We sometimes start our posts with disclaimers about how we do not know all the details of a case, perhaps supplemented by a little digging on the internet, or that we are not experts in some substantive area.  We start this post with disclaimers that we (and our respective firms) are not involved in the case we are writing about (or the related cases mentioned in it) and we are not specialists in antitrust or patent law (although others at our respective firms are).  We do know misjoinder, forum shopping, and judicial smackdowns when we see them, though.  We typically encounter misjoinder when a bunch of individual plaintiffs from various places are listed on a single caption because they each are pursuing individual claims over injuries allegedly caused by the same or similar products.  As long as at least one plaintiff is from where they have sued and at least one plaintiff is from the defendant’s home state, they all get to stay where their lawyers chose to sue, at least if they get their way.  (Set aside CAFA for now.)  When confronted with a motion to sever—or another motion that implicates the issue—they argue that joinder is perfectly appropriate because all cases against the manufacturer of product(s) are really about the same set of facts—i.e., the company designed a dangerous product and marketed it without adequate warnings of its risks.

Forum shopping is the other half of litigation tourism, as we often call it—like picking the campground for the family reunion.  The lawyer’s reason for picking the court is typically not revealed, just that a plaintiff gets to pick and their choice should be afforded deference.  We have yet to see a lawyer say they picked the venue where they felt they had the most influence with the bench and/or juries apt to put extra zeros on the damages in a case against an out-of-state defendant.  That the plaintiff lawyers, rightly or wrongly, consider where to file and how to package their clients as part of their desire to maximize the total recovery by verdict or settlement—and their fees—should not be a shock to anyone.  But we might suppose that the government lawyers trying to enforce the Federal Trade Commission Act and the Clayton Act might be above such base considerations.

Continue Reading Misjoinder and Forum Shopping by the Government

Spring seems to be finally here in the mid-Atlantic region and we could think of nothing better to usher in spring than some personal jurisdiction and procedural wrangling.  Every year, we see new cases with multiple plaintiffs thrown together filed in places the plaintiff lawyers want to litigate.  Laws are enacted and big cases are decided that should curtail this practice, yet the cases keep popping up like longer-lasting and worse-smelling crocuses.  The options available to defendants to break up, remove, transfer, or dismiss some or all of these multi-plaintiff state court actions have grown, but the plaintiff lawyers keep coming up with arguments for why their cases should stay put in the form and forum of their choosing.  The case we are discussing today rejects one of the major recent arguments from the plaintiff lawyers to try to impose personal jurisdiction where it should not exist—“pendent jurisdiction.”  Combined with the recent defense win on “jurisdiction by consent,” 2016 is starting out pretty well on this front.

Continue Reading MDL Decision Debunking the Pendent Jurisdiction Fallacy Post-Bauman

If Sunday night’s Academy Awards show is propelling you towards your nearest movie theater to catch up on the nominated flicks, put The Revenant on the top of your list if you have not already seen it.  Most of you probably know that there is a startling scene in The Revenant where a bear suddenly attacks the character played by Leonardo DiCaprio.  (Leo acted truly surprised and dismayed.  No surprise there; he is usually set upon by supermodels.  Their claws are slightly less sharp.)  It is an amazingly scary, overwhelming moment, leaving viewers shuddering and wondering ‘how-did-they-do-that?’

Perhaps every movie would benefit from a random bear attack. In The Big Short, wouldn’t it be swell if a grizzly paid a visit to an investment bank conference room just as a commercial mortgage backed securities transaction was about to close?  Matt Damon had a tough time making it on his own on Mars, but think how much more challenging it would have been if a mama bear interrupted his gardening.  There was certainly a lot of tension during the final prisoner exchange in Bridge of Spies, but it would have upped the ante if the East German snipers had to contend with ursine mischief. Nor need the benefits of beardom  be confined to this year’s Oscar nominees.  If we can colorize Citizen Kane or It’s a Wonderful Life, why can’t we insert bear attacks as Kane utters “Rosebud” or when Jimmy Stewart is about to take a sucker punch from a bar bouncer?  Surely, a bear hug would have enlivened the slower moments in The King’s Speech or A Beautiful Mind?  Or DiCaprio could have met that bear earlier, whilst scampering around the decks on the Titanic.  The mind reels.

Continue Reading Ninth Circuit Holds that Therapist was Fraudulently Joined

As we noted yesterday, Halloween may be behind us, but the scary decisions just keep on coming.  Just about a month ago, we blogged about pending legislation (H.R. 3624), known as the “Fraudulent Joinder Prevention Act of 2015.”  Today we blog about a case that demonstrates why that legislation is needed.

