                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                      F I L E D
          UNITED STATES COURT OF APPEALS
                                                                      September 9, 2003
                   FIFTH CIRCUIT
                                                                 Charles R. Fulbruge III
                         ____________                                    Clerk
                         No. 02-60736
                         ____________


BRYAN D COLLINS, as parent and next friend of Zachary W
Collins; ALLYSON M COLLINS, as parent and next friend of
Zachary W Collins; FREDDIE M ANDERSON, as parent and next
friend of Robert Thomas-Anderson; GEORGIA M ANDERSON, as
parent and next friend of Robert Thomas-Anderson; HERMAN R
BERNARD, as parent and next friend of Reginald L Bernard; ET AL,


                             Plaintiffs-Appellants,

versus


AMERICAN HOME PRODUCTS CORPORATION, doing business
as Wyeth Laboratories Inc; WYETH LEDERLE; WYETHER
LEDERLE; WYETHER LEDERLE VACCINES AND LEDERLE
LABORATORIES; ABBOTT LABORATORIES; AMERICAN
INTERNATIONAL CHEMICAL INC; AVENTIS PASTEUR INC,
Individually and as Successor in Interest to Connaught Laboratories
Inc; PASTEUR MERIEUX CONNAUGHT INC; B F ASCHER &
COMPANY INC; BAXTER INTERNATIONAL INC, Individually
and as Successor in Interest to North American Vaccine Inc; BAYER
CORPORATION; BIOPORT CORPORATION INC; BRISTOL-
MYERS SQUIBB AND COMPANY; EVANS MEDICAL LTD;
MERCK AND COMPANY INC; RPK PHARMACEUTICALS;
DOLDER; ELI LILLY & COMPANY; SMITHKLINE BEECHAM
CORPORATION; LISA STONE, M D, individually and as Successor
in Interest to Children’s Medical Group, PA; BERT BRADFORD,
MD; GULF COAST PEDIATRIC CLINIC; BYRON’S DISCOUNT
DRUGS; JEFF COURT, MD, individually and as Successor in
Interest to Children’s Medical Group, PA; WALTER E DAWKINS,
MD; LOUISA LAWSON, MD; SARTIN’S DISCOUNT DRUGS
INC; BRIAN STRETCH, MD; JULIAN LEE OWEN, MD;
VILLAGE PHARMACY; JOHN DOES; CHILDREN’S MEDICAL
GROUP PA,
                             Defendants-Appellees.

______________________________________________________


                        Consolidated With
                         No. 02-60764

JOHN W STEWART, III; ANNETTE C STEWART; BRYAN D
COLLINS; ALLYSON M COLLINS; HERMAN R BERNARD, JR;
CAROLA H BERNARD; LARRY D BLACKWELL; MELISSA L
MCGREW; JULES J COUSIN, JR; BEVERLY L COUSIN; JOHN
A GAMBERI; CONNIE J GAMBERI; MARK A KLINEDINST;
LAURIE E KLINEDINST; TERRI M PITTS; TRACY L PITTS;
KEVIN T SAMUEL; VICTORIA SAMUEL; DAVID G
UNDERWOOD; LAUREN UNDERWOOD; JEREMY WILLIAMS;
SHAWANDA R WILLIAMS,


                             Plaintiff-Appellants,

versus

AMERICAN HOME PRODUCTS CORPORATION, doing business
as Wyeth; WYETH LABORATORIES; WYETH-AYERST;
WYETH-AYERST LABORATORIES; WYETH LEDERLE;
WYTHER LEDERLE; WYETHER LEDERLE VACCINES AND
LEDERLE LABORATORIES; ABBOTT LABORATORIES INC;
AMERICAN INTERNATIONAL CHEMICAL INC; AVENTIS
PASTEUR INC, individually and as successor in interest to
Connaught Laboratories Inc; PASTEUR MERIEUX & PASTEUR
MERIEUX CONNAUGHT; B F ASCHER & COMPANY INC;
BAXTER INTERNATIONAL INC, individually and as successor in
interest to North American Vaccine Inc; BIOPORT CORPORATION
INC; EVANS MEDICAL LIMITED; DOLDER; ELI LILLY &
COMPANY; MERCK AND COMPANY INC; SMITHKLINE
BEECHAM CORPORATION; BERT BRADFORD, MD; GULF
COAST PEDIATRIC CLINIC; WALTER E DAWKINS, MD;
OWEN J LEE, MD; SARTIN’S DISCOUNT DRUGS INC; BRIAN
STRETCH, MD, doing business as The Street Clinic; VILLAGE
PHARMACY LLC; WYETH; JOHN DOES, 1-200, who are
individuals, proprietorships, corporations, or other entities whose
names and identities are otherwise unknown to the plaintiffs;


                               -2-
                  JEFFREY CROUT, MD; CHILDREN’S MEDICAL GROUP PA;
                  RPK PHARMACEUTICALS INC,


                                                 Defendants-Appellees.



