We just returned from four days of depositions in Roswell and Carlsbad, New Mexico. We were pleased to cross this state off of the “not yet visited” list on our bulletin board. But it seems that we found the least picturesque cities in the entire state. At this time of year, the 75-mile drive from Carlsbad to Roswell is entirely beige and barren.   No foliage, except for scrub brush. No buildings. No slopes. That is why the “Welcome to Roswell” mural on the side of Highway 285 was an especially delightful surprise.   You can see it and read about it here.   Not so delightful, on the other hand, was the Roswell waitress who told us that we “look good for our age.” Made us think, half-seriously, about wrinkle removal.

Which brings us to today’s pair of cases.   Allow us to explain. Four or five mass torts ago, we were in the early stages of a mass tort and were trying to remove as many state court cases as we could.   Because we represented a forum defendant, we did this by removing a case when we learned about the complaint but before we were officially served. We called these “wrinkle removals,” because they capitalized on a “wrinkle” in the language of 28 U.S.C. § 1441(b)(2), which provides that a case cannot be removed on the basis of diversity if any “properly joined and served” defendant is a citizen of the forum state. In its 2018 decision in Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147 (3d Cir. 2018), the Third Circuit resolved a split of authority in favor of permitting such pre-service removals. Some of you may have learned about this removal technique from the Blog’s posts. You can read them here, including our Breaking News Post about the Encompass decision.

The first of today’s cases, Anderson v. Merck & Co., Inc., 2019 WL 161512 (D.N.J Jan. 10, 2019), involves 104 cases filed in New Jersey state court, alleging injuries caused by the defendant’s shingles vaccine. The defendant, a citizen of New Jersey, removed the cases to the District of New Jersey before it was officially served with the complaints. The plaintiffs moved to remand, and remand was denied pursuant to Encompass.  Stay tuned – more on this in a minute.

In the second case, Breitner v. Merck & Co., Inc., 2019 WL 316026 (D.N.J. Jan 2019), eighty-nine individual plaintiffs were joined in a single complaint again alleging injuries by the same defendant’s shingles vaccine. Five of the plaintiffs were New Jersey residents and the other eighty-four were not. Before the defendant was officially served, it removed the case on the basis of diversity jurisdiction, arguing that the five non-diverse plaintiffs were fraudulently misjoined. The court explained that “fraudulent misjoinder” occurs when a plaintiff “attempts to frustrate a defendant’s right to remove by joining a non-diverse party in violation of the applicable joinder rule.” Breitner, 2019 WL 316026 at *2 (citation omitted). The analysis is twofold:   the court first determines whether the plaintiffs’ claims were misjoined under Fed. R. Civ. P. 20, and, if so, whether the joinder was “egregious.”

In Breitner, the court answered both questions in the affirmative. First, it held that the claims were misjoined because, although all of the plaintiffs alleged that they were injured by the same drug, “the injuries manifested at different times, with each Plaintiff likely suffering different complications and different unknown recurring health issues.” Id. at *4. In addition, there was no allegation that all of the plaintiffs received vaccinations “from the same lot number, at the same time, [or] by the same health care providers.” Id. Second, the court held that the misjoinder was “egregious” because the complaint was structured specifically to defeat diversity jurisdiction. The court severed the claims of the five non-diverse plaintiffs and remanded them back to state court. That left eighty-four plaintiffs and complete diversity but left the question of the forum defendant rule for the court to resolve. Citing Anderson, the court held that removal was proper because the defendant, though a citizen of New Jersey, removed the case before service was effected. Remand denied. As we continue to struggle to keep mass tort cases in federal court, we like both layers of this decision, and we will keep you posted on similar cases. Meanwhile, we hear Santa Fe and Taos are pretty, and we are angling for depositions there.

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

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.


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

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

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

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

This post is from the non-Reed Smith side of the blog only.

We often struggle for a clever title or catchy phrase on which to hang our posts.  Hence, the frequent sidebars into pop culture, sports, history, and music.  But today, the court handed us our opening on a silver platter – permitted gamesmanship v. prohibited conduct.  We’ve been watching a lot of soccer getting ready for the World Cup, so the first thing that came to mind was “diving.”   All sports have their version of drawing a foul, but soccer raises it to a whole different level.    If you aren’t familiar, diving in soccer is where a player throws himself to the ground, sometimes feigning injury, to exaggerate the amount of contact by his opponent.  If successful, the “diver” could earn a free kick or penalty kick.  To some extent, dives are part of the game or at least the gamesmanship.  But, if the acting isn’t quite up to snuff, the diver could find himself with a yellow card for prohibited conduct.

