It’s MLB playoff season and once again the Milwaukee Brewers are at the top of the field. They, along with the Philadelphia Phillies and the Chicago Cubs, have all secured a home-field advantage in the playoffs. That means those teams have the tactical edge of getting the final at-bat in each inning and overall. They also play on their own field, usually in front of their own fans–where they feel more comfortable. Simply put, historically, home teams win more. So, it’s not surprising that in litigation too, everyone wants home-field advantage. Plaintiffs want to stay in state court with sympathetic juries, while defendants prefer the cool neutrality of federal court. And yet, time and again, plaintiffs try to thwart federal jurisdiction by naming local pharmacies or hospitals as defendants to defeat diversity.

The plaintiff in today’s case did just that. But the court was having none of it. First, the decision finds the pharmacy was fraudulently joined because Illinois does not recognize either failure to warn (with a limited exception) or strict liability claims against pharmacies. Second, when faced with dismissal of the non-diverse defendant, plaintiff tried to pull a jurisdictional bait-and-switch: seeking leave to amend her complaint to add another non-diverse entity as a defendant. An entity she knew about at the time of filing her complaint but didn’t sue until the case had made its way to federal court and she was facing denial of her motion to remand.  Baseball is a game, litigation is not. The court did not entertain plaintiff’s gamesmanship. 

In In re Depo-Provera Products Liability Litigation, 2025 U.S. Dist. LEXIS 186000 (N.D. Fla. Sep. 22, 2025), the court was presented with an individual plaintiff’s motion to remand her case which she brought against the manufacturer of the drug and the local pharmacy where she filled the prescription. The removal argued that the pharmacy was fraudulently joined.  

Plaintiff’s first argument in favor of remand was that removal was improper under the forum defendant rule which provides that a case cannot be removed if any properly served and joined defendant is citizen of the state where the action is brought.  But since a fraudulently joined defendant cannot be “properly” joined, fraudulent joinder is an exception to the forum defendant rule.  Id. at *7-8.

Plaintiff next argued that joinder of the pharmacy was not fraudulent because she had a valid failure to warn claim. But the law is clear: “Illinois pharmacies have no duty to warn patients/consumers or doctors of the adverse effects of the prescription drugs they dispense, absent one narrow circumstance.” Id. at *9. The underlying rationale is that it is the doctor who knows the patient best and should be making prescription and treatment decisions, not the pharmacist.  The narrow exception to the rule, absent here, is when the pharmacy knows a customer is susceptible to adverse consequences of the drug—such as a known allergy or known contraindication. But the courts have made clear that pharmacists have no duty to investigate or learn about such conditions, only that if known they should act in accordance with that knowledge.  Id. at *9-10.  Here, not only did plaintiff plead no facts showing the pharmacy had specialized knowledge, the complaint alleged that plaintiff returned to her physician to administer the injectable drug. “Given these facts, there is no question that interjecting a duty to warn on the part of [the pharmacy] in this case could interfere with the prescribed treatment and disrupt the physician-patient relationship.”  Id. at *14.

Plaintiff next argued that her strict liability design defect claim was also viable against the pharmacy because Illinois law imposes liability on every entity in the distributive chain. To which the court responded:

After a thorough review of the case law on this issue, the [court] is convinced that Illinois law does not recognize a claim for strict liability design defect against a dispensing pharmacy for a prescription drug. . . . Indeed, under Illinois law, there is a decades-long recognition of the need to shield healthcare providers who ‘pledge[] to protect human life and health,’ in part by implementing a public policy that ‘dictates against the imposition of strict liability’ in order to avoid a diminution in those protections.   

Id. at *16-17 (citations omitted).

In other words, public policy dictates a “special standard” for prescription drugs that necessitates an exception to the general rule that would impose strict liability in the marketing chain. Id. at *18.  The policy exception has routinely been extended to pharmacies recognizing that holding a pharmacy strict liability for injuries allegedly caused by ingestion of the drugs it dispenses “would impose on the retail druggist the obligation to test, at its own expense, new drugs” and in turn the “costs to society which needs and values the pharmaceutical products sold by druggists, would be unduly high.” Id. at *19.

Accordingly, because Illinois would not recognize either a failure to warn or a strict liability action against the pharmacy, it was dismissed.  Thereby establishing complete diversity and proper federal jurisdiction. But plaintiff tried one more trick—moving to amend her complaint to add another non-diverse defendant, Planned Parenthood, at which plaintiff also received the drug and related treatment. 

Federal courts, under 28 U.S.C. § 1447(e), have the discretion to deny joinder of non-diverse defendants after removal. And thank goodness they do. Otherwise, we’d be watching a nonstop circus of plaintiffs dropping non-diverse defendants into complaints like surprise party guests. Adding non-diverse parties post-removal to manufacture a remand is forum shopping dressed up as due diligence.  The court’s discretion under § 1447(e) is guided by four factors: plaintiff’s motive, the timeliness of the request to amend, whether denying amendment will significantly injure the plaintiff, and any other “relevant equitable considerations.” Id. at *20-21.   

As to both motive and timeliness, pharmacies/health care providers aren’t exactly covert operatives. They don’t sneak under the radar. If you’re filing a product liability lawsuit about a prescription drug, you know where you filled the prescription. You were there.  In fact, in this case, plaintiff’s original complaint contains allegations about Planned Parenthood’s role in providing the drug to her, but she did not seek to name it as a defendant until 5 months after filing, 3 months after removal, and 1 month after defendant’s motion to dismiss.  Id. at *23.  Suspicious timing indeed.

Nor is plaintiff at risk of being significantly injured if amendment is denied. The statute of limitations has not run.  While perhaps not the most convenient, plaintiff could separately pursue her claims against Planned Parenthood in a parallel state court action. Id. at *24. The court found no other relevant equitable factors worthy of consideration and therefore denied the motion to amend. 

The decision is great on both Illinois pharmacy law and fraudulent joinder.  Now, let’s go Phils!