                              Appeal from the United States District Court
                                For the Southern District of Mississippi



Before EMILIO M. GARZA and DENNIS, Circuit Judges, and DUPLANTIER*, District Judge.

EMILIO M. GARZA, Circuit Judge:

        The plaintiffs in two products liability actions, all of whom are Mississippi residents, appeal

the district court’s denial of their motions to remand and dismissal of their state law claims against

a variety of Mississippi resident and non-resident defendants.            Among the defendants are

manufacturers of certain childhood vaccines containing the preservative thimerosal, pharmacies who

dispensed those vaccines, and physicians who prescribed them.

        In Collins v. American Home Products Corporation, the plaintiffs brought claims on behalf

of their minor children seeking to recover for injuries allegedly suffered by the children as a result of

vaccinations containing thimerosal. In Stewart v. American Home Products Corporation, many of

the same plaintiffs brought claims on their own behalf to recover for expenses and other injuries they

allegedly incurred as the parents of injured children. The district court concluded that the Mississippi

defendants had been fraudulently joined and that the claims against the remaining defendants must

be dismissed because the plaintiffs had failed to comply with the National Childhood Vaccine Injury



        *
            Senior District Judge of the Eastern District of Louisiana, sitting by designation.

                                                    -3-
Act of 1986, 42 U.S.C. § 300aa-1 et seq.

        “[S]ubject-matter delineations must be policed by the courts on their own initiative even at

the highest level.” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). In a recent opinion,

this Court applied the following holding from the Third Circuit’s decision in Boyer v. Snap-On Tools

Corporation, 913 F.3d 108 (3d Cir. 1990):

                [W]here there are colorable claims or defenses asserted against or by
                diverse and non-diverse defendants alike, the court may not find that
                the non-diverse parties were fraudulently joined based on its view of
                the merits of those claims or defenses. Instead, that is a merits
                determination which must be made by the state court.

Smallwood v. Ill. Cent. R.R. Co., No. 02-60782, ___ F.3d ___, 2003 WL 21805636, at *3 (5th Cir.

Aug. 7, 2003) (quoting Boyer, 913 F.3d at 113) (alteration in original).

        Here, the defendants successfully convinced the district court to rule on a common defense

under the pretense of determining whether the Mississippi defendants had been fraudulently joined.

As we stated in Smallwood, “[t]his use of fraudulent joinder frustrates the overarching principle of

the well-pleaded complaint rule, that state courts are equally competent to decide federal defenses.”

Id. at *5; see also id. at *4 n.35 (citing Cheskiewicz ex rel. Cheskiewicz v. Aventis Pasteur, Inc., No.

02-3583, 2002 WL 1880524, at *3 (E.D. Pa. Aug. 15, 2002) (unpublished)).1

        Accordingly, we VACATE the dismissal of the plaintiffs’ claims and REMAND with


        1
          On appeal, the defendants argue that the district court’s fraudulent joinder determination in
Stewart was correct for the additional reaso n that the plaintiffs’ claims fail under Mississippi law.
Although it appears that Mississippi’s learned intermediary doctrine bars the plaintiffs’ claims against
the non-diverse pharmacy defendants, Moore ex rel. Moore v. Mem’l Hosp. of Gulfport, Miss., 825
So. 2d 658, 664-66 (Miss. 2002), this defense does not preclude the possibility of relief against the
other non-diverse defendants. Because the remaining defenses apply equally to the claims asserted
against the diverse and non-diverse defendants, those defenses cannot, under Smallwood, serve as the
basis for a finding of fraudulent joinder. Accordingly, we lack subject matter jurisdiction to address
the merits of the plaintiffs’ claims.

                                                  -4-
instructions that both cases be remanded to the state court from which they were removed.




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