (finding that local and national media coverage weresufficient to put plaintiffs on notice of the connection betweenthe defendants' conduct and their injuries); Hughes v.Vanderbilt Univ., 215 F.3d 543, 548 (6th Cir. 2000) (findingthat "publicity was sufficient to charge Hughes with constructiveknowledge of the events underlying her cause of action");Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 403-04 (5th Cir. 1998)(finding extensive media publicity should have put plaintiff oninquiry notice of possible connection between her cancer andexposure to Agent Orange).

However, all the cases just discussed, whether affirming orreversing summary judgment, agree that the determination whetherpublicity is sufficient to put a plaintiff on notice and triggerthe statute of limitations requires a fact-intensive inquiry intothe pervasiveness and content of the publicity and the particularcircumstances of the relevant plaintiff(s). While thatdetermination can be made on summary judgment in some cases, itis the circumstances of each case that govern the outcome.

Further, the MDL Court's finding that the scope andpervasiveness of the publicity were sufficient to put classmembers on notice of the class action settlement is neitherbinding nor persuasive as to the issue presented here. SeeBrown, 2000 WL 1222042 at *35-*38 (describing elaborate andextensive notice plan and finding it "highly successful"). Thesettlement of a Rule 23(b)(3) class action is binding on allclass members as to matters within the action, and due processrequires that adequate notice be given to class members. See 7BCharles Alan Wright et al., Federal Practice and Procedure §1786 (2d ed. 1986). Neither Rule 23 nor due process, however,requires that each class member receive actual notice; theparties are required only to provide "the best notice practicableunder the circumstances." Fed.R. Civ. P. 23(c)(2); see alsoIn re Prudential Ins. Co. of Am. Sales Practices Litig.,177 F.R.D. 216, 231-32 (D.N.J. 1997) (citing cases to supportconclusion that "[c]ourts have consistently recognized that dueprocess does not require that every class member receive actualnotice so long as the court reasonably selected a means likely toapprise interested parties"). Something less than actual noticeto all class members is tolerated in order to strike a balance between the due process concerns and the need for amechanism, i.e., the class action, to efficiently litigatecertain cases involving numerous parties. See Wright, supraat 17.

Accordingly, in its decision in Brown, the MDL Court wasconcerned with whether notice was adequate to satisfy Rule 23 anddue process requirements. It found the requirements satisfiedbecause the parties had provided the "best notice practicableunder the circumstances." Its conclusion also was influenced inpart by provisions of the settlement agreement that affordedprotections to absent class members who might miss theiropportunity to object or opt out prior to approval of thesettlement agreement. For example, the Court found that, inaddition to the adequacy of notice, due process concerns weresatisfied because the settlement agreement afforded absent classmembers the opportunity to opt out even after the settlementagreement had been approved, and Wyeth had agreed to waive anystatute of limitations defense on claims brought pursuant to theopt-out provisions. Brown, 2000 WL 1222042 at *39.

The key point is that what notice concerning matters affectingclass litigation is sufficient to bind class members to theoutcome of the case, a question of federal law, and what noticeof possible injury and responsibility for that injury issufficient to start the limitations clock ticking, a question ofstate law, are two separate questions to which the answer neednot be the same. If the question here was whether the plaintiffs'claims were barred by a ruling in the class action, the MDLCourt's approval of the class notice would establish that theclass members had adequate notice. But that is not the question.The widespread notice required by the MDL Court is, of course, afactor (among others) to be considered in assessing whether anyplaintiff was sufficiently on notice of a possible claim that thediscovery rule would no longer suspend the running of thelimitations period. It does not by itself determine the answer. I recognize that the MDL Court and other federal districtcourts have been confronted with issues similar to thosepresented here and reached the conclusion that claims againstother defendants (not Indevus) were barred by the applicablestatutes of limitations because the publicity and class noticeput class members on notice of their injuries. However, I amneither compelled nor persuaded to follow those decisions. Theywere presumably decided on the facts particular to those cases.So must these cases be decided on their own facts. Any interestin uniformity or efficiency that would otherwise be advanced bydeferring to the MDL (and other courts that have previouslyconsidered similar issues) must yield to statutory limitations onfederal jurisdiction.

