DaWalt v. Purdue Pharma, L.P.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0054p.06

UNITED STATES COURTS OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
-
CHARLES DAWALT; SUE KING, on behalf of themselves

Plaintiffs-Appellees, -
and all others similarly situated,
-
-
No. 03-6441

,
v. >
-
-
-
PURDUE PHARMA, L.P.; PURDUE PHARMA, INC.; THE

-
PURDUE FREDERICK COMPANY; PURDUE

-
PHARMACEUTICALS L.P.; ABBOTT LABORATORIES;
-
ABBOTT LABORATORIES, INC., doing business as Abbott
-
Sales Marketing and Distributing Company; THE P.F.
LABORATORIES, INC.; PRA HOLDINGS, INC., -
Defendants-Appellants. -
-
N
Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 01-00253—David L. Bunning, District Judge.
Argued: October 29, 2004
Decided and Filed: February 7, 2005
Before: MERRITT, DAUGHTREY, and SUTTON, Circuit Judges.
_________________
COUNSEL
ARGUED: John M. Famularo, STITES & HARBISON, Lexington, Kentucky, for Appellants. David L.
Helmers, DAVID L. HELMERS & ASSOCIATES, Lexington, Kentucky, for Appellees. ON BRIEF:
John M. Famularo, Daniel E. Danford, STITES & HARBISON, Lexington, Kentucky, Susan Mohler Pope,
FROST, BROWN & TODD, Lexington, Kentucky, for Appellants. Elizabeth R. Overton, WILLIAM
GALLION & ASSOCIATES, Lexington, Kentucky, for Appellees.
_________________
OPINION
_________________
SUTTON, Circuit Judge. At issue in this appeal is Congress’s deceptively simple prohibition on
our review of district court remand orders, see 28 U.S.C. § 1447(d), and the voluminous body of case law
it has spawned. Because we interpret the district court’s opinion in this case as a remand for lack of subject
matter jurisdiction and not as a discretionary remand of pendent state-law claims, we conclude that

1
No. 03-6441 DaWalt, et al. v. Purdue Pharma, et al. Page 2

§ 1447(d) bars review of the remand order. That the district court based its remand on a post-removal state-
court decision and on post-removal briefing does not, contrary to the defendants’ argument, alter this
conclusion. Accordingly, we dismiss the appeal of the remand order for lack of appellate jurisdiction.
I.
On November 26, 2001, Charles DaWalt and Sue King (collectively “DaWalt”), both Kentucky
citizens and both users of the prescription pain medication OxyContin, sued Purdue Pharma, its subsidiaries
and its co-promoters (collectively “Purdue”) on behalf of a class of Kentuckians in state court, namely in
the Boone County Circuit Court. DaWalt alleged wrongful manufacture, marketing, promotion, sale and
distribution of OxyContin, a drug that Purdue developed, patented and, following approval by the Food and
Drug Administration in May of 1996, manufactured and promoted.
Broadly speaking, DaWalt’s claims fell into two categories, both of which he purported to premise
exclusively on state law. DaWalt first sought relief for injuries stemming from Purdue’s alleged negligence
and fraud. He then asserted a claim for “medical monitoring” under Kentucky law, asking that the court
require Purdue to notify people who have received OxyContin of its potential harm; provide for regular
medical examinations; create a registry of relevant information; fund further studies of the long-term effects
of the drug; and publish and disseminate information to doctors, the medical community in general and class
members. Along with premising the complaint on state law, DaWalt sought to ensure that the claims would
be heard in state court by stipulating that “the claim for damages of each and every Plaintiff and Class
Member is for less than $75,000,” the jurisdictional amount-in-controversy requirement for the diversity
jurisdiction statute, 28 U.S.C. § 1332. JA 39.
On December 19, 2001, Purdue removed the case to federal district court, claiming that the court
had diversity jurisdiction under 28 U.S.C. § 1332 because neither Purdue (nor its subsidiaries nor its co-
promoters) were incorporated or had their principal place of business in Kentucky. In the alternative,
Purdue invoked the complete-preemption doctrine, claiming that the district court had federal-question
jurisdiction under 28 U.S.C. § 1331 because OxyContin was “subject to comprehensive federal regulation.”
JA 24. In its notice of removal, Purdue further argued that DaWalt’s stipulation—which purported to limit
damages from “severe disabling” injuries relating to “addiction” and other adverse consequences including
“mental, and/or emotional harm, death, and loss of consortium,” JA 35, 50, 54—was ineffective under Sixth
Circuit law.
A flurry of motions followed, many of which concerned DaWalt’s attempt to rephrase his complaint
to avoid the implication that each class member would recover over $75,000. DaWalt, for example, moved
to delete all references to “death” and future medical care, remove one reference to “severe” medical
problems and exclude punitive damages and attorneys’ fees. JA 390, 395, 396, 414, 419. Based on these
changes, DaWalt filed a motion to remand on January 18, 2002. Purdue responded that, while it was
improper for a party to attempt to improve its chances of obtaining a remand through post-removal
pleadings, DaWalt’s claims still exceeded the jurisdictional amount-in-controversy requirement.
On March 5, 2002, DaWalt filed a reply memorandum urging the district court not to consider the
medical monitoring claims in calculating the amount in controversy because those claims may be invalid
under a case then pending before the Kentucky Supreme Court and ultimately decided as Wood v. Wyeth-
Ayerst Laboratories, 82 S.W.3d 849 (Ky. 2002). Purdue responded by stressing that district courts measure
the amount in controversy at the time of removal and that the post-removal discovery that a claim is invalid
does not deprive a court of jurisdiction even if the remaining claims do not exceed $75,000. Because Wood
was not settled law in Kentucky, Purdue further argued, it could not be said to a legal certainty that the
medical monitoring claims were invalid at the time of removal. On August 22, 2002, the Kentucky Supreme
Court decided Wood, holding that medical monitoring claims are invalid under Kentucky law absent proof
of present physical injury. See 82 S.W.3d at 855. The following month, the district court struck a named
No. 03-6441 DaWalt, et al. v. Purdue Pharma, et al. Page 3

