Plaintiffs naming local sales representatives—or doctors, or pharmacies, or distributors, or retailers—as defendants to try to destroy diversity and avoid federal court is nothing new.  Unfortunately, defendants bear a “heavy burden” proving fraudulently joinder.  In fact, our last post on the topic was in February 2023, demonstrating that successes on this issue are few and far between.  But sometimes plaintiffs simply reach too far, as in the case of Porta v. Exactech, Inc., 2024 WL 4276490 (E.D.N.Y. Sep. 24, 2024).           

To establish fraudulent joinder, a defendant must show that “there is no possibility” that plaintiff can state a claim against the non-diverse defendant.  Even a slim chance of recovery defeats fraudulent joinder; but where a defendant can meet its burden, the non-diverse defendant is dismissed and remand is denied.  Id. at *3. 

Plaintiff in Porta underwent knee replacement surgery in 2020.  The implanted device was later recalled requiring plaintiff to undergo revision surgery.   Id. at *1.  Plaintiff filed suit against the manufacturer of the device and several of its corporate affiliates alleging products liability in violation of the Connecticut Product Liability Act (“CPLA”).  All products liability claims in Connecticut are subsumed under the CPLA—negligence, strict liability, and warranty.  To be liable under the CPLA, a defendant must be a “product seller,” defined as:

any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption.      

Id. at *4 (quoting Conn. Gen. Stat. § 52-572m(a)). 

Plaintiff also brought CPLA products liability claims against one of the manufacturer’s sales representatives alleging that representatives are product sellers because they market and advertise to physicians and hospitals and that “sales reps such as [defendant]” are present during surgeries involving the knee implant system.  Id. at *2 (emphasis added). 

Connecticut has not directly addressed the question of whether medical device sales representatives qualify as product sellers under the CPLA.  But looking at analogous cases, the court found the critical factor in determining whether a defendant was a product seller was the extent of the defendant’s “involvement in the stream of commerce that brought the particular product to the particular plaintiff at issue.”  Id. at *4 (emphasis added).   

Here, plaintiff’s allegations were not sufficiently particularized to show that he could recover against the named sales representative.  While plaintiff alleged generally that the sales representative defendant visited doctors’ offices and hospitals in Connecticut and possibly New York City (where plaintiff had his surgery), he did not allege that the rep visited his surgeon.  Also, while it is correct that sales reps sometimes attend surgeries, plaintiff did not allege that the named rep attended his surgery, or any other surgery performed by his implanting surgeon.   Id. at *5-6.  So, even resolving all factual and legal issues in plaintiff’s favor, the sales rep “still has no real connection to this controversy.”  Id. at *6 (emphasis in original).  It is irrelevant to this case that the sales rep may have convinced another surgeon in some other hospital to implant the medical device when he did not do so with respect to plaintiff’s surgeon or plaintiff’s device.

Completely missing from plaintiff’s allegations are any showing the sales rep’s involvement in the stream of commerce for plaintiff’s particular knee replacement.  Absent that connection, there is “no possibility” that Connecticut would consider the rep a product seller and therefore no possibility that plaintiff can recover against him under the CPLA.  Id.  A contrary ruling would subject every sales representative to liability regardless of their connection to plaintiff’s injuries.  The court “was satisfied there is no possibility a Connecticut court would adopt this reading of the CPLA.”  Id. at *7. 

Because the sales rep was fraudulently joined, he was dismissed and plaintiff’s motion to remand based on a lack of diversity was denied.  But plaintiff did advance one additional argument.  When a defendant removes a case from state court, the remaining properly joined and served defendants must consent to the removal.  Here, the case was removed by the manufacturer who received consent from the other corporate defendants.  The day before consenting, those other defendants had told plaintiff that they would “not seek removal.” Plaintiff argued that was a waiver that prevented them from consenting and essentially nullified the removal.  The court did not agree.  Even if those defendants had waived their right to remove, they did not speak for the manufacturer nor did they promise not to consent to another defendant’s removal.  The consent was freely given and the removal was proper.  Id. at *8-9.