RICHMOND, Va. – A federal appeals court has sent a case back to the Circuit Court of Wayne County after dismissing a jurisdictional appeal of the lawsuit, which alleges Zoloft caused the plaintiffs’ birth defects when taken by their pregnant mothers.

Retired U.S. Supreme Court Justice Sandra Day O’Connor, sitting by designation, and judges Henry F. Floyd and Stephanie D. Thacker heard the appeal to the U.S. Court of Appeals for the Fourth Circuit. Floyd wrote the July 12 opinion, in which O’Connor and Thacker joined.

The action was commenced by the filing of a single complaint by 19 plaintiff families in the Circuit Court of Wayne County. The defendants are Pfizer, Inc., Roerig, a division of Pfizer, and Greenstone, LLC.

The families allege that the prescription anti-depressant sertraline hydrochloride, branded as Zoloft, caused birth defects to each child born of a pregnancy where the mother ingested Zoloft.

Pursuant to West Virginia Rule of Civil Procedure 3(a), each family was “docketed” separately, resulting in 19 distinct actions. However, the families were not required to file separate complaints. The pharmaceutical companies interpreted this rule to mean that there were 19 distinct actions and, based on this reading of the rule, because 18 of the 19 families were completely diverse from all of the defendants, the companies removed all but the non-diverse Dropp family to the U.S. District Court for the Southern District of West Virginia on Aug. 7, 2012.

On Aug. 13, 2012, the 18 removed families filed individual motions to remand in the district court. The companies argued that removal was proper because of the diversity of the parties and the families argued that the action is a single case and that the families were only treated separately for administrative purposes.

The district court concluded that the action was one civil action for purposes of diversity jurisdiction. The companies had alternatively argued that the Dropp family had been “fraudulently joined” and the district court rejected this argument as well.

After the district court concluded that no basis for subject matter jurisdiction existed, the court granted the families’ motions to remand to state court, and the pharmaceutical companies appealed the remand order.

“We must first address whether this court has the ability to review the district court’s remand order. The Pharmaceutical Companies face an insurmountable barrier because ‘an order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise,’ (28 U.S.C. § 1447(d)), regardless of ‘whether or not that order might be deemed erroneous by us,’” Floyd wrote, citing statutory and case law.

“Despite this general statutory bar, the Pharmaceutical Companies argue that an exception to § 1447(d) applies and allows review of this case. The families disagree, arguing that the remand order rested on the district court’s conclusion that it lacked subject matter jurisdiction.

After an extensive analysis of the applicable law, Floyd wrote, “The Pharmaceutical Companies argue that under Thermtron this Court can consider the remand order because the action here was eighteen separate lawsuits and the district court’s decision to consider the citizenship of the Dropps - 'non-parties' - falls outside the permissible grounds for remand and exceeds the court’s authority.

“As previously noted, this Court has the power to correct a district court that has not merely erred in applying the requisite provision for remand but has remanded a case on grounds not specified in the statute and not touching the propriety of the removal. However, if the district court issued the remand order on the ground that it lacked subject matter jurisdiction, we have no authority to review the order. In fact we need not delve into whether the district court was correct to hold that it lacked subject matter jurisdiction over the removed action.

“The district court’s remand order in this case quite obviously falls within the ambit of § 1447(c)’s requirement of remand in the absence of subject matter jurisdiction. The district court remanded the case after explicitly concluding that the Pharmaceutical Companies had not established subject matter jurisdiction.

“Because the Pharmaceutical Companies have failed to establish that an exception should apply here, and because the plain language of § 1447(c) bars our review of this case, we conclude that we do not have the authority to review the remand order, and we end our analysis here.”

In the lawsuits, the mother plaintiffs claim they took Zoloft as prescribed by treating physicians while pregnant.

The minor plaintiffs were born suffering from congenital defects, such as atrial septal defect; multiple holes in the heart and/or began to suffer from persistent pulmonary hypertension of the newborn; neural tube defects; craniofacial defects; and other adverse malformations, according to the suits.

The plaintiffs claim the defects and injuries suffered were a direct result of the mothers’ ingestion of Zoloft during pregnancy in a manner and dosage recommended by the defendants and prescribed by the plaintiffs’ doctors.

Pfizer knew or should have known of the that Zoloft caused serious birth defects, according to the suits.

The plaintiffs claim the drug is defective; dangerous to human health; unfit and unsuitable to be marketed and sold; and lacks the proper warnings as to the dangers associated with its use.

The plaintiffs are seeking compensatory and punitive damages with pre- and post-judgment interest. They are being represented by Paul T. Farrell Jr., Bert Ketchum, Jason A. Itkin and Noah M. Wexler.

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