defendant, Partners Against Pain, from the complaint because that “defendant” was a website established
by Purdue and not a corporate entity or an entity capable of being sued.
A year later, on September 30, 2003, the district court remanded the case for lack of subject matter
jurisdiction. The district court first noted that DaWalt’s damage stipulation was “of no legally binding
consequence and therefore . . . insufficient to warrant remand.” D. Ct. Op. at 9. Yet even without the
stipulation, the court reasoned, DaWalt’s claims did not suffice to meet the jurisdictional amount-in-
controversy requirement because Wood had “recently [ ] determined that [medical monitoring] is not a
legally recognized cause of action under Kentucky law.” Id. at 10. Because Wood precluded medical
monitoring claims, the court continued, Purdue had failed to show under Zahn v. International Paper Co.,
414 U.S. 291 (1973), that the “minimally injured class member” would meet the jurisdictional amount-in-
controversy requirement. D. Ct. Op. at 15. The court used this reasoning both to grant Purdue’s motion to
dismiss the medical monitoring claims and to declare that it had no diversity jurisdiction over the entire
case.
The district court next addressed the possibility that Purdue could invoke federal-question
jurisdiction under § 1331. After reviewing DaWalt’s complaint, the court concluded that the complaint
“raise[d] Kentucky state law claims only, that these claims can be decided by looking solely to state law,
and that they are not preempted by federal law.” Id. at 23.
Lastly, the district court refused to certify the case for interlocutory appeal. Purdue’s request for
certification, the court stated, “arises from the realization that this Court has concluded that the requisite
amount in controversy for all putative class members has not been shown, and therefore that this Court lacks
subject matter jurisdiction over these proceedings.” Id. at 24. Citing 28 U.S.C. § 1447(d), the court
observed that circuit courts typically lack jurisdiction to review such remand orders.
II.
Appeals in which both parties agree that the lower court erred but for which no appellate relief may
be obtained are not an everyday occurrence in the courts of appeal. Today, however, that is what the
pertinent federal statute requires us to do.
A year after the district court issued its remand order and while Purdue’s appeal before this court
was pending, our circuit addressed the meaning of 28 U.S.C. § 1367 in Olden v. LaFarge Corp., 383 F.3d
495 (6th Cir. 2004). We concluded that Congress’s 1990 adoption of § 1367 overruled the Supreme Court’s
opinion in Zahn and required district courts to aggregate the claims of class members to calculate the
amount in controversy for purposes of diversity jurisdiction, a ruling at odds with the district court’s
jurisdictional holding. While the Supreme Court has subsequently granted review of this issue, see Exxon
Corp. v. Allapattah Services, Inc., 125 S. Ct. 317 (2004), both parties agree that this panel is bound by the
Olden decision and that, in determining our appellate jurisdiction, we should assume that the district court
misconstrued § 1367. The parties also agree that the district court’s decision is a final one under 28 U.S.C.
§ 1291, which grants the courts of appeal jurisdiction to review “final decision[s]” of the district courts.
Yet the acknowledgment of a mistake made in a final decision by a district court, the parties further
agree, does not end our inquiry. Just as the mere occurrence of a harm does not open the door to a federal
forum, see, e.g., United States v. Bean, 537 U.S. 71 (2002), so too the mere fact that a district court
erred—no matter how obvious or clear the error—does not permit appellate review, absent a congressional
grant of authority, see, e.g., Swint v. Chambers County Comm’n, 514 U.S. 35 (1995). See generally Sheldon
v. Sill, 49 U.S. 441, 449 (1850) (“Courts created by statute can have no jurisdiction but such as the statute
confers.”).
No. 03-6441 DaWalt, et al. v. Purdue Pharma, et al. Page 4