The case is Rosbeck v. Corin Group, PLC, 2015 U.S. Dist. LEXIS 145621 (D. Mass. Oct. 26, 2015).  Plaintiff filed suit in state court in Massachusetts alleging he suffered injury as the result of the implantation of a hip resurfacing system.  Plaintiff sued the manufacturers of the implant for negligence, breach of warranty, and consumer fraud.  Plaintiff also sued the hospital at which the surgery was performed for breach of warranty.  Id. at *6.  The manufacturers, being diverse defendants, removed the case to federal court alleging that the non-diverse hospital was fraudulently joined.  Id. at *2.  Plaintiffs moved to remand.

Under First Circuit law, on a motion to remand, the manufacturing defendants had the burden of proving that plaintiff does not have a “reasonable possibility” of recovery against the non-diverse hospital.  Id.  at *7. Defendants asserted three reasons why they met that burden:  (1) Massachusetts doesn’t recognize a claim for breach of warranty against a hospital for supplying a medical device as part of treatment; (2) the claim against the hospital is preempted; and (3) the claim against the hospital is barred by the stature of limitations.  Id. at *10.

Continue Reading Remand Run Amok

We learned a new word the other day while watching TV:  Autoantonym. An autoantonym is a word that means one thing, but it also means the opposite.  The word is its own antonym, and it is remarkably easy to think of examples once you set your mind to it.  The verb “dust” means to spread dust (“Bexis likes how the corner bakery dusts its pumpkin muffins with powdered sugar”). And it also means to remove dust (“Our mother judges people by how well they dust their living rooms”).  The word “fast” means moving along quickly (“Usain Bolt is really fast”).  And it also means staying firmly in one place (“The tree is holding fast against the strong wind”).  Many people think “inflammable” is an autoantonym, but it is not. It means only one thing—easily set ablaze. The antonym is “fireproof.”
Our autoantonym for today is “sanction,” which means both to punish and to permit.  Long before we learned that there was such a thing as an autoantonym, we stopped using the word “sanction” in briefs unless it was crystal clear from the context what we meant, owing to the word’s inherent ambiguity. We mention this today because two different district judges from the Southern District of Illinois decided two motions to remand on the same day last week, each presented with similar facts, and they somehow came to diametrically opposed conclusions.  That is to say, one “sanctioned” the plaintiff’s joinder of a local pharmacy to defeat removal jurisdiction, resulting in an order remanding the case; and the other “sanctioned” the plaintiff’s joinder of a local pharmacy to defeat removal jurisdiction, resulting in an order retaining jurisdiction.
Go figure.  In Peoples v. Novartis Pharmaceuticals Corp., No. 15-cv-0670, 2015 U.S. Dist. LEXIS 122790 (S.D. Ill. Sept. 15, 2015), the plaintiff sued a number of drug manufacturers in St. Clair County, Illinois, a forum in which plaintiffs often want to be.  To that end, they named an Illinois-based pharmacy as a co-defendant, thus purporting to block removal with the presence of a local defendant.  Id. at **1-2.  The defendants removed the case to the Southern District anyway, and when the plaintiff raised subject matter jurisdiction with the court, the defendants argued that the local pharmacy was fraudulently joined and that its Illinois citizenship should be
disregarded.  Id.

Continue Reading Illinois Federal Court “Sanctions” Fraudulent Joinder of Pharmacies

We confess that among the many benefits of being a DDL blogger, one of our favorites is our ability to have a little fun.  Let’s face it, legal writing can sometimes be a bit boring.  Try as we might, it tends toward being dry.  Even when railing against grave injustices, we need to be organized and strategic; we need to include often mundane facts and details; we need to discuss dense, arcane legal precedent.  But here, we can compare a legal decision to the most recent episode of the Walking Dead.  We can interweave sports loyalties with discussions of local court trends.  And we’ve never had to hide our bias – if we don’t like something, we tell you.

We imagine judges sometimes get bored too.  And that leads to opinions such as Justice Scalia’s glib dissent in PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001) – funny even for those who don’t like golf.  Another classic is Noble v. Bradford Marine, Inc., 789 F. Supp. 395 (S.D. Fla. 1992) in which the judge peppered his decision with lines from the movie “Wayne’s World” — holding that defendant’s “most bogus” attempt at removal is “not worthy” and finding that the defendant must “party on” in state court. Sections of the opinion are labeled “Hurling Chunks” and “A Schwing and a Miss.”  And there is any number of examples of decisions written in verse.

