Cueto claims Prizer improperly removed Zoloft suit to federal court

Steve Korris Jan. 26, 2012, 6:15am


EAST ST. LOUIS – Belleville lawyer Christopher Cueto claims drug maker Pfizer improperly removed to federal court a suit blaming depression medicine Zoloft for birth defects.

On Jan. 20, Cueto asked U.S. District Judge Michael Reagan to remand the suit to St. Clair County Circuit Court, where he filed it in December.

Cueto is a brother of St. Clair County Circuit Judge Lloyd Cueto.

Pfizer removed the suit on Jan. 11, alleging Cueto fraudulently joined plaintiffs to defeat federal jurisdiction.

Cueto answered that a doctrine of fraudulent misjoinder constituted improper expansion of the scope of federal court jurisdiction.

"Courts of this district, including this one, have consistently refused to adopt the fraudulent misjoinder doctrine that Pfizer urges here," he wrote.

"Neither the Seventh Circuit nor the United States Supreme Court has ever suggested that a misjoinder of legally viable and non fraudulent claims under state law is a permissible variant of fraudulent joinder.

"In fact, the long standing principle in the federal courts has been that joinder questions, particularly under state civil procedure rules, do not implicate federal subject matter jurisdiction.

"Any jurisdictional principle based upon highly discretionary, fact specific determinations about proper joinder of parties and claims, such as those proposed by Pfizer here, is unlikely to yield consistent and predictable results."

Also on Jan. 20, Pfizer informed Reagan that it asked the U.S. Judicial Panel on Multi District Litigation to consolidate at least 59 Zoloft suits, including the one Cueto filed.

Pfizer moved to stay proceedings until the panel reaches a decision.

"The explicit purpose of multi district litigation is to coordinate the pretrial management of actions sharing common issues in a just and efficient manner," Charles Joley of Belleville wrote for Pfizer.

On Jan. 24, he wrote that a federal court in New York stayed two Zoloft suits.

Cueto sued Pfizer on behalf of Mary and David Saville of Virginia, Terry and Todd Cochran of Ohio, Anita Kinslow and Wendell Houchens of Kentucky, Erica Woodley of New York, Antwynette Golliday of Lebanon, Illinois, and their children.

He wrote that Pfizer highlighted the safety of Zoloft while it knew of design and manufacturing defects and the risk of congenital defects.

The complaint showed two children were born in 2004, and the others in 2000, 2006 and 2008.

Joley claimed in his notice of removal that Cueto joined distinct claims from around the country in a transparent attempt to deprive Pfizer of a federal forum.

Joley then filed an answer to the complaint, writing that the claims might be barred by misuse of Zoloft, negligence of plaintiffs and third parties, or statutes of limitations.

He wrote that the claims are barred because Pfizer designed, manufactured and marketed Zoloft in accordance with the state of the art under federal regulations.

He wrote that the risks associated with Zoloft, if any, are outweighed by its utility.

He wrote that the First Amendment protects Pfizer's advertising and public statements.

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