A.
While § 1291 empowers us to review final decisions of the district court, § 1447(d) divests us of
some of that authority in the context of remand orders. Except for remand orders under 28 U.S.C. § 1443
(which relates to civil rights cases and which is not relevant to this appeal), § 1447(d) provides that:
An order remanding a case to the State court from which it was removed is not reviewable
on appeal or otherwise.
The language of the provision is not only broad but venerable as well. The present codification dates back
to a comparable federal rule that has existed since 1887 and, with a short break, even before then. See, e.g.,
In re Pennsylvania Co., 137 U.S. 451, 453–54 (1890); Gay v. Ruff, 292 U.S. 25, 28–29 (1934) (Brandeis,
J.) (and cases cited).
Things are not as straightforward as they appear, however. Despite the statute’s seemingly
unequivocal language barring review of (non-§ 1443) remand orders, the Supreme Court has held that the
provision is not that simple. It must be read in conjunction with § 1447(c), which in relevant part states:
A motion to remand the case on the basis of any defect other than lack of subject matter
jurisdiction must be made within 30 days after the filing of the notice of removal under
section 1446(a). If at any time before final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded.
28 U.S.C. § 1447(c).
According to Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336 (1976), § 1447(d) “and
§ 1447(c) must be construed together,” so that “only remand orders issued under § 1447(c) and invoking
the grounds specified therein—that removal was improvident and without jurisdiction—are immune from
review under § 1447(d).” Id. at 345–46 (quoting the “improvident and without jurisdiction” language of
a previous version of § 1447(c)). Section 1447(d), the Court concluded, will bar appellate review save when
a district court 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.” Id. at 352. In
applying this rule, Thermtron held that an appeals court had the authority to review a remand order premised
on the district court’s crowded docket (and nothing else), an explanation that had nothing to do with the
propriety of the removal or the court’s jurisdiction. See id. at 339.
Two decisions of the Court since Thermtron help to illustrate when remand orders may be reviewed
and when they may not be. In Things Remembered, Inc. v. Petrarca, 516 U.S. 124 (1995), the Court held
that § 1447(d) barred appellate review of a district court’s remand order on grounds of untimely removal,
regardless of whether the action was removed under 28 U.S.C. § 1441(a) (the general removal statute) or
28 U.S.C. § 1452 (the bankruptcy removal statute). “Congress,” the court noted, “has placed broad
restrictions on the power of federal appellate courts to review district court orders remanding removed cases
to state court.” Things Remembered, 516 U.S. at 127. Section 1447(d) thus applies “not only to remand
orders made in suits removed under the general removal statute, but to orders of remand made in cases
removed under any other statutes, as well.” Id. at 128 (quoting United States v. Rice, 327 U.S. 742, 752
(1946)) (brackets omitted).
The following Court Term, in Quackenbush v. Allstate Insurance Co., 517 U.S. 706 (1996), the
Court held that § 1447(d) did not bar appellate review of an abstention-based remand order. The Court
reiterated the Thermtron rule and concluded that an “abstention-based remand order does not fall into either
category of remand order described in § 1447(c), as it is not based on lack of subject matter jurisdiction or
defects in removal procedure.” Id. at 712.
No. 03-6441 DaWalt, et al. v. Purdue Pharma, et al. Page 5