So, when we were reading the case for today’s post – granting a plaintiff’s motion to remand and rejecting defendants’ fraudulent joinder argument – we knew we wouldn’t be celebrating the result.  But we can tip our caps to the prose.  Not often do you find this smattering of words and phrases in a single decision:  “checkered history,” “potential hitch,” “time bomb,” “hangover,” and “tyranny of labels.” It’s not a poem and it doesn’t read like a mystery novel, but it made the read a little more enjoyable.  And that’s about the only thing that made it enjoyable.

Continue Reading Not So Atypical Sales Rep Behavior

Do we say often enough how much we dislike off-label promotion theories of liability?  It has its own section on the blog and on a quick skim through you will find traditional products liability cases, qui tam False Claims Act cases (and the subsidiary First Amendment litigation), securities fraud litigation, criminal actions, and third-party payer suits.  There are probably others, but we stopped scrolling.  The point is that just about everyone who wants to sue anyone in the pharmaceutical and medical device world has at some time tried to use off-label use and promotion to get the job done.

The fact that what is and is not permissible off-label promotion remains a question doesn’t help matters.  Really, it is what drives the vast scope of off-label litigation. And one of the primary problems is the confusion between truthful and untruthful off-label promotion. When courts, in our opinion, get it wrong is when they refuse to recognize that distinction. Simply because something is considered off-label promotion (addresses a use or indication not on the product’s approved labeling) doesn’t make it false, misleading or untruthful.  This is where we think the court got tripped up in Hricik v. Stryker Biotech LLC, 2015 U.S. Dist LEXIS 11714 (E.D. Pa. Jan. 30, 2015).

Plaintiff brought products liability claims against the manufacturer of a spinal fusion device and two of the manufacturer’s sales representatives.  The reps are residents of Pennsylvania and therefore, their presence in the suit defeats diversity jurisdiction unless they were fraudulently joined.  The defendant manufacturer made that very argument.

Continue Reading Off-Label Promotion Allegations Trounce Fraudulent Joinder

If anyone gave out prizes for the most incomprehensibly named multi-district litigation, the one currently proceeding as “In re Fresenius Granuflo/Naturalyte Dialysate Products Liability Litigation” would be right up there.  Rarely have we encountered a case name with four words in a row that, without a dictionary, we didn’t know what they meant.  Basically, this is product liability litigation about two dialysis solutions (Granuflo and Naturalyte) over alleged serious adverse reactions related to effects on blood chemistry.

This MDL is currently pending in the District of Massachusetts.  Just after the new year the Fresenius MDL (that’s all the designation really needed) made some news with a quartet of decisions.  We’ll describe them for you briefly.

First Decision

In In re Fresenius Granuflo/Naturalyte Dialysate Products Liability Litigation, ___ F. Supp.3d ___, 2015 WL 44589, at *1 (D. Mass. Jan. 2, 2015), the court denied remand to a batch of California plaintiffs.  As is so often the case in removal/remand, there was a lot of gamesmanship going on.  The defendant proved, to the court’s satisfaction, that the principal place of business of the target defendant, Fresenius, USA, had been its Massachusetts for almost a decade, since a merger.  Id. at *2.  It satisfied the relevant “nerve center” test (see here for more on that) for personal jurisdiction.

Continue Reading Fresenius Potpourri

Here’s another guest post by Reed Smith’s own Kevin Hara, this time about a recent Texas case holding that health care providers involved in clinical trials are still protected by a state medical malpractice statute, and thus were fraudulently joined.  While we are of two minds about such statutes (making it harder to sue HCPs increases litigation against our clients), since HCPs are our clients’ clients, and thus the heart of their businesses – and we’re defense lawyers by temperament – in the end we come out in favor of less liability generally.  This is an interesting use of fraudulent joinder that could well apply to the definition of “health care provider” under similar statutes in other states.

As always, our guest posters deserve all the credit and any blame for the contents of their posts.

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When it comes to Texas, one might never know based on its jurisprudence that the state motto, and indeed the state’s moniker, is derived from “Tejas,” a Native American term for Friendship.  At least from a defense perspective, the Lone Star State at times seemed mighty inhospitable; after all, Texas invented that awful “heeding presumption” back in 1972, touching off a Reign of Fire, as states followed suit, adopting a variety of feeding presumptions.  It also allowed personal injury recovery under its consumer protection statute, made a big deal of Restatement Second §402B, and was the last of the large states to adopt the learned intermediary rule.  While we’re at it, let’s not forget the decision that would never die, the Murthy case, making the worst decisions list in consecutive years in 2011 and 2012, giving us not just one opinion to lament, but Two for the Money.