Well, lawyers are people too after all.  We are all looking for that extra advantage; that edge in our favor.  No one is immune from trying to the game system at some time.  The question is when do you cross the line?  That was precisely the way the court conducted its analysis on removal in a recent decision from the Avandia MDL.  In re Avandia Marketing, Sales Practices and Prods. Liab. Litig., 2104 U.S. Dist. LEXIS 67675 (E.D. Pa. May 15, 2014).

At issue were motions to remand 53 multi-plaintiff cases originally filed in state court in California.  Here is what else you need to know about these cases:

  • The 53 complaints are on behalf of over 3000 plaintiffs;
  • No single complaint has more than 100 plaintiffs;
  • Each case was brought against GSK (a Delaware corporation) and McKesson, a distributor and California corporation;
  • Plaintiffs reside all over the country, but at least one plaintiff in each case  is a resident of California; and
  • In eight cases, at least one plaintiff is a resident of Delaware.

Id. at *1-3.  Permitted gamesmanship or prohibited conduct?

Plaintiffs’ first argument was that the lack of diversity defeats removal because McKesson and at least one plaintiff in each case are residents of California.  Defendants raised the fraudulent joinder of McKesson in 2008 in response to earlier filed remand motions and at that time the court ruled that it “could not find that McKesson had been fraudulently joined.”  Id. at *7.  The court also noted in its prior decision that “to survive a motion for summary judgment, plaintiffs would need to conduct sufficient discovery to establish that individual plaintiffs had used Avandia distributed by McKesson.”  Id. at *10.  However, in the ensuing 5 years, no plaintiff sought any discovery of or any recovery from McKesson.  Id. at *7.  So, defendants renewed their argument that McKesson was fraudulently joined because plaintiffs had “no real intention in good faith to prosecute the action” against McKesson.  Id.  This time the court agreed.  There were some last minute attempts by some plaintiff’s counsel to serve discovery in response to defendants’ argument, but upon review the court concluded that

the discovery sought will not generate any information
about the Avandia distribution process, from which [plaintiffs’ counsel] could attempt to establish that McKesson distributed the Avandia used by its clients. . . . Although these cases are not at the summary judgment stage yet, they are mature enough for the Court to find a lack of genuine intent to proceed with claims against McKesson. The Court may thus disregard McKesson for purposes of determining whether the Court has jurisdiction. Accordingly, the Court holds that the forum defendant rule does not bar removal of these actions, and there is complete diversity between the California plaintiffs and the properly joined defendant, GSK.

Id. at *10-11.  So, for the 45 cases without a Delaware plaintiff, the court’s decision was – prohibited conduct.  It may be enough to name a non-diverse defendant initially, but if you don’t pursue them, fraudulent joinder may be resurrected.  In mass torts where discovery can go on for years, this is a not insignificant opportunity for defendants to keep an eye on.

The court then turned to the 8 cases which involved at least one Delaware plaintiff.  Because GSK is a Delaware corporation, diversity does not exist in those cases unless plaintiffs were found misjoined.  Here the court concluded that it must apply California’s joinder rules which have been “interpreted liberally.”  Id. at * 13.  And while the court felt it was a “close call,” it wasn’t willing to say plaintiffs were misjoined under California law.  On this question then, the decision was – permitted gamesmanship.  So, unless these cases qualified as a “mass action” under CAFA, they were going back to state court.

CAFA (the Class Action Fairness Act) allows mass actions to be removed when “monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact.”  Id. at *17.  This isn’t the first court to be faced with an attempt to “game” the CAFA system  (see our posts here), but their assessment of what is really going on is too good not to share:

Plaintiffs’ counsel very much would like their clients’ cases to remain in the California courts, and the question of whether this Court has jurisdiction is close precisely because counsel have vigorously and skillfully sought to evade CAFA through strategic pleading and filing. Here, guided by the plain language of the statute, plaintiffs deliberately filed multiple, similar suits, each on behalf of fewer than one hundred plaintiffs, and they do not explicitly propose to try the claims set forth in the separate complaints jointly. No one can seriously doubt that the plaintiffs’ lawyers structured these cases to avoid federal jurisdiction. There is no sensible, case-management reason that, for example, [plaintiffs’ counsel] filed 33 cases on behalf of 2,008 plaintiffs. It would be a remarkable coincidence if there really were 33 distinguishable categories of cases, none of which happened to have as many as 100 plaintiffs. But the Court need not feign naïveté: plaintiffs’ counsel candidly admitted that they followed “the road map that Congress gave us when they enacted CAFA. Basically, they said if you [want] to deal with the hassle of filing multiple complaints, as long as there are fewer than 100 claimants, then you can avoid federal jurisdiction under CAFA. So we did that.”

Id. at *17-18.