A third decision, Carnegie-Mellon University v. Cohill, 484 U.S. 343 (1988), bears tangentially on
our resolution of this case as well—although Cohill is explicitly not about our appellate jurisdiction under
§ 1447(d) but rather about a district court’s remand power under § 1447(c), see Things Remembered, 516
U.S. at 130 (Kennedy and Ginsburg, JJ., concurring) (“We did not find it necessary [in Cohill] to decide
whether subsection (d) would bar review of a remand . . . for we affirmed the denial of mandamus by the
Court of Appeals.”). In Cohill, the Court considered whether “a federal district court has discretion under
the doctrine of pendent jurisdiction to remand a properly removed case to state court when all federal-law
claims in the action have been eliminated and only pendent state-law claims remain.” 484 U.S. at 345. The
Court concluded that a district court did possess such authority even though, at the time of the decision, the
versions of the two remand statutes did not permit district courts to remand pendent state-law claims. See
28 U.S.C. § 1447(c) (1986) (requiring district courts to remand any case that “was removed improvidently
and without jurisdiction”); 28 U.S.C. § 1441(c) (1986) (permitting district courts to remand any “otherwise
non-removable” claim that was “separate and independent” of the claim providing the basis for removal of
the case). Nevertheless, “the pendent jurisdiction doctrine in [United Mine Workers v. Gibbs, 383 U.S. 715
(1966)],” the Court maintained, “strongly supports the conclusion that when a district court may relinquish
jurisdiction over a removed case involving pendent claims, the court has discretion to remand the case to
state court.” Cohill, 484 U.S. at 351.
As Things Remembered suggests, the Court’s cases should not be read to permit limitless review of
all remand orders. Throughout, the Court has stressed that “when a remand has been ordered” because “the
case was removed improvidently and without jurisdiction,” § 1447(d) “unmistakably commands that the
order ‘remanding a case to the State court from which it was removed is not reviewable on appeal or
otherwise.’” Gravitt v. Southwestern Bell Telephone Co., 430 U.S. 723, 723 (1977); see also Things
Remembered, 516 U.S. at 127–28 (“As long as a district court’s remand is based on a timely raised defect
in removal procedure or lack of subject-matter jurisdiction—the grounds for remand recognized by
§ 1447(c)—a court of appeals lacks jurisdiction to entertain an appeal of the remand order under
§ 1447(d).”); Briscoe v. Bell, 432 U.S. 404, 414 n.13 (1977) (“Where the order is based on one of the
enumerated grounds, review is unavailable no matter how plain the legal error in ordering the remand.”);
Thermtron, 423 U.S. at 343 (“If a trial judge purports to remand a case on the ground that it was removed
‘improvidently and without jurisdiction,’ his order is not subject to challenge in the court of appeals by
appeal, mandamus, or otherwise.”).
B.
In applying these precedents, our circuit has grouped the exceptions to § 1447(d)’s ban on appellate
review of remand orders into two general categories. One deals with remand orders “based on a substantive
decision on the merits of a collateral issue as opposed to just matters of jurisdiction.” Regis Assocs. v. Rank
Hotels (Mgmt.) Ltd., 894 F.2d 193, 194 (6th Cir. 1990). The other deals with remand orders in which “a
district court has jurisdiction at the time of removal, but jurisdiction is subsequently destroyed by later
events,” Letherer v. Alger Group, L.L.C., 328 F.3d 262, 265 (6th Cir. 2003)—a rule commonly referred to
as the “post-removal-event” doctrine.
Under the first group of cases, we have appellate jurisdiction to review a district court’s remand
order made on grounds wholly apart from jurisdictional questions. Paradigm cases are the abstention-based
remand that the Supreme Court addressed in Quackenbush and the remand predicated on the state of the
district court’s docket that the Court addressed in Thermtron. In keeping with these two decisions, we have
held that a district court’s remand based on the “interpretation of a forum selection clause is reviewable on
appeal.” Regis Assocs., 894 F.2d at 195. But this exception to the ban on appellate review does not apply
where, as in this case, the district court based its remand on jurisdictional grounds. See, e.g., Ohio v. Wright,
992 F.2d 616, 619 (6th Cir. 1993) (en banc) (dismissing for lack of appellate jurisdiction where “the
question of removal jurisdiction was the heart of the decision in the district court, and the district court had
to examine the plausibility of the federal defense in making its ruling to remand for lack of removal
jurisdiction”); Baldridge v. Kentucky-Ohio Transp., Inc., 983 F.2d 1341, 1349 (6th Cir. 1993) (“We find
No. 03-6441 DaWalt, et al. v. Purdue Pharma, et al. Page 6

