We have written many times, as recently as Tuesday, that the practice of plaintiff lawyers to include patently inapplicable claims among a laundry list of causes of action asserted in complaints is lazy, if not problematic.  It is rare to see a plaintiff self-regulate and cull down an overbroad pleading without a defense motion (or a conferral predicate to a motion).  We cannot recall a time when a plaintiff, evaluating the outcome of discovery, took the unilateral step to drop claims that were unsupported or to delete the sort of “on information and belief” assertions that often litter product liability complaints.  For example, medical device product liability complaints almost always assert one or more claims for manufacturing defect, yet discovery rarely uncovers support that a particular device did not meet specifications when it left the manufacturer’s control.  It is hard to imagine that a plaintiff lawyer has a good faith basis to assert a manufacturing defect claim after being presented with evidence that the lot that included plaintiff’s device met specifications and having nothing in the way of contradiction other than circular reasoning that the particular device must have been defective if it caused an injury to the plaintiff.  Another example common to drug and device product liability cases is where the complaint includes a number of allegations, whether or not tied to specific theories of recovery, that the defendant defrauded FDA, failed to report adverse events to FDA, and/or violated various FDA regulations.  If discovery showed that every single relevant adverse event was reported, then the unsupported (and arguably scurrilous) allegations about adverse events not being reported should be deleted at plaintiff’s initiative.  That does not happen, at least in the cases we see.

While plaintiffs in the TwIqbal era may pay some price for offering cookie-cutter complaints without detailed factual allegations, there is rarely a penalty for plaintiffs throwing as many muddy counts at the wall as they can and seeing what sticks.  When it comes to removal by a defendant, a recent case out of a hip implant MDL reminds us that there can be a benefit to the defendants doing something similar.  (This is certainly the case when it comes to asserting defenses in an answer and avoiding waiver down the road.)  Whether a case ends up in state or federal court can be outcome determinative and, as a result, we have discussed a number of decisions relating to removal and remand. We have never discussed the Supreme Court’s decision in BP P.L.C. v. Maor & City Council of Balt., 593 U.S. 230 (2021), before, which means it is a relatively obscure decision in our little corner of the blogosphere.  We offer Codman & Shurtleff, Inc., v. Medical Device Bus. Servs., Inc., No. 24-3737, 2024 U.S. App. LEXIS 28486 (6th Cir. Nov. 8, 2024), as something of a cautionary tale about the lessons of BP.

As often happens in MDLs, some cases are filed in state court with non-diverse defendants included as a means to block removal.  When removal happens, some of the plaintiffs will file motions to remand, which often get decided by the MDL court after transfer.  Even though removal can end up being determinative, decisions on remand motions are not “final decisions” and are not generally appealable under 28 U.S.C. § 1291.  Decisions granting remand motions are addressed by 28 U.S.C. § 1447(d), which makes clear that they are “not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.”  Of the two sections that serve as exceptions, § 1442 for federal office removal does come up in cases against drug and device manufacturers.  It is not often successful for various reasons, including that, notwithstanding our introduction, most experienced plaintiff lawyers in this space try to plead around it.  It does work sometimes, though.  In Codman, the defendants did not invoke § 1442 or § 1443 in their removal, and the MDL court issued an order granting the motion to remand.  2024 U.S. App. LEXIS 28486, *3.  The Sixth Circuit ruled that the denial of the motion to remand was not appealable. Id.

The lesson, however, comes from the holding in the BP case we mentioned above and Codman cited.  If either § 1442 or § 1443 is invoked in the removal, then the “remand order is reviewable in its entirety.”  Id.  That means, for our type of case, a removing defendant that wants the option of appealing an order remanding a truly diverse case should also offer a plausible basis for federal officer removal in its initial removal papers.  We say plausible because we do think Fed. R. Civ. P. 11(b) matters.  If the notice of removal can be signed consistent with that rule, though, then it should include an argument about federal officer removal to preserve an appellate option no matter how strong the argument for diversity jurisdiction may be.