This post is from the Cozen side of the blog only.

The Third Circuit gets fraudulent joinder—as if the name of the doctrine isn’t enough to give it away. It refers to, quite simply, joining a defendant in a lawsuit for a purpose other than pursuing liability against that defendant. And so the Third Circuit, getting it, has established a standard for determining fraudulent joinder that considers more than simply whether the plaintiff’s complaint states a colorable basis for a claim against the defendant. It also considers whether the plaintiff has a good faith intent to actually pursue that claim. Earlier this month, we posted on a decision by a district court in the Third Circuit applying this standard to deny a plaintiffs’ remand motion.

Since then, in fact just last week, this standard once again played a pivotal role in a determination by a court in the Third Circuit—this time the Zoloft MDL court—that a plaintiff had fraudulently joined a defendant to defeat diversity jurisdiction. In Re: Zoloft (Sertraline Hydrochloride) Prods. Liab. Litig., 2017 U.S. Dist. LEXIS 94953 (E.D. Pa. June 20, 2017). In that case, California plaintiffs sued Pfizer entities, none of which were California citizens, in a California state court. That complaint would ordinarily have been removable to federal court based on diversity jurisdiction, but plaintiffs also sued a California defendant, the (possible) distributor McKesson. In theory, McKesson’s presence as a defendant would defeat diversity jurisdiction. But the defendants nonetheless removed the case to California federal court, from whence it was swiftly transferred to the Zoloft MDL in the Eastern District of Pennsylvania.

Plaintiffs filed their remand motion in that court, which sits quite snugly inside the Third Circuit. In considering plaintiffs’ motion, the court began by laying out the Third Circuit standard:

In order to establish fraudulent joinder, a defendant must prove that there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendants or seek a joint judgment.

2017 U.S. Dist. LEXIS 94953, at *5-6 (emphasis added) (citing Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990)). The court focused on the second half of the standard: plaintiffs’ real intentions for suing McKesson. Importantly, the court had the history of the Zoloft litigation to consider. A large mass tort, maybe even a not-so-large one, inevitably creates a litigation history that will highlight litigation maneuvers and counsel that have used them.

Here, the litigation history was determinative. The same plaintiffs’ counsel, along with other plaintiffs’ counsel, had sued McKesson in other Zoloft cases and then not seriously pursued discovery from McKesson, at times even dropping it as a defendant:

[T]he Court has been made aware of no instance in which any of the numerous Zoloft plaintiffs have propounded meaningful discovery on McKesson in either state or federal court, even though some cases have gone to trial. This failure to seek discovery includes other cases brought by Plaintiffs’ counsel. The lack of discovery requests directed towards McKesson casts doubt on Plaintiffs’ intent to pursue claims against McKesson.

Even more significantly, the plaintiffs in numerous Zoloft cases have dismissed claims against McKesson both before and after the Court granted summary judgment in favor of Pfizer and another Defendant and the plaintiffs appealed to the Third Circuit. One of these cases had been filed by Plaintiffs’ counsel in this case.

2017 U.S. Dist. LEXIS 94953, at *9.

The court saw a pattern. It rejected plaintiffs’ arguments that the Federal Rules of Civil Procedure establish no discovery standard upon which to determine whether a party was properly joined, holding that, regardless, the court may consider relevant information from the history of the litigation to determine plaintiffs’ intent in suing McKesson. Id. at *10.

The court then coupled the historical failures of plaintiffs and counsel to pursue McKesson after naming it as a defendant with the lack of specific, particularized allegations against McKesson in the complaint to determine that McKesson had been fraudulently joined. With that, the court held that it, in fact, did have diversity jurisdiction over the case:

Plaintiffs here have asserted non-specific claims against McKesson, Plaintiffs’ counsel has in separate Zoloft actions failed to propound discovery on McKesson, and, most notably, Plaintiffs’ counsel has outright dismissed McKesson as a defendant in other state and federal Zoloft cases. The Court thus concludes that Plaintiffs lack good faith intent to prosecute their claims against McKesson. The Court finds McKesson to be fraudulently joined in this action, and therefore does not take McKesson into account during its diversity jurisdiction analysis. Without McKesson, there is complete diversity between Plaintiffs and Defendants, and no dispute that the amount in controversy exceeds $75,000. The Court thus has jurisdiction over this case.

