Case: 1:20-cv-00869-TSB Doc #: 1 Filed: 10/30/20 Page: 1 of 9 PAGEID #: 1
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`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF OHIO
`WESTERN DIVISION
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`PATRICIA R. ZUERCHER
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` Plaintiff,
`Civil Action No.: ___________
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`v.
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`ASTRAZENECA
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`PHARMACEUTICALS LP, et al., :
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`Defendants.
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`NOTICE OF REMOVAL
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`Defendants AstraZeneca Pharmaceuticals LP, AstraZeneca LP1 (“AstraZeneca”), and
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`Merck Sharp & Dohme Corporation, incorrectly named as Merck & Co., Inc. d/b/a Merck Sharp
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`& Dohme Corporation (“Merck”) (collectively, the “Removing Defendants”) under 28 U.S.C. §§
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`1332, 1441, and 1446, hereby file their Notice of Removal of this case from the Hamilton
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`County, Ohio Court of Common Pleas, to the United States District Court for the Southern
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`District of Ohio, Western Division. As grounds for removal, the Removing Defendants state:
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`INTRODUCTION
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`1.
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`On May 31, 2019, Plaintiff filed a Complaint (“Complaint”) in the Hamilton
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`County, Ohio Court of Common Pleas, in an action entitled Patricia R. Zuercher v. AstraZeneca
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`Pharmaceuticals LP, et al., Case No. A 1902684. A copy of the state court pleadings, including
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`the Complaint, is attached hereto as Exhibit A.
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`2.
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`Plaintiff seeks damages as a result of alleged conduct by Defendants arising from
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`the alleged use of certain prescription and over the counter medications, known as proton pump
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`As set forth herein, Defendant AstraZeneca LP dissolved as a legal entity on December 31, 2018.
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`20-cv-869
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`inhibitors (“PPIs”). See Complaint ¶¶ 1-5. More specifically, the Complaint alleges that
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`Plaintiff took the PPI product(s) Nexium and Prilosec OTC “from at least approximately January
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`2008 to December 2015”, and that “as a direct and proximate result of Plaintiff’s use of the
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`PPI(s), Nexium and Prilosec OTC, Plaintiff has suffered and was treated for Acute Kidney Injury
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`(“AKI”) since March 2018 and Chronic Kidney Disease (“CKD”) since March 2018 with related
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`sequelae.” See Complaint ¶ 7(a)-(b).
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`3.
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`Plaintiff asserts a variety of theories of liability, including Strict Product Liability
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`(Count I), Strict Product Liability – Design Defect (Count II), Strict Product Liability – Failure
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`to Warn (Count III), Negligence (Count IV), Negligence Per Se (Count V), Negligence – Failure
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`to Test (Count VI), Strict Products Liability Due to Non Conformance With Representations
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`Pursuant to R.C. 2307.77 (Count VII), Breach of Express Warranty (Count VIII), Breach of
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`Implied Warranty (Count IX), Negligent Misrepresentation (Count X), Fraud and Fraudulent
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`Misrepresentation (Count XI), Gross Negligence (Count XII), Fraudulent Concealment (Count
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`XIII), and Violation of Consumer Protection Laws And Deceptive Trade Practices (Count XIV).
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`All Counts of the Complaint are asserted against all Defendants, and all Counts state that they
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`are asserted “pursuant to all laws that may apply according to choice of law principles, including
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`the law of the Plaintiff’s resident State.” See, e.g., Complaint, ¶ 135.
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`THE NOTICE OF REMOVAL IS TIMELY
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`4.
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`Plaintiff filed her Complaint on May 31, 2019. See Complaint. Defendants The
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`Procter & Gamble Company and The Procter & Gamble Manufacturing Company (the “Procter
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`& Gamble Defendants”) were dismissed under Ohio Civil Rule 41(a) on October 9, 2020.
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`Accordingly, removal is timely because this action as stated by the Complaint was not removable
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`because the Procter & Gamble Defendants are citizens of the State of Ohio for diversity purposes
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`in that they are incorporated in the state of Ohio and have their principal places of business in the
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`state of Ohio, and this Notice of Removal is being filed within thirty (30) days of receipt by the
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`Removing Defendants of the Notice of Dismissal of the Procter & Gamble Defendants, from
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`which it may first be ascertained that the case is one which has become removable. See 28
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`U.S.C. § 1446(b)(2). Although this removal is filed more than a year after the commencement of
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`the action, the time limit in 28 U.S.C. § 1446(c) is waivable and is not jurisdictional. See Music
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`v. Arrowood Indem. Co., 632 F.3d 284, 286-7 (6th Cir. 2011). Plaintiff has agreed not to assert
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`that removal of this case is untimely, and accordingly, the one-year limitation on removal has
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`been waived, and therefore this case has timely been removed. No previous application for
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`removal has been made.
