If Sunday night’s Academy Awards show is propelling you towards your nearest movie theater to catch up on the nominated flicks, put The Revenant on the top of your list if you have not already seen it. Most of you probably know that there is a startling scene in The Revenant where a bear suddenly attacks the character played by Leonardo DiCaprio. (Leo acted truly surprised and dismayed. No surprise there; he is usually set upon by supermodels. Their claws are slightly less sharp.) It is an amazingly scary, overwhelming moment, leaving viewers shuddering and wondering ‘how-did-they-do-that?’
Perhaps every movie would benefit from a random bear attack. In The Big Short, wouldn’t it be swell if a grizzly paid a visit to an investment bank conference room just as a commercial mortgage backed securities transaction was about to close? Matt Damon had a tough time making it on his own on Mars, but think how much more challenging it would have been if a mama bear interrupted his gardening. There was certainly a lot of tension during the final prisoner exchange in Bridge of Spies, but it would have upped the ante if the East German snipers had to contend with ursine mischief. Nor need the benefits of beardom be confined to this year’s Oscar nominees. If we can colorize Citizen Kane or It’s a Wonderful Life, why can’t we insert bear attacks as Kane utters “Rosebud” or when Jimmy Stewart is about to take a sucker punch from a bar bouncer? Surely, a bear hug would have enlivened the slower moments in The King’s Speech or A Beautiful Mind? Or DiCaprio could have met that bear earlier, whilst scampering around the decks on the Titanic. The mind reels.
There are also times in real life when a bear attack might rescue us from tedium or a fate worse than a mere mauling. Morning commutes, visits to Home Depot, and practice group meetings could all add excitement with a surprise visit from a 900 lb., hairy super-predator. (No, we are not talking about a certain plaintiff lawyer who has ruined many a MDL status conference.) That is also true for our cases. When a plaintiff lawyer for the fortieth time at a deposition asks our witness to confirm that a document says what it says, or just before a judge is about to pronounce that discovery requests shall be liberally granted, how nice for a bear to knock down a wall and render a little creative destruction! Even better, how about sending a bear to visit a plaintiff lawyer when said lawyer is on the eve of doing something perfectly rotten? Like fraudulent joinder.
Believe it or not, a nice, short, sweet opinion from the Ninth Circuit can be just as effective as an angry bear. The opinion in Kwasniewski v. Sanofi-Aventis U.S., LLC, No. 13-17390, slip op. (9th Cir. Feb. 24, 2016) was issued under 9th Cir. R. 36-3, and is nonprecedential, but it should be comforting to defendants and should have a nice in terrorem effect on plaintiff lawyers seeking to avoid federal jurisdiction. What happened in the case? A man committed suicide after taking a medicine. His family members then brought a lawsuit in Nevada state court alleging claims against the medicine’s manufacturer, as well as against a therapist and the therapist’s employer. We assume that the claims against the manufacturer were of the usual variety. The claim against the therapist was that she should have warned her patient about the medicine’s side effects. Did we mention that the therapist and her employer were local while the manufacturer was not? Need we tell you that those local defendants were defendants only to prevent the case from being removed to federal court?
The manufacturer removed the case anyway, arguing that the therapist and her employer were fraudulently joined because no valid causes of action could be leveled against them. The district court agreed with the manufacturer, found fraudulent joinder, and refused to remand the case to Nevada state court. The plaintiffs then filed an interlocutory appeal. The appellate court reviewed the denial of a motion to remand de novo. Now some of you know your geography and your Circuit courts well enough to know that the appellate court for a federal district court in Nevada would be the Ninth Circuit. And some of you might start getting weak at the knees, worrying that the bad old Ninth Circuit would find a way to give plaintiffs anything they want. But as we’ve said before, the Ninth Circuit is not as predictably pro-plaintiff as advertised. It has lots of judges of all stripes. As Walt Whitman might have said, it is vast, it contains multitudes. It is possible to get a very, very good panel on the Ninth Circuit. Put plainly, we will not stand for any unfair criticism of the Ninth Circuit. (Yes, yes, perhaps full disclosure is in order: we clerked on the Ninth Circuit.)
The Ninth Circuit’s reasoning in Kwasniewski was elegant and to the point. On appeal, the plaintiffs argued that their malpractice claim against the therapist included the theory that she had negligently failed to diagnose her patient as suicidal. But the district court correctly read the claim to boil down to an allegation that the therapist fell below the standard of care by not warning her patient about the medicine’s side effects. Here is the problem for the plaintiffs: no such duty exists under Nevada law for nonprescribing therapists. Such a duty extends to prescribing physicians, and it might even extend to a pharmacist dispensing a prescription medication if the pharmacist is aware of a consumer’s specific risk such as an allergy or contraindication with other medications the plaintiff is taking. But “[n]o such exception has been recognized for therapists.” The case stays in federal court.
So now there is another type of non-diverse defendant that we can add to our fraudulent joinder list — or that plaintiff lawyers can take off their list of potential defendants who can wreck diversity jurisdiction.
Plaintiff lawyers must find this result unbearable.