Id. at *10-11.

Obviously, this standard, along with the growing list of decisions applying it to reject remand motions, is a useful tool available to defense lawyers involved in mass torts, particularly in the Third Circuit. Allegations that are sufficient to state a colorable claim against a non-diverse defendant may not be enough to save a case from removal. The litigation history matters. Did plaintiffs actually pursue discovery against the non-diverse defendant? Did plaintiffs dismiss the non-diverse defendant late in the litigation? Did plaintiffs’ counsel ever depose the non-diverse defendant or subject it to the lengthy stream of depositions that they no doubt took of the employees and executives of the defendant that was the real target? Did plaintiffs pursue summary judgment against the non-diverse defendant when they pursued it against the real target? Has plaintiffs’ counsel used this tactic in other mass torts and a court called them out on it? And so on. We like the Third Circuit’s standard because it takes account of reality, and we expect to see more decisions adopting and applying it.

The Eastern District of Pennsylvania recently entered a fraudulent joinder order that is worth highlighting because it applies a fraudulent joinder standard that we think should apply more broadly. It has always puzzled us why courts are hesitant to find non-diverse or local defendants fraudulently joined.  You know what we mean.  A plaintiff from State X files state-law claims against a defendant from State Y in some place other than State Y.  That is a removable case, except that plaintiffs will frequently name a bogus defendant from either State X or the forum state to defeat the defendant’s right to remove.

That is fraudulent joinder, and it is a type of forum manipulation that we see all too often. Sure, we remove the cases anyway, and federal judges sometimes agree with us that the non-diverse or forum defendants are fraudulently joined, leading them to retain jurisdiction.  But more often than not, they don’t, depending on the facts and the applicable standards

The facts and the applicable standards. That is why we like the order in Bentley v. Merck & Co., No. 17-1122, 2017 WL 2311299 (E.D. Pa. May 26, 2017).  In Bentley, ten plaintiffs from Pennsylvania, Nevada, and Missouri sued a New Jersey pharmaceutical company in Pennsylvania state court. Id. at * 1.  That’s removable based on diversity of citizenship, right?  Well, to avoid federal court, the plaintiffs also sued a company employee who happened to reside in Pennsylvania.  The problem was that the plaintiffs had no claim against the local employee and had no intention of actually pursuing a claim against her.

That played into the fraudulent joinder standard in the Third Circuit, where fraudulent joinder exists if

“there is no reasonable basis or colorable ground supporting the claim against the joined defendant,” or no real intention in good faith to prosecute the action against the defendant or seek a joint judgment.

Bentley v. Merck & Co., 2017 WL 2311299 at *2 (citing Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990); In re Briscoe, 448 F.3d 201, 216 (3d Cir. 2006); Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 32 (3d Cir. 1985)).  Focus on the last part, the part that the court underlined—“no real intention in good faith to prosecute the action” against the non-diverse or forum defendant.  The first part is similar to standards that some other circuits apply, i.e., whether there is a reasonable basis for the claim.

But the “no real intention to prosecute” standard cuts right to the core—are the plaintiffs genuinely seeking redress from the non-diverse or forum defendant, or are they just manipulating the forum? It is a fair question to ask, and while courts in other circuits will consider such evidence, the Third Circuit’s standard makes it express and places it front and center.

What then happened in Bentley?  It turns out that the same plaintiffs’ attorney had sued the same defendants in federal court, too.  But in the federal case, called Juday, he voluntarily dismissed the Pennsylvania employee. Id. at *2.  That is to say, when the presence of the Pennsylvania employee made no difference to the forum, the plaintiffs did not care about her and let her go.  They kept her in in the cases only where her presence purportedly would defeat diversity, which lay bare exactly what their intentions were.  The district court viewed it this way:

We note that in Juday which was initially filed in the federal court, the presence of [the employee], a Pennsylvania citizen, would not defeat this court’s diversity jurisdiction since the plaintiffs were citizens of Indiana.  Thus, her dismissal had no effect on federal subject matter jurisdiction.  In contrast, if plaintiffs’ arguments against fraudulent joinder and against removal of cases with an in-state defendant are correct, her continued presence as a defendant in these ten cases would require remand.