But we’re forgiving, and won’t “mess with Texas” too much.  Although it took until 2012, with some help from Bexis, for the Texas Supreme Court to finally adopt the learned intermediary doctrine, deciding that it was A Time to Kill an awful decision from 2010 whose name should have been Mud.  Texas adopted the Third Restatement, which should kill the heeding presumption, and even if it doesn’t, that presumption now excludes prescription drugs and medical devices, at least forcing it into Submission.  The Legislature amended the DTPA to eliminate personal injury damages, and we haven’t heard a peep from §402B in a while, and this section’s Failure To Launch into widespread acceptance is a good thing.  Texas Daubert decisions have been outstanding.  Not only that, a lot of excellent Reed Smith practitioners are based in our Houston office.

Texas has other positive attributes as well, including being the birthplace and home of Matthew McConaughey, and of baseball standout Nolan Ryan, who we believe, despite numerous accolades, remains underrated because of his somewhat pedestrian won loss record (which for pitchers reveals more about the team and much less about the individual).  Seriously, seven no-hitters?  Ryan pitched in an era where starters routinely went the distance, and they were their own closers; we urge you to check out his career innings pitched, hits allowed, complete games, and well, the strikeouts speak for themselves. No disrespect to Madison Bumgarner, who was otherworldly in the 2014 World Series, but who has 6 complete games in his career.  Ryan had an incredible 222, including several years where he had more than 20.  We realize that people smarter and more knowledgeable than we are will correctly we might add, mention that Ryan also walked many hitters and never won the Cy Young. That’s the beauty of sports.

And then there’s ZZ Top and Janis Joplin and Beyonce.

But we digress.  Back to the legal issues.  It would be remiss not to note that Texas also has some very favorable statutes, including Civil Practice and Remedies Code 82.007, which provides a rebuttable presumption of nonliability for manufacturers and prescribers in pharmaceutical product liability actions involving failure to warn for FDA approved warnings, and 82.008, which provides a presumption of nonliability for compliance with government standards.  See Tex. Civ. Prac. & Rem. Code §§ 82.007(a)(1) and 82.008.  We were concerned that a recent Southern District of Texas decision would a la Murthy, run roughshod over state law like the TCU Horned Frogs in an 82-27 rout of Texas Tech this year or UCLA in a 66-3 drubbing of Texas in 1997 (the Longhorns’ worst loss ever).  Fortunately, we were pleasantly surprised.

Continue Reading Guest Post – When It Comes To Fraudulent Joinder In Texas, Let’s Hail The Glory Daze And Just Keep Winning

What the deuce is it about today?  The date is made up of two 2’s.  Today is the 76th birthday of two of our favorite, though couldn’t-be-more-different, actors:  Derek Jacobi (I, Claudius/Last Tango in Halifax) and Christopher Lloyd (Back to the Future/Taxi).  This day in 1978 saw the papal inauguration of John Paul II.  And, after much hand-wringing and soul-searching, today we have decided to drop two TV shows from our viewing rotation:  Homeland and Masters of Sex.  Sorry, Showtime, but those programs jumped a shark swimming in a pool of implausibility. (Boozy, sexy, sometimes thrilling implausibility, to be sure, but implausibility nonetheless.)

It’s only fitting that today we address a pair of stinkpot cases. Fronczak v. DePuy Orthopaedics, Inc., 2014 U.S. Dist. LEXIS 146347 (M.D. Fla. October 14, 2014) and Wier v. DePuy Orthopaedics, Inc., 2014 U.S. Dist. LEXIS 146353 (M.D. Fla. October 14, 2014) were decided on the same day by the same judge, involve the same issues, and offer the same lame fraudulent joinder analysis.

The plaintiffs in both cases (represented by the same attorneys) alleged injuries from the implantation of artificial hip prostheses manufactured by DePuy and distributed by Bayside Orthopaedics.  The plaintiffs asserted claims for negligence, negligent failure to warn, strict liability failure to warn, strict liability, and breach of warranty.  The cases were filed in state court in Sarasota, Florida.  The inclusion of Bayside as a local defendant wrecked diversity. Nevertheless, DePuy removed the cases to federal court and argued that Bayside had been fraudulently joined.

Continue Reading M.D. Fla. Double Trouble on Fraudulent Joinder