Merrell Dow Pharmaceuticals v. Thompson, 478 U.S. 804 (1986)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

Syllabus

Respondent residents of Canada and respondent residents of Scotland filed separate complaints in an Ohio state court against petitioner Ohio corporation, the manufacturer and distributor of the drug Bendectin, alleging that children were born with deformities as a result of their mothers’ ingestion of the drug during pregnancy. Damages were sought on common law theories of negligence, breach of warranty, strict liability, fraud, and gross negligence, and also on the ground that the alleged "misbranding" of the drug in violation of the Federal Food, Drug, and Cosmetic Act (FDCA) represented a "rebuttable presumption" of negligence and the "proximate cause" of the injuries. Petitioner filed a petition for removal of the actions to Federal District Court, alleging that they were founded, in part, on a claim "arising under the laws of the United States." After removal, the cases were consolidated, and the Federal District Court denied respondents’ motion to remand to the state court and granted petitioner’s motion to dismiss on forum non conveniens grounds. The Court of Appeals reversed. Noting that the FDCA does not create or imply a private right of action, the court held that the causes of action did not arise under federal law, and therefore were improperly removed to federal court.

Held: A violation of a federal statute as an element of a state cause of action, when Congress has determined that there should be no private federal cause of action for the violation, does not state a claim "arising under the Constitution, laws, or treaties of the United States" within the meaning of 28 U.S.C. § 1331. Thus, here, determining the question of removal jurisdiction by reference to the "well-pleaded complaint," and assuming that there is no federal cause of action for FDCA violations, the cases were improperly removed to the Federal District Court. The assumed congressional determination to preclude federal private remedies for violations of the FDCA is tantamount to a congressional conclusion that a claimed violation of the statute as an element of a state cause of action is insufficiently "substantial" to confer federal question jurisdiction. The asserted federal interest in federal review and the novelty of the question whether the FDCA applies to sales in Canada and Scotland are not sufficient to give a state-based FDCA claim status as a jurisdiction-triggering federal question. 766 F.2d 1005, affirmed. Pp. 807-817.

STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL, REHNQUIST, and O’CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which WHITE, MARSHALL, and BLACKMUN, JJ., joined, post, p. 818.