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The court in Turner v. DePuy Orthopedics, Inc., 2014 U.S. Dist. LEXIS (C.D. Calif. July 29, 2014), ordered the remand of a removed case after rejecting the defense’s argument that Mensing preemption (or at least its reasoning) should be extended to failure to warn claims brought against a doctor involved in the design of a medical device.  The defense’s argument was aggressive, even inventive, but it wasn’t bad.  Its argument was that the doctor-designer, much like a generic drug manufacturer, had no control over the warning label.  Rather, the manufacturer controls the ultimate content of the label, just as the brand manufacturer, not the generic manufacturer, controls the ultimate content of generic drug’s label.  The court saw things differently, though.  Taking plaintiff’s allegations as true, the court found a “possib[ility]” that the doctor “had a substantial ability to influence the manufacturing or distribution” of the device.  Id. at *10.

Maybe, but we’re not sure that any of that gave the doctor the power to control or influence the content of the label.  Nor did we find such support in plaintiff’s allegations.  According to the court, plaintiff alleged that the doctor “designed the hip implant,” received royalties (millions) from it, and participated in its marketing. Id. at *8-9.  We agree that, from these allegations, it’s “possible” that the doctor-designer could have influenced labeling of the device.  But did plaintiff allege enough to make it “plausible”?  It doesn’t seem so.  Only guesswork allows one to conclude that this particular individual had that type of influence.  Drugs and devices are generally developed and designed by multiple doctors and scientists.  This is reflected in the defense’s opposition, which included a declaration from the doctor-designer stating that he was only one of “eight physicians who acted as consultants in the design process.”  Id. at *9.  One of eight consultants certainly doesn’t sound like someone with influence over final labeling.  There needed to be more factual allegations suggesting, plausibly, that this doctor could have exerted such control or influence.

Now, the disconnect here may be that, even though federal, the court was not applying TwIqbal or anything resembling it.  The court believed instead that it could not dismiss the doctor as fraudulently joined if there was “any possibility that plaintiff may prevail.”  Id. at *5.  That’s different from the TwIqbal standard, and we have addressed (here) that we believe federal courts considering fraudulent joinder should apply TwIqbal, or at least a TwIqbal-like standard.  This court didn’t.

Similarly unsatisfying was the court’s treatment of the defense’s argument that, as neither a manufacturer nor a seller, the doctor owed no independent duty to plaintiff, meaning that the claim against the doctor could not succeed.  Id. *8-9.  Designing or consulting on the design of a product seems quite different from manufacturing or selling it.  The court rejected this argument, though, concluding summarily that plaintiff’s allegations were enough to suggest that the doctor knew of the alleged defect and failed to warn not just the plaintiff, but his doctor and maybe even the manufacturer.  Id. at *9.  Nonetheless, we didn’t see much of anything in plaintiff’s factual allegations transforming the doctor into a manufacturer or seller, nor did we see in the court’s opinion any detailed discussion as to why the law would treat him as such.

And so it seems that speculation and possibility have shielded another plaintiff from federal court.  When federal courts don’t analyze fraudulent joinder disputes with TwIqbal in mind, this outcome becomes much more likely.