There is a reason the one-two punch – a jab followed by a cross – is one of the most common sequences in boxing. It’s effective. The boxer uses his lead hand to throw a jab which has two objectives – to assess the distance between the fighters and if done correctly to lift his
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
This post is not from the Reed Smith, Dechert, or Holland & Knight side of the blog.
We’re pretty sure no one teaches about MDL census registries in law school. They’re a relatively new creation, and we previously blogged about them here. Essentially, registries create a mechanism where plaintiffs’ counsel can park potential claims without paying a filing fee while records are collected to determine if the claimant can establish Rule 11 basics like product use and injury. Records are typically collected by a vendor—for which the MDL defendants pay half the costs. The benefit defendants receive is a commitment that, if the claim is ultimately filed, it has to be filed in the MDL or other federal court.Continue Reading More from the Zantac MDL – Census Registries and Enforcement of Forum Selection Certifications
Some personal injury plaintiffs will do almost anything to avoid federal court. And by “some,” we mean pretty much all. We freely subscribe to the idea that the plaintiffs’ bar is replete with bad motives on this issue. We are from the Dorothy Parker school of, “If you can’t find something nice to say about
We have had occasion over the years to opine on cases involving allegations against sales representatives who are present in the operating room—a not uncommon practice when medical devices are being used. While the practice is not uncommon, what is rare are instances where a sales representative participates in the surgery. Rare, but not non-existent. Where the line is drawn between presence and participation, and possibility liability or not, is extremely fact sensitive. And as the court in Owens v. Boston SCI Corp. concluded, in the absence of facts, conclusory allegations of participation are not enough. 2022 U.S. DIST. Lexis 212427, *7 (E.D. Mo. Nov. 23, 2022).
Plaintiff underwent surgery involving implantation of a pelvic mesh medical device. Plaintiff alleged complications following surgery and filed a lawsuit against the manufacturer alleging design defects and against one of the manufacturer’s sales representatives for failure to warn both plaintiff’s surgeon and plaintiff. The manufacturer removed the case to federal court alleging the sales representative, who was not diverse to plaintiff, was fraudulently joined. Plaintiff moved to remand.Continue Reading Sales Representative’s Presence in Operating Room Not Enough to Beat Fraudulent Joinder
Nerds such as your friendly neighborhood DDL bloggers read legal decisions with excitement. We hardly seem alone in that regard, at least lately. Over the past several weeks, SCOTUS issued a series of major opinions on wedge issues, engendering widespread feelings of triumph or despair or exultation or fury. The “least dangerous branch” looks plenty
Approximately 18 months ago we reported on C.D. California cases that silicone breast implant defendants managed to keep in federal court and then get dismissed with prejudice. We expressed delight with the opinions because the court’s discussions of fraudulent joinder and preemption were particularly insightful. No doubt another source of our delight was that the
There is no reasonable basis to remand Cazares v. Ortho El Paso, P.A., 2020 WL 4562231 (W.D. Tex. Aug. 7, 2020) because there is no reasonable basis for plaintiff’s strict liability claims against a hospital. And that is sufficient.
That, however, is not what the magistrate who first ruled on plaintiff’s motion to remand
We’re taking a timeout from our summer reading parade of baggy 19th Century novels. After gorging ourselves on Dickens, Dostoyevsky, Thackeray, Trollope, and Tolstoy, it was time for a palate cleanser. We kept Anna Karenina on the sideboard and picked up a slim volume of Bertrand Russell’s essays.
Analytic philosophy always left us cold. Perhaps
Plaintiffs often prefer to be in state court, and when we first started doing a lot of product liability litigation way back when, we were struck by how much time and effort plaintiffs spent trying to evade federal jurisdiction and litigating motions to remand to state court. We don’t wonder so much anymore. Jaded, we