The question for the court is whether despite plaintiffs’ counsel’s evasive pleading tactics, the separate lawsuits should be combined for purposes of satisfying CAFA’s numerosity requirement.  The linchpin for this and other courts that have considered the issue is whether plaintiffs proposed a joint trial of the individual cases.  Defendants argued that plaintiffs implicitly proposed a joint trial by filing the cases in California where Avandia cases are consolidated and “coordinated through bellwether trials.”  Id. at *19.  The coordination through trial as opposed to only through pre-trial proceedings has been decisive in other courts.  Distinguishing those cases where it was found joint trials had been proposed so as to satisfy CAFA, however, the Avandia court found potential coordination wasn’t quite enough:

In the abstract, this Court accepts the basic logic of
the argument that by filing these cases in California with knowledge that there was a pending [coordinated proceeding], the plaintiffs impliedly proposed a joint trial, but GSK has failed to demonstrate that these cases will necessarily by operation of law be swept into the [coordinated proceeding]. Plaintiffs have not proposed that their cases be tried together, nor given any assent (implied or explicit) to an action by the [coordination] court that would consolidate these cases for trial. Therefore, at this juncture, the Court cannot find that plaintiffs’ lawyers have proposed a joint trial with more than 100 plaintiffs.

Id. at *28.  We can’t help but read between the lines.  How this reads to us is:  the contact was close, the acting was pretty good and while we are pretty sure this is a dive, plaintiffs are going to get a free kick anyway.  On CAFA removal, the decision is – permitted gamesmanship.

And it’s not really reading between the lines when the court ends its decision like this:

Strict rules can be gamed. Jurisdictional rules are strict. It is no surprise that litigants seek to game jurisdictional rules. Here, plaintiffs are gaming the rules and winning in part. This Court cannot rewrite jurisdictional rules, and if it is unjust that artful pleading puts certain cases out of this Court’s reach, the remedy is for Congress to amend CAFA.

Id. at *31.  A yellow card for Congress.

Not to over-generalize, but older people have been known to break their hips.  Based on anecdotal evidence, broken hips hurt more than stepping on a broken bottle or a sea urchin during a tropical vacation.  Based on more than anecdotal evidence, product liability plaintiff lawyers prefer state courts over federal courts.  This is because of various factors that, they think, make the state courts more likely to impose pain, and impose a lot of pain, on the defendants.  We have posted on many cases discussing the strategies used by product liability plaintiffs to stay out of federal court.   These cases often come up in the posture of a motion to remand by the plaintiff after the defendant has removed under 28 U.S.C. § 1446.  If the case can be transferred to an MDL court—potentially well-versed in the anti-removal strategies—before a ruling on the motion to remand, then the chance of the case staying put tends to go up.

In Millman v. Biomet Ortho., Inc., No. 3:13-CV-77 RLM-CAN (N.D. Ind. Dec. 10, 2013), and Akin v. Stryker Corp., Civ. No. 13-1811 (DWF/FLN) (D. Minn. Dec. 12, 2013), we have decisions on motions to remand from two different MDL courts on two different cases involving two different hip replacement implantable medical devices.  We also have two different results, although both are good.

Continue Reading It’s Getting Icy Out, So Don’t Fall and Hurt Your (Non-Diverse Defendant in a) Hip (Replacement MDL)

A favorite tactic of plaintiffs’ lawyers is to join together dozens of completely unrelated plaintiffs’ into one complaint. We see it all the time. Counsel lump their clients together in mass complaints that contain general allegations regarding the product, but nary a detail about the individual plaintiffs or their alleged injuries. They also choose fora that more often than not bear no relation to the parties or the controversy and are chosen by counsel for strategic purposes.

We can see why plaintiffs’ attorneys do this, but it does not make it right. By massing plaintiffs together, they give their cases an impression of gravitas, even if few (or none) of the plaintiffs have valid claims. Mass complaints also save them money because they pay one filing fee instead of many, preserving their war chests while simultaneously depriving the courts of funding they need to provide access to justice.

But the most invidious aspect of the mass complaint is the blatant forum manipulation in which plaintiffs’ counsel engage. Where complete diversity exists, it is a non-forum defendant’s statutory right to remove cases to federal court, so long as other requirements for removal jurisdiction are met. But if plaintiffs’ counsel can find just one plaintiff whose citizenship is the same as one defendant, he or she can combine that one plaintiff’s claims with the claims of others into one complaint, purportedly destroying complete diversity and making the complaint appear to be non-removable. Never mind that every other plaintiff’s citizenship is diverse from the defendant’s and that removal jurisdiction can and should exist over all their claims. Also never mind that keeping claims in state court means that they will not be transferred to federal multidistrict litigation. When MDLs exist, they usually have been requested by plaintiffs, and manipulating the forum to avoid MDL transfer is both hypocritical and wasteful of resources that parties and courts invest in those proceedings.