that the so-called ‘collateral issue’ was not collateral at all . . . . The preemption inquiry here, unlike an
inquiry into the enforceability of a forum-selection clause, necessarily ‘related to the question of
jurisdiction.’”); see also Godsey v. Miller, 2001 U.S. App. LEXIS 9402, at *9, 9 Fed. Appx. 380, 383 (6th
Cir. 2001) (unpublished) (“This case differs from Regis in that the issue of a forum selection clause is an
independent contractual concern created by the actions of the parties, and is not linked to the inherent
subject-matter jurisdiction of the court.”); Anusbigian v. Trugreen/Chemlawn, Inc., 72 F.3d 1253 (6th Cir.
1996) (holding unreviewable a decision on a non-jurisdictional issue necessarily related to the question of
jurisdiction).
Under the second group of cases, applying the post-removal-event doctrine, we have held that where
“the district court had jurisdiction at the time of removal, the district court’s subsequent remand for lack of
jurisdiction in light of changed circumstances . . . is reviewable by this court” on appeal. Letherer, 328 F.3d
at 265; see also First Nat’l Bank of Pulaski v. Curry, 301 F.3d 456, 460 (6th Cir. 2002) (“[Section] 1447(d)
means only that a remand order is unreviewable on appeal when the case was remanded based on the district
court’s conclusion that it lacked subject matter jurisdiction over the removed case at the time of removal.”);
Van Meter v. State Farm Fire & Cas. Co., 1 F.3d 445, 450 (6th Cir. 1993) (“[I]f a district court determines
subject matter jurisdiction to have existed at the time of removal, yet remands for alleged lack of subject
matter jurisdiction based on some post-removal event(s), the remand order is not a Section 1447(c) remand
order and is reviewable on petition for a writ of mandamus.”). In Letherer, the changed circumstance that
gave us appellate jurisdiction to review the remand order was the dismissal of a party. See 328 F.3d at 265.
In First National Bank of Pulaski, the changed circumstance was the dismissal of a federal claim. See 301
F.3d at 460. And in Van Meter, because we were unsure whether or not the post-removal-event doctrine
was applicable, we remanded to the district court and requested that the court clarify its remand order. See
1 F.3d at 451.
Left to be refined by our cases is the scope of the post-removal-event exception. Though we have
never precisely identified the kind of “events” that can give us appellate jurisdiction over a remand order,
two clear themes emerge from our § 1447(d) cases.
The first theme—and one consistent with the mandates of Supreme Court cases from Thermtron to
Gravitt to Things Remembered—is that, despite its name, the post-removal-event doctrine does not mean
that all events after removal, such as post-removal briefing or related post-removal events, factor into
whether we have appellate jurisdiction over a district court’s remand order based on jurisdictional grounds.
In Anusbigian, for example, we held that § 1447(d) barred review when a “district court’s subsequently-
acquired understanding of the case reveal[s] that the required amount in controversy had never existed.”
72 F.3d at 1255; see also id. at 1256 (“If a district court determines, rightly or wrongly, that it lacks subject
matter jurisdiction over a removed case, and for that reason remands it to the court from which it was
removed, the court of appeals lacks jurisdiction to review the district court’s decision.”). In doing so, we
refused to accept the proposition that the parties’ post-removal briefing, which formed the basis for the
district court’s amount-in-controversy determination, gave us appellate jurisdiction. Our en banc decision
in Wright accords with Anusbigian’s understanding of § 1447(d). In Wright, the district court based a
remand order on its determination that the defendant in the case was not an “officer of the United States”
under 28 U.S.C. § 1442(a)(1) at a hearing held nearly three years after the time of removal. See 992 F.2d
at 618–19. Nevertheless, we declined to exercise appellate jurisdiction.
Motivating Anusbigian, Wright and other cases in the same vein (and also motivating us today) is
the commonsense observation that many things may happen after a case is removed to federal court and
before the district judge renders a decision. Parties may conduct discovery. Parties may submit briefs. A
district judge may misplace his trusty copy of Hart & Wechsler or Currie’s Federal Courts, believe that he
has arrived at a new and improved theory of federal jurisdiction, only to recover his casebooks and his
jurisdictional sanity on the drive home from work. If each and every one of these “events” were to count
as a post-removal event for purposes of federal appellate jurisdiction, § 1447(d) would be left a dead letter.
Because only a truly prescient district judge can ascertain federal jurisdiction at the exact time of removal,
No. 03-6441 DaWalt, et al. v. Purdue Pharma, et al. Page 7