III. Conclusion

As set forth above, I conclude that Wyeth has failed toestablish that there is no reasonable basis for the plaintiffs'claims against Indevus, and therefore, I conclude that Indevuswas not fraudulently joined as a defendant. Accordingly, Wyeth'smotion to stay is denied, and the plaintiffs' several motions toremand are granted.

The cases are to be remanded to the state court.

It is SO ORDERED. APPENDIX A

The accompanying Memorandum and Order on Wyeth's motion to stayand the plaintiffs' motions to remand shall apply in each of thefollowing cases:

1. Andrus et al. v. Indevus Pharmaceuticals, Inc. et al.,04-10911-GAO

2. Walker v. Indevus Pharmaceuticals, Inc. et al., 04-11034-GAO

3. Perkins et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11035-GAO

4. Jauregui-Ruiz et al. v. Indevus Pharmaceuticals, Inc. etal., 04-11036-GAO

5. Carver et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11037-GAO

6. Anderson et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11038-GAO

7. Amadeo et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11039-GAO

8. Laird v. Indevus Pharmaceuticals, Inc. et al., 04-11040-GAO

9. Beane et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11041-GAO

10. Kajkowski et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11042-GAO

11. Antuono et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11043-GAO

12. Carothers et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11051-GAO

13. Daily et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11052-GAO

14. Alkire et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11053-GAO

15. Ellis et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11054-GAO 16. Cedeno et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11055-GAO

17. Asbelle et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11056-GAO

18. Erick et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11057-GAO

19. Saluzzo et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11058-GAO

20. Miller et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11059-GAO

21. Britton et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11060-GAO

22. Balistreri et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11061-GAO

23. DaCasta et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11062-GAO

24. Armstrong et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11063-GAO

25. Aguilar et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11064-GAO

26. Colerick et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11065-GAO

27. Atherton et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11066-GAO

28. Fuller et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11067-GAO

29. Strong et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11068-GAO

30. Apperson et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11078-GAO

31. Anderson et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11081-GAO

32. Alexander et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11082-GAO

33. Chalkline et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11083-GAO

34. Hauk et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11084-GAO

35. Miller et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11085-GAO

36. Cole et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11086-GAO

37. Hunt et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11087-GAO 38. Adams et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11088-GAO

39. Taylor et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11089-GAO

40. Jenkins et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11090-GAO

41. Arrowood et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11091-GAO

42. Black et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11092-GAO

43. Ambroz et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11093-GAO

44. Ewing et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11094-GAO

45. Dacus et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11095-GAO

46. Armstrong et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11096-GAO

47. Crouch et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11097-GAO

48. Carr et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11098-GAO

49. Jones et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11099-GAO

50. Ellingson v. Indevus Pharmaceuticals, Inc. et al.,04-11104-GAO

51. Bennett et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11105-GAO

52. Ausevich et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11106-GAO

53. Suber et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11138-GAO

54. Symonds et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11139-GAO

55. Dumond et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11140-GAO

56. Meidinger et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11141-GAO

57. Badger et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11142-GAO

58. Rhone et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11143-GAO

59. Clayton et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11144-GAO 60. Hansen et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11145-GAO

61. Wright et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11146-GAO

62. Sosa et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11147-GAO

63. Hill et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11154-GAO

64. Spencer et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11155-GAO

65. Kozma et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11156-GAO

66. Krishnappa et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11157-GAO

67. Roberts et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11158-GAO

68. Burgess et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11159-GAO

69. Fletcher et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11160-GAO

70. Bishop et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11161-GAO

71. Ault et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11162-GAO

72. Benton et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11163-GAO

73. Alden et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11176-GAO

74. Chance et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11177-GAO

75. Harrelson et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11178-GAO

76. Bailey et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11179-GAO

77. Luckritz et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11180-GAO

78. Kline et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11181-GAO

79. Anderson et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11182-GAO

80. Dolliver et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11183-GAO

81. Hitchcock et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11184-GAO 82. Cline et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11185-GAO