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`BASIS FOR SUBJECT-MATTER JURISDICTION IN THIS COURT
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`The Requisite Diversity of Citizenship is Satisfied.
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`5.
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`As explained in further detail below, this Court has original jurisdiction under 28
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`U.S.C. § 1332(a) because complete diversity of citizenship between Plaintiff and each of the
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`remaining Defendants exists, and the amount in controversy exceeds $75,000.00, exclusive of
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`interest and costs.
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`6.
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`Plaintiff is, and at the time of the filing of the Complaint was, a citizen of Ohio.
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`See Complaint, ¶ 7.
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`7.
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`Defendant AstraZeneca Pharmaceuticals LP is, and at the time of the filing of this
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`action was, a Delaware limited partnership with its principal place of business in Delaware.
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`Partnerships assume the citizenship of their general and limited partners. See Carden v. Arkoma
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`Assoc., 494 U.S. 185, 195 (U.S. 1990) (partnerships assume the citizenship of their general and
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`limited partners). AstraZeneca Pharmaceuticals LP’s general partner is, and at the time of the
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`filing of this action was, AstraZeneca AB, a Swedish corporation with its principal place of
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`business in Sweden. AstraZeneca Pharmaceuticals LP’s sole limited partner is, and at the time
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`of the filing of this action was, Zeneca Inc., a Delaware corporation with its principal place of
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`business in Delaware. Thus, for purposes of determining diversity jurisdiction in this action,
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`AstraZeneca Pharmaceuticals LP is deemed to be a citizen of Delaware and Sweden.
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`8.
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` Defendant AstraZeneca LP dissolved as a legal entity on December 31, 2018.
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`However, previously, AstraZeneca LP was a Delaware limited partnership with its sole partner
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`as AstraZeneca Pharmaceuticals LP. Thus, its prior citizenship is irrelevant for purposes of this
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`removal. In any event, AstraZeneca LP was deemed to be a citizen of Delaware and Sweden
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`prior to its dissolution.
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`9.
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`Defendant Merck Sharp & Dohme Corporation, incorrectly named as Merck &
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`Co., Inc. d/b/a Merck, Sharp & Dohme Corporation, is, and at the time of the filing of this action
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`was, a New Jersey corporation with its principal place of business located in New Jersey. It
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`therefore is a citizen of New Jersey under 28 U.S.C. § 1332(c)(1).
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`10.
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`None of the properly joined Defendants is a citizen of Ohio, the state where
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`Plaintiff is a citizen and the forum state. Complete diversity of citizenship therefore exists
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`between Plaintiff and the non-fraudulently joined Defendants under 28 U.S.C. § 1332(a).
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`Further, no properly joined Defendant is a citizen of Ohio, the forum state, and therefore 28
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`U.S.C. § 1441(b)(2) does not bar removal.
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`The Requisite Amount in Controversy Is Satisfied.
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`11.
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`Plaintiff does not allege a specific amount in controversy in her Complaint.
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`However, in Paragraph (a) of her demand for relief, she seeks an award of compensatory
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`damages “in excess of $75,000” for items such as “pain, suffering, discomfort, physical
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`impairment, emotional distress, loss of enjoyment of life, loss of consortium, wrongful death and
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`other noneconomic damages.” Complaint, prayer for relief,¶ a. The Complaint thus satisfies the
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`amount in controversy requirement based upon its demand for noneconomic damages alone. In
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`addition, Plaintiff seeks an award of economic damages in the form of unspecified medical
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`expenses, out of pocket expenses, lost earnings and other economic damages (Id., ¶ b), punitive
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`and/or exemplary damages (Id., ¶ c), as well as attorney’s fees (Id., p. 69 ¶ f). On its face,
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`therefore, the amount in controversy as to Plaintiff exceeds $75,000, exclusive of interest and
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`costs. See Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. 81, 89 (2014) (“a defendant’s
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`notice of removal need include only a plausible allegation that the amount in controversy
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`exceeds the jurisdictional threshold”); see also Ross v. First Family Fin. Servs., Inc., No.
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`2:01CV218-P-B, 2002 WL 31059582, at *8 (N.D. Miss. Aug. 29, 2002) (“unspecified claims for
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`punitive damage sufficiently serve to bring the amount in controversy over the requisite
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`jurisdictional threshold set out in 28 U.S.C. § 1332”).
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`12. Moreover, Plaintiff alleges that “Plaintiff has suffered and was treated for Acute
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`Kidney Injury (“AKI”) since March 2018 and Chronic Kidney Disease (“CKD”) since March
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`2018 with related sequelae”. See Complaint ¶ 7(b).
