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What the deuce is it about today?  The date is made up of two 2’s.  Today is the 76th birthday of two of our favorite, though couldn’t-be-more-different, actors:  Derek Jacobi (I, Claudius/Last Tango in Halifax) and Christopher Lloyd (Back to the Future/Taxi).  This day in 1978 saw the papal inauguration of John Paul II.  And, after much hand-wringing and soul-searching, today we have decided to drop two TV shows from our viewing rotation:  Homeland and Masters of Sex.  Sorry, Showtime, but those programs jumped a shark swimming in a pool of implausibility. (Boozy, sexy, sometimes thrilling implausibility, to be sure, but implausibility nonetheless.)

It’s only fitting that today we address a pair of stinkpot cases. Fronczak v. DePuy Orthopaedics, Inc., 2014 U.S. Dist. LEXIS 146347 (M.D. Fla. October 14, 2014) and Wier v. DePuy Orthopaedics, Inc., 2014 U.S. Dist. LEXIS 146353 (M.D. Fla. October 14, 2014) were decided on the same day by the same judge, involve the same issues, and offer the same lame fraudulent joinder analysis.

The plaintiffs in both cases (represented by the same attorneys) alleged injuries from the implantation of artificial hip prostheses manufactured by DePuy and distributed by Bayside Orthopaedics.  The plaintiffs asserted claims for negligence, negligent failure to warn, strict liability failure to warn, strict liability, and breach of warranty.  The cases were filed in state court in Sarasota, Florida.  The inclusion of Bayside as a local defendant wrecked diversity. Nevertheless, DePuy removed the cases to federal court and argued that Bayside had been fraudulently joined.

DePuy argued that the claims against Bayside were preempted.  Its reasoning was clever, compelling, and correct.  It was also futile.  The federal court followed the argument, up to a point:  “In Mensing, the Supreme Court held that all state-law tort claims based on an alleged failure to warn of the risks of generic medications are preempted by federal law because it is impossible to comply with both a jury’s charge to strengthen a generic drug warning under state law, and the federal mandate that a generic drug’s labeling be the same as that of the brand-name drug.  Bartlett extended this reasoning in design defect claims, holding that redesigning a generic drug was also impossible because federal drug regulations require a generic drug to have the same active ingredients, route of administration, dosage form, and strength as the brand-name drug on which it is based.” Wier, 2014 U.S. Dist. LEXIS 146353 at *5-6 (citations omitted).   So far so good.  DePuy then took the logic a little further and argued that the Mensing-Bartlett impossibility line should apply to other failure to warn cases, such as these two, and should preclude an action against a distributor that clearly had no ability to change any device warning.

Rather than embrace DePuy’s admirable syllogism, the federal court lunged for the 11th Circuit “no possibility of recovery” standard for testing fraudulent joinder arguments, and held on fast.  We’ve bemoaned this standard before. If the TwIqbal standard for testing fraudulent joinder is the state-of-the-art, Peyton Manning-level standard, and the TwIqbal-light standard favored by some courts is Nick Foles (pretty good, but makes us nervous), then the no-possibility-of-recovery standard is Joe Pisarcik (look up “Miracle in the Meadowlands” on your browser).  (By the way, when a federal court decides whether there was fraudulent joinder by applying some dreadfully permissive state law pleading standard, that is like slapping an old leather helmet on your friendly neighborhood barista and sending him in against JJ Watt.)  The no-possibility standard inspires more indolence than insight.

We’re used to all sorts of lax standards that give plaintiffs the benefit of the doubt on what the facts might be.  But what is so pernicious about the no-possibility-of-recovery standard is that it tells the court to “resolve uncertainties about the applicable law in favor of the plaintiff.”  Wier at *4.  If that isn’t an invitation to lazy-thinking, then we’ll turn in our bar cards and spend the rest of our days watching Claire Danes cry-a-thons and Lizzy Caplan-Michael Sheen, um, hug-a-thons.