all remand orders in some sense turn on events that occur after removal. By explicitly requiring district
courts to remand for lack of subject matter jurisdiction “at any time,” moreover, § 1447 on its face prohibits
appellate review of subject-matter-jurisdiction remands that the district judge makes “at any time,” see, e.g.,
Thermtron, 423 U.S. at 345–46 (“remand orders issued under § 1447(c) and invoking the grounds specified
therein . . . are immune from review under § 1447(d)”).
The second theme that emerges from our cases also helps to ensure that the post-removal-event
doctrine does not swallow the § 1447(d) rule. As a close reading of our cases demonstrates, the post-
removal-event doctrine is implicated only when a district court makes a discretionary remand of pendent
state-law claims following the dismissal of a claim or a party. See 28 U.S.C. § 1367(c). A case in point is
First National Bank of Pulaski. Our appellate jurisdiction in that case depended on the district court’s
conclusion “that it retained supplemental jurisdiction, pursuant to 28 U.S.C. § 1367(a), to consider the
remaining state-law claims” and the court’s decision to decline “to exercise its supplemental jurisdiction
and instead remand[] those claims to state court.” First Nat’l Bank of Pulaski, 301 F.3d at 460. Similarly,
in Letherer, the dismissal of a party triggered the district court’s discretion to remand remaining pendent
state-law claims. In that case, a party undergoing bankruptcy reorganization removed a state-law contract
claim to a federal bankruptcy proceeding; the bankrupt party subsequently was dismissed from the contract
case, and the district court exercised its discretion to remand the contract claim to the state court from which
it originated. See Letherer, 328 F.3d at 265.
Some of our cases have made this limitation on our appellate authority to review remand orders
under the post-removal-event doctrine even more explicit. In Long v. Bando Manufacturing of America,
Inc., 201 F.3d 754 (6th Cir. 2000), we noted that our appellate jurisdiction turned on the fact that “the
district court explicitly stated that it had subject matter jurisdiction when the case was removed and noted
that it had not been divested of that jurisdiction by the dismissal of the plaintiff’s federal claims.” Id. at
758; see also In re Glass, Molders, Pottery, Plastics & Allied Workers Int’l Union, Local No. 173, 983 F.2d
725, 727 (6th Cir. 1993) (“In the instant case, upon dismissal of any and all federal claims as time-barred,
the district court remanded the ‘pendent state claims.’ Such remand was discretionary with the court . . .
[and therefore] the remand order is reviewable.”); Loftis v. United Parcel Serv., 342 F.3d 509, 513–14 (6th
Cir. 2003) (“we have jurisdiction over an appeal from a district court’s discretionary decisions to remand
that are not based on lack of subject matter jurisdiction or defects in the removal procedure”). Even where
our holdings have approached the boundaries of the post-removal-event doctrine, we have always required
an affirmative action by the district court to indicate that the remand was premised on pendent state-law
claims, and not for lack of subject matter jurisdiction. See, e.g., Davis v. UAW, 392 F.3d 834, 838 (6th Cir.
2004) (reviewing the district court’s remand order when a party had “expressed his intent to abandon [a]
claim,” thus converting a case over which the court had subject matter jurisdiction into a case that the
district court could remand in its discretion under § 1367). Or, on rare occasions, we have remanded an
appeal to a district court where a remand order needed further clarification. See Van Meter, 1 F.3d at 451.