. . . .

We find that the only reason plaintiffs have joined [the employee] as a defendant is to defeat this court’s subject matter jurisdiction and that they have no real intention in good faith to prosecute these actions against her to judgment. We reach this compelling finding in light of the stipulation of dismissal of [the employee] in Juday and the plaintiffs’ retention of [the employee] in the other similar cases where the same counsel represents all the plaintiffs.  Plaintiffs’ attorney conceded this inconsistency at oral argument and offered no explanation for it . . . .

Id. at *3.  The evidence in this case thus was particularly stark, and counsel candidly acknowledged that the plaintiffs had no intention of pursuing judgments against the individual defendant since they had a large corporate defendant already in the case.  On that record, the district court had only one justifiable path—denying the plaintiffs’ motion to remand.

We note that proving fraudulent joinder would not require evidence this strong. As in Bentley, plaintiffs tend to fraudulently join the same defendants over and over again, and they never make any genuine effort to proceed to judgment against them.  That history is evidence in the next case that the plaintiffs have “no real intention in good faith to prosecute the action.”  Voluntary dismissals and candid concessions of counsel would seal the deal, as they did in Bentley.  But less should be sufficient.  The order in Bentley is the right result for the right reason, and the standard applied is one that courts should apply more broadly.

Today’s guest post is from friend-of-the-blog Sarah Bunce, a partner at Tucker Ellis.  It’s about the 8th Circuit finally having before it aspects of the effects of the current, bizarrely applied Missouri joinder and venue rules (see here) on federal jurisdiction.  Not only is it about time, though, it may be past time.  By the time that the 8th Circuit gets around to deciding the case, either (1) the Missouri Supreme Court might have overturned the current reading of those rules, (2) the United States Supreme Court may held the exercise of personal jurisdiction allowed by those rules unconstitutional, or (3) the Missouri legislature might have rewritten the rules to eliminate the basis for the current bizarre judicial rule constructions.  But, in any event, that there’s finally movement on another piece of the litigation puzzle.

As always, our guest poster is entitled to 100% of the credit, and any blame, for what follows.

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While most of us wait anxiously for the Supreme Court to hear the issue of litigation tourism at the end of this month in Bristol-Myers Squibb Co. v. Superior Court of California, the Eighth Circuit got a sneak peek on April 5 when it heard oral argument in Robinson v. Pfizer Inc.  Although the Eighth Circuit may well defer decision until the Supreme Court decides the issue, the background of this case and its potential impact on the future of litigation tourism in the Eighth Circuit—particularly in the Eastern District of Missouri—is worth noting.

For those of us who have attempted to remove multi-plaintiff “litigation tourist” complaints from the City of St. Louis to the Eastern District of Missouri, the Eastern District’s response is all too familiar. With the exception of the faint glimmer of hope from Judge Webber in Addelson v. Sanofi S.A., 2016 WL 6216124 (E.D. Mo. Oct. 25, 2016), the court has been rather hostile to such removals, swiftly remanding case after case for lack of subject matter jurisdiction.

The decision in Robinson v. Pfizer Inc. is no exception.  There, sixty-four plaintiffs (only four of whom were Missouri residents) joined in filing suit against Pfizer Inc. in the City of St. Louis alleging injuries as a result of ingesting Lipitor.  As any defendant would do, Pfizer removed the case to the Eastern District of Missouri.  Pfizer argued, under Ruhrgas, the court should first decide personal jurisdiction and dismiss the out-of-state plaintiffs for lack of personal jurisdiction, which would result in complete diversity between the remaining parties.  Pfizer also argued that even if the court considered subject matter jurisdiction first, there would be diversity in light of the fraudulent joinder of the out-of-state plaintiffs.