83. Arnold et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11186-GAO

84. Bischof et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11187-GAO

85. Bartholomew et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11188-GAO

86. Becker et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11189-GAO

87. Barefoot et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11198-GAO

88. Cowell et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11199-GAO

89. Richard et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11200-GAO

90. Sylvester et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11201-GAO

91. Cockrell et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11202-GAO

92. Duffy et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11203-GAO

93. Knott et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11204-GAO

94. Malone et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11205-GAO

95. Perschall et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11206-GAO

96. Brown et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11207-GAO

97. Bennett et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11208-GAO

98. Netherland et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11209-GAO

99. Burton et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11210-GAO

100. Barry et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11211-GAO

101. Watson et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11224-GAO

102. Truxillo et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11225-GAO

103. Walker et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11226-GAO 104. Antoniou et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11227-GAO

105. Stewart v. Indevus Pharmaceuticals, Inc. et al.,04-11228-GAO

106. Pardue v. Indevus Pharmaceuticals, Inc. et al.,04-11229-GAO

107. Rome et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11230-GAO

108. Morris et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11231-GAO

109. Gilmore et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11232-GAO

110. Badeaux et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11233-GAO

111. Wirkkala et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11244-GAO

112. Baker et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11245-GAO

113. Reital et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11246-GAO

114. Beznaiguia et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11247-GAO

115. Bowman et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11249-GAO

116. Hill et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11250-GAO

117. Ford et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11251-GAO

118. Henry et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11252-GAO

119. Green et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11253-GAO

120. Irving et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11254-GAO

121. Mikel et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11255-GAO

122. Anderson et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11256-GAO

123. Simmons et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11257-GAO

124. Calkins et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11260-GAO

125. Lane et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11261-GAO 126. Franklin et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11262-GAO

127. Alvarado et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11264-GAO

128. Ross et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11265-GAO

129. Horton et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11266-GAO

130. Barlow et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11267-GAO

131. Collins et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11268-GAO

132. Boomhower et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11269-GAO

133. Althen et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11270-GAO

134. Reed et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11280-GAO

135. Medlock et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11281-GAO

136. Gulledge-Smith et al. v. Indevus Pharmaceuticals, Inc. etal., 04-11282-GAO

137. Adams et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11283-GAO

138. Simoneaux et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11284-GAO

139. Blackenship et al. v. Indevus Pharmaceuticals, Inc. etal., 04-11285-GAO

140. Daigle et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11286-GAO

141. Hoffman et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11287-GAO

142. Akehurst et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11288-GAO

143. Campbell et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11289-GAO

144. Allen et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11298-GAO

145. Jones et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11299-GAO

146. Kim et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11302-GAO

147. Soignet et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11303-GAO 148. Amidon et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11304-GAO

149. Cosey et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11305-GAO

150. Bougeois et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11306-GAO

151. Fiore et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11307-GAO

152. Jefferson et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11308-GAO

153. Rhudy et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11309-GAO

154. Aroca et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11319-GAO

155. Brandenburg et al. v. Indevus Pharmaceuticals, Inc. etal., 04-11320-GAO

156. Banfield et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11321-GAO

157. Wellington et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11322-GAO

158. Munster et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11323-GAO

159. Alderson et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11324-GAO

160. Boyd-Taylor et al. v. Indevus Pharmaceuticals, Inc. etal., 04-11325-GAO

161. Bouche et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11326-GAO

162. Hampel v. Indevus Pharmaceuticals, Inc. et al.,04-11327-GAO

163. Putnam et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11328-GAO

164. Williams et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11342-GAO

165. Tyson et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11343-GAO

166. Anderson et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11344-GAO

167. Campbell et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11345-GAO

168. Anderberg et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11346-GAO

169. Ellis et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11347-GAO 170. Datcher et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11348-GAO