But we have never held that any post-removal event makes a remand order reviewable or strayed
from the requirement that a remand order reviewable under the post-removal-event doctrine must be
composed of pendent state-law claims. Even though a district court assuredly should assess its subject
matter jurisdiction based on the state of the world at the time of removal, see, e.g., Grupo Dataflux v. Atlas
Global Group, L.P., 541 U.S. 567 (2004); Worthams v. Atlanta Life Ins. Co., 533 F.2d 994, 997–98 (6th Cir.
1976), we do not have jurisdiction when a district court relies on post-removal events to determine that it
lacked subject matter jurisdiction at the time of removal (say, for example, because the parties were never
diverse). Nor can we agree that an appeals court has jurisdiction whenever a district court incorrectly
determines its lack of subject matter jurisdiction based on post-removal events but does not have jurisdiction
whenever a district court correctly determines its lack of subject matter jurisdiction after post-removal
events. If this were so, we would effectively affirm (by dismissing for lack of appellate jurisdiction) all
correctly decided subject-matter-jurisdiction remand orders and reverse all incorrectly decided subject-
No. 03-6441 DaWalt, et al. v. Purdue Pharma, et al. Page 8

matter-jurisdiction remand orders, a result tantamount to deciding every case on the merits and evading
§ 1447(d) entirely. See Adkins v. Illinois Cent. R.R. Co., 326 F.3d 828, 834 (7th Cir. 2003).
Our acknowledgment of this limitation on our appellate power not only reins in a potentially
boundless exception to § 1447(d) that would render the statute obsolete but also coheres with the Supreme
Court’s instructions. The source of the post-removal-event doctrine, as our precedents make clear, see, e.g.,
Loftis, 342 F.3d at 513; Long, 201 F.3d at 761, is the Supreme Court’s implicit holding in Cohill. (Recall
that the only two Supreme Court opinions that have explicitly sanctioned departure from § 1447(d)’s bar
to appellate review, Thermtron and Quackenbush, both involved remands made on non-jurisdictional
grounds and that neither decision implicated the post-removal-event doctrine.) Cohill itself involved a
district court’s discretionary remand of pendent state-law claims. For good reason, we have not read our
own appellate jurisdiction more broadly than Cohill seemingly permits.
C.
With this framework in mind, we turn to Purdue’s assertion that we have appellate jurisdiction to
review the district court’s remand order in this case because of any one of four distinct events that occurred
after the removal of the case from state court and before the district court’s remand. We reject each of them.
The first is the parties’ subsequent briefing and, in particular, DaWalt’s attempts to alter his
complaint so that the implied recovery for members of the class fell below the jurisdictional amount-in-
controversy requirement. For one, nothing in this case implies that the district court actually relied on
DaWalt’s amendments to its complaint in deciding to remand the case to state court. For another, broader
reason, this type of briefing is likely to occur in every removal case. And in no appeal from a remand order
should it be considered a post-removal event sufficient to pass § 1447(d)’s bar to appellate review. Simply
put, briefings and repleadings do not, on their own, turn remands for lack of subject matter jurisdiction into
remands of pendent state-law claims.
The second is the district court’s decision to strike from the suit a party that was not suable in its own
right. Letherer illustrates how a decision to strike a party can trigger a district court’s discretion to remand
pendent state-law claims. See 328 F.3d at 265. Not so here. The district court’s decision to dismiss
Partners Against Pain, a website run by Purdue, had no bearing on the court’s subject matter jurisdiction.
Although the district court may have erred in choosing to strike a party from a claim over which it lacked
jurisdiction, that error does not make this case reviewable under the post-removal-event doctrine.