In granting plaintiffs’ motion for remand, the Robinson court would hear none of it.  Skipping directly to the issue of subject matter jurisdiction, the court (incorrectly) characterized Pfizer’s argument as one based on fraudulent misjoinder rather than fraudulent joinder.  Ignoring entirely the issue of whether there was personal jurisdiction over defendant to support each individual plaintiff’s claims, the court instead viewed the “real issue” to be whether plaintiffs’ claims were properly joined under Rule 20.  Finding the joinder of all sixty-four plaintiffs’ claims proper, the court ordered the case remanded to state court for lack of subject matter jurisdiction.

As those of us who have tried (and failed) to successfully remove multi-plaintiff complaints to the Eastern District of Missouri are keenly aware, this is where the story usually ends. Because these remand orders are not appealable, we’re stuck in an infinite loop of removing cases and being remanded, hoping that the next time will be the time the court decides personal jurisdiction first or thoughtfully considers the fraudulent joinder doctrine (or maybe stays the case pending transfer to an MDL).

But that’s where things get interesting in Robinson.  Plaintiffs (maybe a little too greedily, hindsight being what it is) sought attorney’s fees and costs under 28 U.S.C. § 1447(c), which grants courts the authority to order payment of costs and fees incurred as a result of the removal.  The Robinson court obliged.  Citing nine other cases involving Pfizer and referencing “at least twenty-five other cases” in the district that had been remanded for lack of subject matter jurisdiction, the court determined that, in light of the “repeated admonishments and remands,” Pfizer had no objectively reasonable basis for seeking removal and plaintiffs were entitled to costs and expenses.  Robinson v. Pfizer Inc., 2016 WL 1721143, at *4 (E.D. Mo. April 29, 2016).

This was just the hook that Pfizer needed. While the remand order was not appealable, the sanction order was.  So Pfizer appealed.  In challenging the sanctions and defending its right to remove as objectively reasonable, Pfizer cited Daimler and Goodyear and argued that the Eastern District of Missouri was repeatedly and consistently ignoring those holdings.  Thus, while the removal itself technically may not be before the Eighth Circuit, in the course of ruling on the sanctions issue the Eighth Circuit will have the opportunity to consider the due process merits involved.

And the oral argument demonstrated that the issue of sanctions cannot be divorced from the underlying issue of the removal of multi-plaintiff complaints involving out-of-state plaintiffs. This is because to decide whether the court abused its discretion in awarding costs and fees, the Eighth Circuit necessarily must decide if it was objectively reasonable for Pfizer to challenge the joinder of these plaintiffs and the lack of personal jurisdiction over the out-of-state plaintiffs’ claims.

The Eighth Circuit panel recognized that Pfizer might have had better luck with its argument in other jurisdictions, and on two occasions the panel questioned why the district court had cited only other Eastern District authority and not any authority from other jurisdictions. (Indeed, there is much contra authority outside of the Eastern District of Missouri. See, e.g., Simmons v. GlaxoSmithKline LLC (In re Zofran (Ondansetron) Prods. Liab. Litig.), 2016 WL 2349105 (D. Mass. May 4, 2016); Liggins v. Abbvie Inc. (In re Testosterone Replacement Therapy Prods. Liab. Litig.), 2016 WL 640520 (N.D. Ill. Feb. 18, 2016).)  The Eighth Circuit panel also seemed attuned to the underlying issue of allowing joinder to substitute for personal jurisdiction in these multi-plaintiff complaints, referring to it as “osmotic jurisdiction.”

At the end of rebuttal Pfizer requested that the court not only reverse the sanctions order, but also correct the error of law on personal jurisdiction perpetuated in the Eastern District of Missouri—expressly asking the Eighth Circuit to confirm that when looking at personal jurisdiction, it must be done plaintiff by plaintiff. If the Eighth Circuit accepts the invitation, it may be the final nail in the coffin for litigation tourism in the Eastern District of Missouri.

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