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

Plaintiffs will go to great lengths to stay out of federal court, including naming local defendants against whom the plaintiffs have no real intention of pursuing the lawsuit with even a smidgen of seriousness. Sometimes that is called “improper joinder,” but we prefer the term “fraudulent joinder” because that more accurately captures what is afoot.

In some states (we’re looking at you, California) it is frightfully hard to win on fraudulent concealment removal where the plaintiff has joined an in-state distributor of a drug or medical device. In other states, defendants have more of a shot. Today’s case, Harris v. Zimmer Holdings, Inc., 2019 U.S. Dist. LEXIS 71025 (S.D.N.Y.

The last time we wrote about Flagg v. Stryker Corp., we thought it would be the last time we’d write about Flagg v. Stryker Corp. Pain and frustrated resignation oozed from Bexis’s keyboard as he wrote that a Fifth Circuit panel had ordered remand of the removed complaint, even though defendants had a solid basis for removal. Along with the manufacturers of the toe implant device that was the subject of the complaint, the Louisiana plaintiff had also sued his doctors for malpractice, and his doctors were also from Louisiana. The purpose, at least in part, seemed clear: to defeat diversity and keep the complaint in state court. But Louisiana law requires plaintiffs to exhaust the administrative procedures set out in the Louisiana Medical Malpractice Act (“LMMA”) before suing their doctors in court. And the plaintiff (admittedly) had not done so. So the non-diverse doctors were not proper defendants, and removal on the basis of diversity seemed appropriate. In fact, plaintiff never moved to remand, instead requesting a stay while he tried to complete the LMMA’s administrative procedures, a request that the district court denied.

On appeal, however, the Fifth Circuit panel addressed diversity jurisdiction sua sponte and held that it didn’t exist. As we discussed in our last post on this case, the panel noted that the LMMA had procedural “outs,” its administrative process wasn’t always a prerequisite to filing suit, and that it was reasonable to conclude that plaintiff could still win its medical malpractice claims even though they may have been filed early. With that, and little more, the Fifth Circuit ordered remand. As we mentioned, we thought that was the end of it.

We were wrong.


Continue Reading All Was Not Lost: Fifth Circuit Issues En Banc Decision Reversing Panel’s Earlier Remand Ruling in Flagg v. Stryker Corp.

Last week, the Judge in the Biomet hip implant MDL denied a plaintiff’s motion for remand, upholding Biomet’s fraudulent joinder argument based on Maryland’s “sealed container doctrine.”  Laughlin v. Biomet, Inc., 2016 WL 626514 (N.D. Ind. Feb. 17, 2016).  The plaintiff made defect claims against not only Biomet, Inc., the manufacturer, but also the local distributor of the device.  The purpose was clear.  The local distributor, like the plaintiff, was a Maryland citizen, and so its presence as a defendant would defeat diversity and prevent removal to federal court.

But distributors in Maryland have a defense to product liability claims under Maryland’s sealed container doctrine if they received the product in a sealed container, did not know and could not reasonably have known of the defect, and did not manufacture, design or alter the product.  Id. at *2 (citing Md. Code Ann., Cts. & Jud. Roc. §5-405(b)).  So, when Biomet removed the case to federal court, it submitted a declaration from the distributor with testimony establishing all these elements of the sealed container doctrine.  Id. at *3.  And that was enough.


Continue Reading Biomet Hip Implant MDL Judge Upholds Fraudulent Joinder Removal Based on Sealed Container Doctrine

Here are a couple of non-litigation related matters that we thought our readers need to know about.

First, the FDA.  We’ve pointed out before that the FDA’s “intended use” regulations for drugs (21 C.F.R. §201.128) and devices 21 C.F.R. §801.4) both contain the following potentially disturbing language:

[I]f a manufacturer knows, or has knowledge of facts that would give him notice that a device introduced into interstate commerce by him is to be used for conditions, purposes, or uses other than the ones for which he offers it, he is required to provide adequate labeling for such a device which accords with such other uses to which the article is to be put.

This language has the potential, if the FDA wanted to, to allow the prosecution of a drug or device manufacturer for an “adulterated”/”misbranded” product (for not having “adequate labeling”), merely because that manufacturer KNEW ABOUT off-label use of its products – forget promotion (truthful or otherwise). Fortunately, the FDA generally has not read this language literally.  Instead it requires prior agency approval of warnings about risks peculiar to off-label uses (we discussed that here).


Continue Reading The FDA Tiptoes – and Congress Splashes Into – the 21st Century

A recent pelvic mesh case in the District of Maryland, Sullivan v. Calvert Memorial Hospital, No. PJM 14-118, Memorandum Opinion (D. Md. July 30, 2015), offers an interesting and useful take on federal jurisdiction when plaintiffs name local doctors as co-defendants.  You know the drill.  In order to manipulate the forum and avoid removal jurisdiction in a case against an out-of-state product manufacturer, plaintiffs will sometimes join a local doctor as a co-defendant.  One response could be to remove the case to federal court on the basis that the local doctor was fraudulently joined, a strategy that is legally sound and often successful when dealing with intermediaries in the chain of distribution, such as distributors and pharmacies.  Those kinds of defendants do not owe independent duties to plaintiffs and have zero involvement in the design, manufacturing, and labeling of drugs and medical devices (setting aside the potentially vexing issues presented by 3D-printed medical devices, but that is a topic for another day.)  Their citizenship therefore should be disregarded.

Fraudulent joinder with doctors is more complicated because doctors obviously do owe duties of care to their patients, so we tend to approach cases involving doctors also from the point of view of fraudulent misjoinder.  Under fraudulent misjoinder, the defendant argues that the federal court should disregard the citizenship of the local or non-diverse co-defendant because the claims against that defendant are distinct from the product liability claims against product manufacturer.  The case most often cited as the landmark for fraudulent misjoinder is Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir. 1996)), and as the argument goes, product liability claims on the one hand are based on facts and law different from medical malpractice claims on the other hand.  It is as though two different lawsuits were improperly joined under one caption, which gives the district court discretion to disregard the citizenship of the non-diverse or local doctors and retain federal diversity jurisdiction.  (We discussed severance of malpractice claims from product liability claims here, although not in the context of federal jurisdiction.)

Some courts have been slow to adopt fraudulent misjoinder, sometimes citing Tapscott as a minority rule and often ignoring Tapscott altogether.  And that is where Sullivan v. Calvert comes in.  In Sullivan, the plaintiff’s surgical team allegedly left a piece of a catheter in the plaintiff’s bladder during a procedure to insert a transvaginal sling.  Op. at 2.  The Maryland plaintiff therefore sued multiple Maryland healthcare providers alleging medical malpractice for leaving the catheter behind, but she also separately pleaded product liability claims against the transvaginal sling manufacturer.  Id. at 3.


Continue Reading Using Severance Under Rule 21 To Preserve Removal Jurisdiction