Gagliardi v. American Home Products Corp., 29 F. Supp. 2d 972 (E.D. Wis. 1998)

*973 Frank R. Terschan, Terschan, Steinle & Ness, Milwaukee, WI, Arthur W. Aufmann, Edward T. Joyce, Joyce & Associates, Chicago, IL, Eugene W. Beeler, Jr., Andrew H. Haber, Beeler Schad & Diamond, Chicago, IL, for plaintiff Stanley Gagliardi.

Todd Weir, Jennifer A. Slater Carlson, Otjen, Van Ert, Stangle, Lieb & Weir, Milwaukee, WI, for defendant American Home Products Corp. and A.H. Robins Co., Inc.

Mark W. Lee, Maslon, Edelman, Borman & Brand, Minneapolis, MN, William Lay, Atiba Adams, Skadden, Arps, Slate, Meagher & Flom, New York City, for defendant Interneuron Pharmaceuticals, Inc.

CURRAN, District Judge.

Defendant American Home Products Corporation (now merged with Defendant A.H. Robins Company, Incorporated) removed this action from the Circuit Court of Kenosha County (Wisconsin) with the consent of co-Defendant Interneuron Pharmaceuticals, Inc. on the ground that this court has diversity jurisdiction over the subject matter. See 28 U.S.C. § 1332. Plaintiff Stanley Gagliardi is suing the Defendant on behalf of himself and all other Wisconsin residents who have taken the diet drugs fenfluramine or dexfenfluramine and have suffered or will suffer economic loss.^[1] They are claiming relief for *974 injuries incurred as a result of the Defendants' alleged negligent misrepresentation, strict responsibility misrepresentation, and intentional misrepresentation. Gagliardi and the putative class are seeking a judgment declaring that:

i. A plaintiff may recover damages for the costs of medical examinations and tests when, as a result of another's conduct, medical testing is, to a reasonable degree of medical certainty, necessary in order to diagnose properly the signs of a disease, although the person seeking to recover such costs has not been physically injured;

ii. Defendants are liable to Gagliardi and the class for the costs of medical examinations and tests recommended by the U.S. Department of Health and Human Services.

iii. The prosecution of an action to require the defendants to pay the cost of such medical examinations and tests for Gagliardi and the class would not bar a subsequent action by Gagliardi or any members of the class against defendants for physical injuries arising from ingestion of fenfluramine or dexfenfluramine, should such physical injuries be diagnosed in the future.

Complaint at ¶ B. Although they claim that they want to recover the cost of the diet drugs, the cost of immediate medical screening recommended by the federal government, and lost income for undergoing screening procedures, the Plaintiff and putative class are not seeking damages. Rather, they explain that: "Plaintiff seeks a declaration for himself and the class that this action for the damages they have sustained may be pursued without losing their rights to maintain another action, if at some time in the future they suffer physical injuries as a result of taking defendants' drugs." Motion for Remand and Brief in Response to Court's October 21, 1998 Order at 2.

After removal and because it appeared that the Plaintiffs are asking for an advisory opinion, the court ordered the parties to brief the issue of whether this matter is justiciable. Instead, the Plaintiffs filed a motion asking the court to remand this case to state court because the Defendants cannot prove that the amount in controversy is in excess of $75,000, and that, therefore, this court lacks diversity jurisdiction.

Having reviewed the Complaint, the court cannot find to a legal certainty that the amount in controversy or value of the declaratory judgment to the named Plaintiff Stanley Gagliardi does not exceed $75,000.^[2] The Complaint contains no allegations concerning the cost of the drugs, the cost of medical testing already completed, the cost of medical testing in the future, or the value of lost wages. Therefore, the court has no basis for finding that the aggregate amount of these items would be $75,000 or less. Moreover, in his brief, Gagliardi says he "may move for additional relief, such as damages, if he is granted the declarations he seeks." Motion for Remand and Brief in Response to Court's October 31, 1998 Order at 6. Due to these factors, the motion to remand because the Plaintiff does not meet the amount in controversy will be denied.

This still leaves an issue as to whether this court has the jurisdiction to grant the relief the Plaintiff is seeking. The Plaintiff is asking the court to declare that the doctrines of res judicata and collateral estoppel will not bar a future action. In other words, can a federal court grant a declaration precluding a second court from applying the doctrines of claim or issue preclusion? The answer is "no." It is well-established that in federal courts the court rendering the first judgment does not have the power to determine that judgment's effect; the second court is entitled to make its own decision. See Midway Motor Lodge of Elk Grove v. Innkeepers' Telemanagement & Equipment Corporation, 54 F.3d 406, 409 (7th Cir. 1995); Teamsters Local 282 Pension Trust Fund v. Angelos, 762 F.2d 522, 525-26 (7th Cir.1985). Because this is the type of advisory opinion the Plaintiff is seeking in *975 this action, the court must remand this case for lack of jurisdiction. See Pettibone Corporation v. Easley, 935 F.2d 120, 123 (7th Cir.1991).

For these reasons, the court ORDERS that the "Plaintiff's Motion for Remand" (filed November 3, 1998) IS DENIED. The court will not remand this case on the ground that the Plaintiff is not seeking the jurisdictional amount.

IT IS FURTHER ORDERED that this action is remanded to the Circuit Court of Kenosha County for lack of subject matter jurisdiction as explained above.

IT IS FURTHER ORDERED that the Clerk of Court shall send a certified order of remand to the Clerk of the Circuit Court of Kenosha County. The state court may thereupon proceed with this case. See 28 U.S.C. § 1447(c).

[1] The proposed class has not yet been certified. Even if it had, the damages sought by each class member could not be aggregated in order to meet the jurisdictional amount. The named plaintiff must satisfy the jurisdictional minimum. See In re Brand Name Prescription Drugs Antitrust Litigation, 123 F.3d 599, 607 (7th Cir.1997), cert. denied sub. nom, Abbott Laboratories v. Huggins, ___ U.S. ___, 118 S. Ct. 1178, 140 L. Ed. 2d 186 (1998), and cert. denied sub nom. Ameri-Source Corporation v. HJB, Inc., ___ U.S. ___, 118 S. Ct. 1336, 140 L. Ed. 2d 498 (1998), and cert. denied sub nom. Abbott Laboratories v. HJB, Inc., ___ U.S. ___, 118 S. Ct. 1337, ___ L.Ed.2d ___ (1998).

[2] The court must be satisfied to a legal certainty that the Plaintiff's claim is less than the jurisdictional amount. See Gardynski-Leschuck v. Ford Motor Company, 142 F.3d 955, 957 (7th Cir. 1998).