171. Capers et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11350-GAO

172. Fowler et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11351-GAO

173. Allen-Dixon et al. v. Indevus Pharmaceuticals, Inc. etal., 04-11352-GAO

174. Barber et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11353-GAO

175. Vermillion et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11365-GAO

176. Adeleke et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11366-GAO

177. Kramer et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11367-GAO

178. Jeffries et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11368-GAO

179. Farnsworth et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11369-GAO

180. Omenebelle et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11370-GAO

181. Phipps et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11371-GAO

182. Stubbs et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11372-GAO

183. Cressionnie et al. v. Indevus Pharmaceuticals, Inc. etal., 04-11373-GAO

184. Dukes et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11374-GAO

185. Mullany v. Indevus Pharmaceuticals, Inc. et al.,04-11375-GAO

186. Mileo et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11386-GAO

187. Jones et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11387-GAO

188. Garvin et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11388-GAO

189. Clark et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11389-GAO

190. Russell et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11390-GAO

191. Johnson et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11427-GAO 192. Malzahn et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11428-GAO

193. Willette et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11429-GAO

194. Garcia v. Indevus Pharmaceuticals, Inc. et al.,04-11543-GAO

195. Abraham et al. v. Indevus Pharmaceuticals, Inc. et al.,04-11714-GAO

1. Each of the 195 cases has been removed separately andassigned a unique docket number in this Court. On July 13, 2004,I ordered that the cases collectively should be referred to usingthe caption, "In re Massachusetts Diet Drug Litigation" and thatall documents filed in Andrus, et al. v. Wyeth, et al., CivilAction No. 04-10911 — the first case docketed here — shall bedeemed filed in each of the related diet drug cases. Accordingly,this Memorandum and Order shall apply to each of the 195 dietdrug cases that Wyeth has removed to this Court, as identified inAppendix A.

2. Unlike Wyeth, Indevus was not a party to the class actionsettlement agreement and is not barred by that agreement fromasserting the statute of limitations as a defense against claimsconcerning the diet drugs.

3. In its notices of removal, Wyeth asserted two additionalbases for removal: that Boehringer was fraudulently joined as adefendant and that the claims of certain plaintiffs weremisjoined. The parties have not briefed these issues; therefore,I have not addressed them.

4. Wyeth does not present evidence of actual notice; itsargument is that the notoriety of the diet drug class action andrelated matters was such that all plaintiffs should be chargedwith notice.

5. I note that a justice of the Massachusetts Superior Courtrecently denied Indevus's motion for summary judgment on theissue whether the Massachusetts discovery rule tolled thestatutes of limitations on claims brought by four diet drug users(who are not parties here) against Indevus, concluding that therewas a trial-worthy issue of fact as to when the plaintiffs,exercising reasonable diligence, should have discovered theirclaims. See Sawyer v. Indevus Pharms., Inc., No. 03-5028-B,2004 WL 1739405 (Mass.Super.Ct. July 26, 2004). While thatdecision may be instructive, I am not bound to follow it. See,e.g., Comm'r of Internal Revenue v. Estate of Bosch,387 U.S. 456, 465 (1967) ("in diversity cases this Court has further heldthat while the decrees of `lower state courts' should be`attributed some weight . . . the decision (is) not controlling. . .' where the highest court of the State has not spoken on thepoint.") (alterations in original) (citations omitted).Therefore, I must make an independent determination of the issuepresented here.

6. Because I have resolved this issue in the plaintiffs'favor, I need not address other arguments the plaintiffs haveadvanced, such as whether the doctrine of class action tollingapplies to their claims against Indevus.

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