Fraudulent Misjoinder

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Photo of Eric Hudson

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.Continue Reading Even the Darkest Night Will End and the Sun Will Rise

Photo of Andrew Tauber

As we recently noted when discussing snap removals, corporate defendants sued by individuals are generally at a disadvantage when forced to litigate in state rather than federal court. We know this and plaintiffs know this. It is why plaintiffs commonly file suit in state court, why corporate defendants typically remove cases to federal court…

Photo of Steven Boranian

We have always wondered why judges are hesitant to sever the claims of plaintiffs who never should have joined their claims together in the first place.  You know what we mean—multiple plaintiffs, sometimes dozens of them, who join their claims together in one complaint based only on the allegation that they used the same or…

Photo of Stephen McConnell

Diversity jurisdiction has been on our minds a lot lately. Last week, we wrote about a plaintiff who unsuccessfully tried to steer under the $75,000 amount in controversy requirement. As John Adams said, “facts are stubborn things,” and the existence of medical bills in excess of $75,000 refuted the plaintiff’s remand motion and permitted the…

Photo of Eric Alexander

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

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This is a guest post, by Jaimee Farrer, an associate at Reed Smith.  We’re always looking for new twists that can help in efforts to remove cases to federal court, and the case Jaimee describes does that, relying on an MDL standing severance order to short circuit what might have been lengthy and complex joinder arguments.  As always, our guest posters should get full credit (and any blame) for their analyses.  With that said, take it away Jaimee.

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We’re used to seeing judges split the baby when it comes to ruling on Daubert motions, for example.  Courts frequently allow an expert to testify about some of his/her opinions while excluding his/her other opinions, thereby giving both sides a little of what they want.  But remand decisions are usually black and white with a clear winner and a clear loser.  Either a case gets to remain in federal court and the defendants are the happy victors or the case gets remanded to state court, leaving the defendants to sulk and bemoan their fate.  But in today’s opinion, In Re Benicar (Olmesartan) Products Liability Litigation, 2016 WL 4059650 (D.N.J. July 27, 2016), which comes courtesy of the Benicar MDL Court, both scenarios happened simultaneously . . . well at least sort of.

Seventy-nine plaintiffs joined in filing a Complaint in the Circuit Court of the City of St. Louis, Missouri, against five defendants, two Daiichi Sankyo affiliates and three Forest Laboratories affiliates.  2016 WL 4059650 at *1-2.  In their Complaint, the plaintiffs alleged generally that they were injured by drugs developed and marketed by the defendants. Id. at *1.  The defendants removed the action to the Eastern District of Missouri, claiming diversity jurisdiction. Id.  The defendants concurrently moved to stay the case pending MDL transfer, which was granted. Id.  Plaintiffs predictably moved to remand, arguing lack of complete diversity. Id.  There things stood for several months while MDL transfer occurred. Id. at 2.  After the transfer, the stay was lifted, allowing the District of New Jersey to rule on the plaintiffs’ remand motion. Id.

At this point, in a multi-plaintiff case, we usually see arguments about fraudulent joinder, fraudulent misjoinder, or alternatively about personal jurisdiction. See here and here, for examples.  Not this time.  In ruling on remand, the Court conducted a cursory analysis of the citizenship of the parties and determined that thirty-five of the seventy-nine plaintiffs were citizens of the same state where at least one of the defendants has its principal place of business or is incorporated. Id. at *2.  That’s usually bad news for defendants.Continue Reading Guest Post – Benicar MDL Court: An Unconventional, but Relatively Simple, Remand Decision

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In this post we happily bring to your attention three more favorable resolutions where pharmaceutical defendants faced with multi-plaintiff misjoined complaints utilized the limits on general personal jurisdiction imposed by Daimler AG v. Bauman, 134 S. Ct. 746 (2014).  The misjoined complaints were sliced, diced, and ultimately dismissed in federal court.  We’ve discussed this technique before, here, here, and here, but it bears repeating – this is a way for defendants to defeat CAFA-skirting plaintiff misjoinders while avoiding the morass of “fraudulent joinder.”

We haven’t rated Oklahoma particularly highly as one of the other sides’ favored jurisdictions, but apparently parts of it are – at least in propoxyphene-related litigation. The three substantively  identical decisions, Guillette v. PD-RX Pharmaceuticals. Inc., 2016 WL 3094073 (W.D. Okla. June 1, 2016); Manning v. PD-RX Pharmaceuticals Inc., 2016 WL 3094075 (W.D. Okla. June 1, 2016); and Nauman v. PD-RX Pharmaceuticals Inc., 2016 WL 3094081 (W.D. Okla. June 1, 2016), all involved complaints filed by multiple plaintiffs with nothing in common except allegations of injury due to products containing this drug.  Multiple defendants that made multiple products were also involved.

Usually, complaints of this nature are structured so that at least one plaintiff is a resident of the forum state, but not here. “Admittedly, no Plaintiff is an Oklahoma resident.”  E.g., Guillette, 2016 WL 3094073, at *1 (since the three opinions are substantively identical, we’ll cite only this one).  That fact makes things a little easier for defendants (no need to sever and possibly remand the in-state plaintiff), but, as we’ve discussed in our prior posts, is in no way dispositive.Continue Reading Bauman Jurisdictional Limits Dismember Three More Misjoined Multi-Plaintiff Complaints

Photo of Eric Alexander

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

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