Continue Reading Eastern District of New York Gets It Right on Fraudulent Misjoinder

Here’s a little more on fraudulent joinder, which for those who don’t recall frequently involves a product liability plaintiff suing a non-diverse local distributor of the product to negate the  diversity that exists between the plaintiff and manufacturer and keep the case in state court.  It’s an issue that is often at the center of the first big battle in single cases, or that can shift the balance of cases pending in federal versus state courts in mass torts.
While defendants initially raise this issue in their removal papers, the battle won’t begin, if at all, until the plaintiff files a motion to remand to state court.  We’ve already addressed here and here considerations that then arise, including whether the court will apply federal or state standards on the remand motion and, if federal, whether it will be a TwIqbal-like standard.
Today we’re addressing a tactical consideration: whether to give the court an affidavit from the distributor.  Earlier this year in Johnson v. DePuy Orthopaedics, Inc., 2012 U.S. Dist. LEXIS 74450 (N.D. Oh. May 30, 2012), the court in the hip implant MDL considered a remand motion centered on whether a non-diverse local distributor was fraudulently joined.  The dispositive issue – as is often the case – was whether the distributor satisfied the “seller’s exception” to liability, which is a state-law exception that gets distributors out of a case if they can identify the product’s manufacturer and, depending on the state, meet certain other requirements.  If they can, however, a plaintiff can still keep the distributor in the case by sufficiently alleging or showing that the distributor knew about the defect.
The Johnson court, applying a TwIqbal-like standard, denied remand and kept the case in federal court.  The plaintiffs’ allegations to negate the seller’s exception failed to parse the wrongful acts supposedly performed by the distributor, offering only general, non-specific allegations that the distributor sold, promoted and labeled the product.  Id. at *9-11.  Interestingly, the court noted that it could have considered supplemental affidavits as part of the motion.  Id. at *5.  Of course, it turned out that the defendants didn’t need them.
Fast forward six months, however, to the same litigation and the same court considering another remand motion involving a distributor and the seller’s exception.  See Hilgers-Luckey v. DePuy Orthopaedics, Inc., 2012 U.S. Dist. LEXIS 164069 (N.D. Oh. Nov. 16, 2012).  This time the court ordered a remand.  What was different?  Well, this plaintiff, at least in the eyes of the court, made particular allegations, claiming that the distributor – Premier – knew certain facts that supported plaintiff’s defect theory:
A. Premier, at the time of the insertion of the ASR Prosthesis into the Plaintiff, knew one or more of the following:
(i) that very high revision rates were being reported in patients with the ASR Prosthesis;
(ii) that patients were experiencing high levels of metal particles or ions entering into surrounding tissues from the ASR Prosthesis;
(iii) that patients were experiencing deterioration of body tissues from metal particles or ions from the ASR Prosthesis; and
(iv) that patients were experiencing high levels of metal particles or ions from the ASR Prosthesis entering into the bloodstream through which they were distributed throughout various parts of the body.
Id. at *10-11.  To the court, this was enough to “withstand a challenge to the viability of the pleadings” and keep Premier in the case, thereby eliminating diversity and requiring remand.
Now, we don’t believe that these allegations are much, if at all, better than those in the Johnson case.  They simply take the allegations underlying plaintiff’s defect theories – the type that arise in every mass tort – and claim that the distributor knew of them.  Those strike us as boilerplate.  They can be made about any distributor in any mass tort.
But our disagreement with the court’s reasoning is not our takeaway from this decision.  Our concern is a tactical one.  The court said, just as it did in Johnson, that the parties could have provided supplemental affidavits.  Id. at *5.  There’s often good reason to do so.  The stakes are high – federal or state court – and the task is often not difficult.
Distributors, who generally have no meaningful knowledge of alleged defect or labeling deficiencies, want to get out of these litigations as much as we want them out, and they are often happy to provide affidavits.  Ideally, it would say something like this: the distributor knew nothing about the alleged defect, had no involvement in the design, manufacture, marketing or labeling of the product, and, instead, simply received the product fully packaged and labeled after the manufacturer had independently developed it.  We’ve written about such successful affidavits in the past.  Such an affidavit may expose the plaintiff’s allegations as boilerplate and re-focus the court on a TwIqbal-like standard that requires more from them, something they often can’t provide.

Now, we know that there could have been any number of good reasons why such affidavits weren’t used in the Hilgers-Luckey case.  This is, after all, the very same defense that has successfully fought off remand motions in this same litigation.  This is not a critique of the defense, but rather a tactical reminder of what may work in other cases.  Providing the court with appropriate affidavits and reminding it of the TwIqbal-like standards to which the plaintiffs should be held can be a powerful opposition to a motion to remand – all the more so as the allegations by the plaintiff in the complaint become more particular.