The third is the Kentucky Supreme Court’s opinion in Wood. Although the Kentucky Supreme
Court’s opinion may well have occurred post-removal, this very case indicates the fallacy of viewing a state-
court case as a post-removal “event,” because Wood merely affirmed a preexisting decision of the Kentucky
Court of Appeals. In doing so, the Wood court recognized that “other states have allowed recovery for
exposure to harmful substances on a theory known as ‘medical monitoring,’ which often does not require
a showing of physical injury,” 82 S.W.3d at 856, but cited a long line of its own precedents requiring proof
of present injury to sustain recovery in tort, and declined to permit recovery for claims based on prospective
medical monitoring. The Kentucky Supreme Court’s decision to follow its own long-established precedent
and to affirm the preexisting decision of the state court of appeals cannot be said to constitute a post-
removal event.
The fourth (and most difficult to resolve) is the district court’s apparent dismissal in its March 5,
2002, order of DaWalt’s medical monitoring claim. This decision alone on the part of the district court
implicates the doctrine of pendent jurisdiction. In Purdue’s view, the district court order should be read to
take jurisdiction of the case, dismiss one claim (the medical monitoring claim) and remand the remaining
state-law claims under the discretionary doctrine of pendent jurisdiction. In DaWalt’s view, we should read
the district court order as indicating that the court never had jurisdiction in the first place, along with a
simultaneous and erroneous dismissal of the medical monitoring claim.
No. 03-6441 DaWalt, et al. v. Purdue Pharma, et al. Page 9

DaWalt has the better of the argument. The district court’s order first discusses the medical
monitoring claim. Next, the order dismisses the claim. Subsequently, the order discusses federal-question
subject matter jurisdiction. Finally, the order stresses that it effectuates a remand for lack of subject matter
jurisdiction and refuses to certify Purdue’s request for interlocutory appeal because of § 1447(d). All of this
can best be read to indicate that the district court believed it lacked subject matter jurisdiction at the time
of removal. The court would have had little reason, for example, to discuss the possibility of federal-
question jurisdiction after dismissing the medical monitoring claim if it believed that it had subject matter
jurisdiction of the case from the start. And the district court’s discussion of § 1447(d), though it cannot
insulate the district court’s order on its own, cf. Feidt v. Owens Corning Fiberglass Corp., 153 F.3d 124,
129 (3d Cir. 1998) (noting that the district court’s labeling of the order as “appealable” did not make the
order appealable), bolsters the conclusion that the district court thought it was remanding for lack of subject
matter jurisdiction.
That leaves the question of what to do with the medical monitoring claim. Because the district
court’s dismissal of the medical monitoring claim is inconsistent with the court’s claim that it lacked subject
matter jurisdiction and because § 1447(d) does not bar our jurisdiction to review a district court’s dismissal
of a claim, we vacate that part of the district court’s decision. See, e.g., Waco v. United States Fid. & Guar.
Co., 293 U.S. 140 (1934) (permitting an appeals court to review a district court’s decision that accompanies
a remand order and that has res judicata effect); see also Heaton v. Monogram Credit Card Bank, 297 F.3d
416, 420–21 (5th Cir. 2002) (“Under the City of Waco rule, we may review any aspect of a judgment
containing a remand order that is distinct and separable from the remand proper even if this court lacks
jurisdiction to review the remand order.”) (quotation marks omitted); 28 U.S.C. § 1447(d) (barring appellate
court review of district court remands, not other district court decisions that happen to occur in the same
judgment).
III.
For these reasons, we dismiss the appeal of the remand order for lack of appellate jurisdiction and
vacate the district court’s dismissal of the medical monitoring claim.