Fraudulent Misjoinder

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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

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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.…

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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)

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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

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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

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Thanks to Jim Fraser at Venable for passing along a nice fraudulent misjoinder finding in the Fosamax MDL, Welsh v. Merck Sharpe & Dohme Corp., C.A. No. 11-3045, slip op. (D.N.J. April 3, 2012).  Welsh originated in Missouri state court, and demonstrates the lengths to which plaintiffs will go if given free reign to…

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Remember Gresham’s law? If you ever suffered through Econ 101 in college, chances are you do. That’s the proposition that “bad money drives out good.” More generally, what Gresham’s law is all about is that if there’s a choice between doing something the “good” way and doing the same thing by way of some “bad” shortcut, if the shortcut is allowed, everybody will go that way. “Good” can be enforced through everything from legal sanctions (don’t commit fraud) to moral suasion (signs in the wilderness stating that “cutting switchbacks damages the trail”).
But if “bad” is not only allowed, but rewarded, then “bad” will definitely replace the corresponding “good.”
Well, Tom Gresham, meet mass torts.
The Eighth Circuit handed down a stinker of a ruling yesterday in In re Prempro Products Liability Litigation, No. 09-1205, slip op. (8th Cir. Jan. 6, 2010) (hereafter “PPLL”). As the name indicates, it arose from the Prempro MDL. But the identity of the drug hardly matters – or even whether the product was a drug. It could be any mass tort, as far as we’re concerned.
That’s also convenient because Dechert is now involved in the litigation involving these products, so we have to steer away from anything concerning the merits of that litigation.
So what happened in PPLL? It’s the latest round in the endless tactical tug of war between plaintiffs who prefer to litigate in state court (elected judges, more home cooking, less strict rules on everything from pleading to class actions to experts) and defendants who prefer to litigate in federal courts (lifetime tenured judges, more resources = more opinions, stricter rules, etc.). It involves something called “fraudulent misjoinder.”
What’s that? Well, under the rules, every plaintiff is supposed to file his/her/its lawsuit individually. That means pay the court’s filing fee (one way the judicial branch supports itself), and have jurisdiction – importantly, diversity jurisdiction – determined by who the parties are. (Aside for non-lawyers: “diverse” = plaintiff and defendants are citizens of different states; “non-diverse” = citizens of same state on both sides of the “v.”).
There are exceptions. Federal Rule 20 governs “permissive joinder.” It provides that plaintiffs or defendants may be “joined” in the same lawsuit if there’s a claim (called a “right to relief”) asserted either by more than one plaintiff or against more than one defendant:  (1) that involves (called “arising out of”) “the same transaction, occurrence, of series of transactions or occurrences” and (2) “any question of law or fact common to” all plaintiffs or defendants “will arise in the action.”
“Misjoinder” is any joinder of parties that’s in violation of Rule 20 (or an equivalent state court rule).Continue Reading Gresham’s Lawyers

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We’ve done so many posts on removal – for you non-lawyers that means moving cases that were originally filed in state court into federal court – that even we have a hard time keeping track. Most of our posts have reviewed individual cases that, one way or another, we’ve learned about. There are 29 posts…

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