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

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U.S. Supreme Court

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

Merrell Dow Pharmaceuticals, Inc. v. Thompson

No. 85-619

Argued April 28, 1986

Decided July 7, 1986

478 U.S. 804


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

Page 478 U. S. 805

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. 478 U. S. 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. 478 U. S. 818.

Primary Holding

There is no subject matter jurisdiction when a state cause of action alleges a violation of a federal statute, but no private, federal cause of action has been provided for the violation.


A child of the Thompsons and a child of the MacTavishes were born with birth defects because of their mothers' consumption of Bendectin during pregnancy. They sued Merrell Dow, which produced the drug, for damages and argued that the drug was misbranded in violation of the Federal Food, Drug, and Cosmetic Act. Merrell Dow successfully removed the case to federal court, at which point Thompson tried to remand to state court because there was no subject-matter jurisdiction. After denying that motion, the court granted Merrell Dow's motion to dismiss on forum non conveniens grounds, but the appellate court reversed.



  • John Paul Stevens (Author)
  • Warren Earl Burger
  • Lewis Franklin Powell, Jr.
  • William Hubbs Rehnquist
  • Sandra Day O'Connor

A jury might be able to find that the defendant had acted negligently, even if it had not violated federal law. Federal question jurisdiction does not automatically arise if there is a federal ingredient in a cause of action largely brought under state law. The plaintiffs' rights are not necessarily based on the interpretation of federal law.


  • William Joseph Brennan, Jr. (Author)
  • Byron Raymond White
  • Thurgood Marshall
  • Harry Andrew Blackmun

Under Section 1331, federal jurisdiction should not be subject to these limitations, and it may be appropriate even if state law gives rise to the right asserted and the remedy sought by the plaintiff.

Case Commentary

Removal is proper only if the case could have been brought originally in federal court, which must be evaluated by examining the facts pled in the plaintiff's complaint. The limits of federal question jurisdiction can be unclear, since it is so loosely defined.

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