Photo of Bexis

Thanks to Jim Fraser at Venable for passing along a nice fraudulent misjoinder finding in the Fosamax MDL, Welsh v. Merck Sharpe & Dohme Corp., C.A. No. 11-3045, slip op. (D.N.J. April 3, 2012).  Welsh originated in Missouri state court, and demonstrates the lengths to which plaintiffs will go if given free reign to misjoin plaintiffs and defendants in order to defeat diversity.  Missouri, you see, is in the Eighth Circuit, and that circuit has essentially refused to recognize fraudulent misjoinder.  See In re Prempro Products Liability Litigation, 591 F.3d 613 (8th Cir. 2010).  Here, the defendants were saved from the grotesque misjoinders allowed by the Eighth Circuit by the felicitously timed creation of the Fosamax MDL, venued in New Jersey.  Unlike the Eighth Circuit, the Third Circuit recognizes fraudulent misjoinder.  In re Briscoe, 448 F.3d 201 (3d Cir. 2006).
The complaint in Welsh was a mess.  First, it involved “91 plaintiffs who are citizens of 28 different states.”  Slip op. at 2.  Second, the claimed injuries were vaguely alleged simply as “long bone fractures,” id., which as the court noted could mean anything from the fingers to the femur.  Id. at 7 n.5.  Third, the complaint glommed together the branded manufacturer of Fosamax with a variety of differently situated alleged generic manufacturers “without affirmatively identifying the specific manufacturers against whom [plaintiffs] bring actions.”  Id. at 8.  In short, the complaint was a gross, indistinct, incomprehensible mess alleging nobody’s injury and not identifying the product that anybody took.
That’s where plaintiffs will go if the courts don’t stop them.  No further justification of TwIqbal is necessary.
That fine mess thus more than satisfied both prongs of fraudulent misjoinder:  (1) that there is a misjoinder and (2) that it is egregious.  Slip op. at 5-6.  Helpfully, the Welsh court observed that fraudulent misjoinder “is particularly relevant to large pharmaceutical product liability actions.”  Id. at 6

These factual variances allude to a larger problem with joinder of so many drug product liability claims.  Toxic tort cases raise more complicated issues of causation and exposure. . . .  Joinder of plaintiffs in a drug product liability case in no way promotes judicial efficiency or convenience. . . . [H]ere . . . 91 Plaintiffs allege such unspecific injuries as to make it impossible to determine how the Plaintiffs share any connection.

Id. at 8 (citations and block quote from a Rezulin case omitted).  Equally egregious, 73 of the 91 plaintiffs were completely diverse from any of the defendants.  The diversity of the remaining 18 could not be determined because none of them alleged which defendants’ products they claimed to have consumed.  Id. at 9 (commenting on “and/or” pleading).
In light of the large number of parties and the spectacularly imprecise pleading, the court in Welsh had no trouble concluding that the misjoinder was an intentional effort by the plaintiffs to subvert diversity jurisdiction:

Plaintiffs’ obfuscation in naming Defendants suggests an element of collusion intended to deprive Defendants of removal jurisdiction in federal court.  Moreover, the factual, temporal, and geographic diversity among Plaintiffs’ claims wholly disregards the purpose of permissive joinder because these are claims that no reasonable person would normally expect to be tried together.

Slip op. at 9.  “Accordingly, the Court concludes that joinder was undertaken to thwart Defendants’ statutory right of removal to federal court.”  Id. at 10.
The plaintiffs evidently drafted their morass of a complaint confident that Eighth Circuit precedent protected them from any sort of judicial review.  The MDL transfer here made all the difference and allowed these defendants to bring this absurd pleading to light and to obtain the relief to which they were so plainly entitled.