As we head into the longest night of the year, we wade into an MDL decision addressing fraudulent misjoinder. We previously posted about some unfavorable happenings in the Philips CPAP MDL, and today’s decision continues that unfortunate trend. In re Philips Recalled CPAP, Bi-Level PAP, & Mechanical Ventilator Products Litigation, 2025 WL 3534807 (W.D. Pa. Dec. 10, 2025). But as we reach the winter solstice this weekend, we know that the days will get longer, the sun will shine brighter, and we’re sure to see some positive developments more to our liking.
The decision involves the unusual combination of medical device and environmental exposure claims against different defendants. The complaint alleged that exposure to ethylene oxide through a CPAP device caused plaintiff’s acute myeloid leukemia and, ultimately, death. But the complaint also claimed that the plaintiff lived near a manufacturing facility that emitted ethylene oxide, and that exposure to those emissions contributed to the development of the disease and death. The CPAP defendant was diverse; the environmental emissions defendants were not. Philips (the diverse, CPAP defendant) removed and claimed the defendants in the environmental claims were fraudulently misjoined.
The MDL court applied the law of its own Court of Appeals (the Third Circuit) and began with an overview of the difference between fraudulent joinder and fraudulent misjoinder (we’ve covered that in our posts on fraudulent misjoinder here, here, here, and here). In the Third Circuit, fraudulent joinder exists if “there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, and no real intention in good faith to prosecute the action against the defendant or seek a joint judgment.” Id. at *3. Like fraudulent joinder, fraudulent misjoinder also focuses on the argument that a non-diverse defendant was invalidly included as a party to defeat diversity jurisdiction. But fraudulent misjoinder is not based on the claims against the non-diverse defendant being specious. Instead, it is based on the claims being improperly joined:
When a court is faced with a claim of “fraudulent misjoinder,” it is not asked whether the claims that would defeat federal jurisdiction are fictive or are properly pled. The presumption of the doctrine is that the claims are properly pled; they seek relief from properly named defendants based on a properly alleged claim. Instead, the argument is that the claim that defeats federal jurisdiction should not have been joined with the claim that—were it pled alone—would have permitted federal jurisdiction.
Id. at *4 (quoting Alvarado v. Sweetgreen, Inc., 712 F. Supp. 3d 393, 406 (S.D.N.Y. 2024)) (internal citations omitted). In other words, “the fraudulent misjoinder doctrine recognizes that plaintiff may have valid claims against the non-diverse defendant (i.e., that complete diversity of citizenship is lacking), but argues those claims should be severed and remanded because there is no real connection between those claims and the claims the plaintiff asserts against the defendant seeking removal.” Id. (quoting Saviour v. Stavropoulos, 2015 WL 6810856, at *6 (E.D. Pa. Nov. 5, 2015)). Upon finding fraudulent misjoinder, courts can sever the non-diverse parties and retain jurisdiction over the diverse parties. Id. at *5.
The court then conducted its analysis under Pennsylvania’s joinder rule—since the question of proper joinder was a question of state law. Applying Pennsylvania’s permissive joinder statute, the court concluded that the plaintiffs’ decision to join the claims was “not wholly insubstantial and frivolous” and declined to find fraudulent misjoinder. Id. at *6.
Apart from its fraudulent misjoinder argument, Philips also requested that the court sever and remand the environmental claims but retain the claims against Philips as part of the existing MDL. The court recognized that courts have the authority to sever claims against non-diverse defendants to otherwise keep a case in an MDL. See Joseph v. Baxter International, Inc., 614 F. Supp. 2d 868 (N.D. Ohio 2009) (denying motion to remand with respect to a pharmaceutical company involved in an MDL but severing and remanding claims against nondiverse, dispensable medical providers); accord Mayfield v. London Women’s Care, PLLC, 2015 WL 3440492, at *4 (E.D. Ky. May 28, 2015); DeGidio v. Centocor, Inc., 2009 WL 1867676, at *1 (N.D. Ohio June 29, 2009). These courts reasoned that non-diverse medical provider defendants were not necessary parties pursuant to Rule 19, were not indispensable under Rule 21, and that the prejudice to the pharmaceutical defendant in having to litigate the claims outside the MDL outweighed any prejudice to plaintiffs resulting from severance.
Although the court took a negative view of this approach, it conducted an analysis to determine if the non-diverse defendants were indispensable and, if not, what prejudice they would experience if severed. The court concluded that the non-diverse defendants were not indispensable but, because the MDL was largely resolved, the benefits to Philips of remaining in the MDL were outweighed by the potential prejudice to plaintiffs if the court severed the claims:
As this stage of the MDL, considering the few cases remaining, there may be few common issues other than general causation among those plaintiffs. Extensive discovery has already taken place and is available to all plaintiffs who comply with the amended stipulated protective order. The benefit of keeping this case in the MDL to coordinate common discovery is largely moot, as that benefit has been achieved.
Id. at *12. That reasoning is important, as it suggests Philips may have been successful in seeking severance of the non-diverse environmental exposure defendants had the MDL been at an earlier stage. The court also recognized that Philips could seek severance upon remand and, if successful, could still pursue the federal forum. We’ll take that as at least a glimmer of hope, and that reasoning may be helpful in other cases. Here’s to brighter days ahead.