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`13.
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`In light of the severity of the allegations, the preponderance of the evidence
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`demonstrates there is a reasonable possibility that the amount in controversy exceeds $75,000,
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`exclusive of interest and costs.
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`14.
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`In addition, related complaints alleging similar injuries have been filed in federal
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`court and seek in excess of the jurisdictional minimum for federal diversity jurisdiction. See,
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`e.g., Wilkerson v. AstraZeneca Pharmaceuticals LP et al., 2:17-cv-00215-CCC-MF (D.N.J.,
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`January 11, 2017) at ¶¶ 17, 58 (alleging “Renal/Kidney Failure” and that “the amount in
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`controversy exceeds $75,000 exclusive of interest and costs”). As noted above, these matters
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`have been transferred to the In re Proton-Pump Inhibitor Products Liability Litigation (No. II),
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`MDL 2789 (D.N.J.), MDL proceeding and this case, as a related action, will be tagged and
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`transferred accordingly as a “tag along” action. Accordingly, the jurisdictional amount as
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`required for original jurisdiction in this Court under 28 U.S.C. § 1332(b) is satisfied.
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`PROCEDURAL REQUIREMENTS
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`15.
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`The Removing Defendants will give written notice of the filing of this Notice of
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`Removal to Plaintiff and will file a copy of this Notice with the Hamilton County Clerk of Court,
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`as required by 28 U.S.C. § 1446(d).
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`16.
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`17.
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`The remaining Defendants have consented to removal of this action.
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`The Procter & Gamble Defendants have been dismissed and therefore their
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`consent to removal is not required.
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`18.
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`The United States District Court for the Southern District of Ohio, Western
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`Division, is the district court for the United States for the district and division embracing the
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`place where the action is pending and has original jurisdiction over this action pursuant to 28
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`U.S.C. § 1332. Pursuant to Local Rule 82.1(b), the Court sitting in Cincinnati is the appropriate
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`venue.
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`19.
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`If any question arises as to the propriety of the removal of this action, the
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`Removing Defendants request the opportunity to brief any disputed issues and to present oral
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`argument in support of their position that this action is properly removable.
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`20.
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`Nothing in this Notice of Removal shall be interpreted as a waiver or
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`relinquishment of the Removing Defendants’ right to assert any defense or affirmative matter,
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`including, without limitation, the defenses of: (a) lack of jurisdiction over the person;
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`(b) improper venue; (c) insufficiency of process; (d) insufficiency of service of process;
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`(e) improper joinder of claims and/or parties; (f) failure to state a claim; (g) failure to join an
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`indispensable party(ies); (h) lack of standing; or (i) any other procedural or substantive defense
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`available under state or federal law.
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`21.
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`The Removing Defendants reserve the right to amend or supplement this Notice
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`of Removal.
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`WHEREFORE, the Removing Defendants respectfully request that this cause be
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`removed from the Hamilton County Court of Common Pleas to the United States District Court
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`for the Southern District of Ohio, Western Division, pursuant to 28 U.S.C. §§ 1441 and 1446,
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`and that this Court grant all other appropriate relief.
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`Respectfully submitted,
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`ICE MILLER LLP
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`/s/ Daniel Anderson
`Daniel M. Anderson (0067041)
`Trial Attorney
`250 West Street, Suite 700
`Columbus, OH 43215
`P: (614) 462-2700
`F: (614) 462-5135
`Daniel.Anderson@icemiller.com
`Counsel for the Removing Defendants
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`OF COUNSEL:
`Lydia Reback (0097766)
`Ice Miller LLP
`250 West Street
`Columbus, Ohio 43215
`Tel: (614) 462-2700
`Fax: (614) 462-5135
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`Lydia.Reback@icemiller.com
`Counsel for the Removing Defendants
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`Case: 1:20-cv-00869-TSB Doc #: 1 Filed: 10/30/20 Page: 9 of 9 PAGEID #: 9
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`CERTIFICATE OF SERVICE
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`I HEREBY CERTIFY that on October 30, 2020, I electronically filed the foregoing
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`with the Clerk of Court by using the CM/ECF system which will send a notice of electronic
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`filing to all CM/ECF participants. I further certify that I mailed the foregoing document and the
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`notice of electronic filing by first-class mail to:
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`John D. Holschuh, Jr.
`Brian P. O’Connor
`John D. Holschuh III
`SANTEN & HUGHES
`600 Vine Street, Suite 2700
`Cincinnati, Ohio 45202
`Counsel for Plaintiff
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`/s/ Daniel Anderson
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`I\15760484.1
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