In both Weir and Fronczak, the court previews its conclusion thusly: “Because uncertainties exist as to the applicability of Mensing’s preemption with regard to distributors of medical devices, the Court concludes that remand is appropriate.”  Weir at *2; Fronczak at *2.   Then we get this:  “Mensing and Bartlett are arguably distinguishable because they both addressed federal preemption in the specific context of generic drug manufacturers, rather than medical device distributors.”  Wier at *5; Fronczak at *5.  Why would that factual distinction matter in terms of applying the Supreme Court’s impossibility analysis?  Either way, the defendant at issue cannot change the label/IFU.

Now in defense of the Wier and Fronczak courts (really “court” singular, since it is the same judge), there was a precedent out there that jabbered at this issue:  “The Court has previously acknowledged this distinction in the context of Mensing, explaining [we cannot resist inserting a sic here] ‘[t]here is a marked difference between a duty requiring a drug manufacturer to physically change its federal approved label and a duty requiring a distributor to warn a third party of what the federal approved label or warning on a file with the FDA says.  Accordingly, whether Florida law imposes a duty to warn upon device distributors such as the [d]istributor [d]efendants is a determination best left to State court.’  See Zaremba v. Orthopedics, Inc. 8:14-CV-1016-T-33TGW, 2014 U.S. Dist. LEXIS 91762, 2014 WL 3057400, at *4 n. 2 (M.D. Fla. July 7, 2014).”   If you can explain what that quote means, or why it calls off a Mensing-Bartlett impossibility analysis, then maybe you can also explain how the main character in Homeland was not tried for treason at the end of  season 2.

What exactly did the distributor do in this duet of sad cases besides, you know, distribute?  The plaintiff in Wier alleged that Bayside “disseminated literature to the orthopedic community in Florida” and provided the plaintiff’s orthopedic surgeon information “including, but not limited to, the advantages of the ASR System compared to its competitors, information regarding the design rationale for the ASR System, surgical techniques on how to implant the ASR System, and demonstrations on how to implant the ASR System and the components that could best be mated with the ASR System” with the “intended purpose of convincing and inducing Plaintiff’s orthopedic surgeon to use the ASR System.”  Wier at *8-9.  We can discern nothing actionable in any of that.  Then:  “Plaintiff also alleged that in preparation for his surgery, ‘Defendants (or their employees or agents) selected and provided the specific components to be used during the surgery and delivered them to the operating room where Plaintiff’s implant surgery took place.”  Id. at *9.  Aha!  Well, actually, nope, we still do not see anything actionable.

Maybe the plaintiff in Fronczak came up with something juicier.  Let’s see:  “Plaintiff alleged that Bayside ‘disseminated literature to the orthopedic community in Florida stating that the ASR components were ‘large diameter, high performance metal-on-metal bearings designed and manufactured within fine tolerances to facilitate a state of fluid film lubrication’ and ‘designed to reduce wear and provide high function for all patients.’  Plaintiff also alleged that in preparation for his surgery, ‘Defendants (or their employees or agents) selected and provided the specific components to be used during the surgery and delivered them to the operating room where Plaintiff’s implant surgery took place. Thus, Plaintiff has stated a colorable claim against Bayside for strict liability.” Fronczak at *8-9 (citations omitted).  Somewhere between that last sentence, where the court concluded there was a colorable claim, and everything that led up to it, there must be some sort of legal cogitation.  Or is it a leap of faith, inspired by the “no possibility” standard’s requirement that if any interpretation or mutilation of the law might keep the non-diverse defendant in, then the federal court can push the remand button with a clean conscience and a slightly lighter docket?

Is it possible that reading a pair of cases can make you dumber?  (Some uncharitable wag will inevitably point out that we cannot get any dumber.)  These opinions on fraudulent joinder leave us thirsty for something better.  Perhaps we will reach for a beverage.  Perhaps we will reach for two.