Pharmaceutical And Medical Device Litigation

Part One of this article described some general principles regarding the concept of fraudulent joinder and the patchwork of conflicting definitions and procedures for analyzing fraudulent joinder that has developed in the Circuit Courts. This conclusion offers strategies for defeating fraudulent joinder.

Suggested Strategies

Since the burden on a defendant to demonstrate fraudulent joinder is typically heavy and inferences are resolved in favor of the plaintiff, claims of fraudulent joinder have not been overwhelmingly successful. Nevertheless, a defendant can increase the likelihood that the district court will find fraudulent joinder and retain jurisdiction over the case. Below are a few general strategies to consider when challenging the joinder of a local sales representative:

Is Removal Worthwhile?

Determine whether removal based on fraudulent joinder is worthwhile for your client.

Before you decide to remove a case, you should consider whether it is worth the effort to do so. First, keep in mind that in a jurisdiction that adheres to the “no possibility of recovery” test for fraudulent joinder, the chances are quite high that the district court will remand the case, and the costs of removal litigation can be substantial. If you need to interview sales representatives, physicians, and other individuals to prepare evidence to defeat the joinder, the costs of the removal could be on par with those for a motion for summary judgment.

Second, in considering the cost of the removal, you also should consider whether the benefits of being in federal court outweigh the risks that the case ultimately is remanded by the district court and you will be forced to pay the plaintiffs' costs in responding to the removal papers. By federal statute, where the removing party lacks an objectively reasonable basis for seeking removal, an “order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. '1447(c). See Martin v. Franklin Capital Corp., 546 U.S. 132, 126 S. Ct. 704, 163 L. Ed. 2d 547 (2005). Therefore, it may not be worthwhile to engage in laborious and costly satellite litigation related to fraudulent joinder, particularly if the plaintiff's claims against the sales representatives appear to be sufficient to overcome removal, and the potential prejudice or bias against the defendant in the state court does not appear significant.

Third, if after considering these potential costs, it is deemed advisable to press ahead with the removal, remember that an adverse ruling is likely the end of the road for removal since a remand order normally is not reviewable on appeal. Therefore, before deciding to remove a case, it is important that you know your jurisdiction and the fraudulent joinder test it applies, research prior decisions by the district court to see how it has handled claims of fraudulent joinder in the past, evaluate the overall likelihood of success, and advise the defendant of each of the risks and benefits of trying to remove the case.

Finally, a less financially tangible consideration is the effect of the removal on your relationship with opposing counsel. As noted above, the district court is not going to consider the subjective motive of the plaintiff or plaintiff's counsel in bringing the claim(s) against the sales representative, but your removal papers will likely be viewed as an accusation. Depending on the particular case and opposing counsel, this could create conflict among counsel, make the litigation excessively contentious, and further increase litigation costs.

If after considering each of these potential downsides to removal, you and your client still feel it is worthwhile to proceed with the removal, then you will need to determine how to challenge the fraudulent joinder most efficiently and effectively.

Legally Inadequate Cause of Action

Demonstrate that the cause of action against the sales representative is legally inadequate under applicable state law.

Perhaps the least complicated and most inexpensive method for demonstrating fraudulent joinder is to show that the claim asserted against the sales representatives in the Complaint is either legally barred or is not recognized under applicable state law ' issues that typically are raised as affirmative defenses to the Complaint, and which do not necessarily require significant factual investigation.

There are a number of potential affirmative defenses that could be used to demonstrate that the claim is legally inadequate under the applicable state law. For instance, if plaintiff's claim against the resident sales representative is clearly time-barred under the applicable statute of limitation or repose or is pre-empted under federal law, it would be unfair for the plaintiff to avoid removal simply by suing the resident sales representative. Similarly, under the learned intermediary doctrine, a plaintiff should not be able to prevail against a sales representative for an alleged failure to warn if the sales representative does not owe a legal duty to warn the patient of the risks associated with a product. See Catlett v. Wyeth, Inc.,
379 F. Supp. 2d 1374, 1381 (M.D. Ga. 2004). But see, e.g., Salazar v. Merck & Co., Inc., No. 05-445, 2005 U.S. Dist. LEXIS 27776 (S.D. Tex. Nov. 2, 2005). Likewise, if the plaintiff asserts a strict liability claim against a salesperson on the grounds that the salesperson is a “seller” in the chain of distribution of the product, but state law does not recognize the cause of action, you may succeed in getting the claims against the salesperson dismissed in connection with the removal. See e.g., Thompson v. Medtronic, Inc., 2006 U.S. Dist. LEXIS 91846, at *8 (D. Nev. Dec. 7, 2006) (sales representative was not a “seller” because plaintiff purchased product directly from the manufacturer and sales representative was fraudulently joined).

Aside from the issue of whether the cause of action is legally barred or is not recognized under state law, you also may be able to show that the plaintiff has not provided sufficient factual support in the Complaint to sustain the cause of action. The most obvious example of this is a state fraud claim. Since fraud typically has heightened pleading requirements, you may be able to show that the fraud claim cannot survive dismissal because it has not been pled with sufficient particularity under applicable state law. See, e.g., Grennell v. W. Life Ins. Co., 298 F. Supp. 2d 390, 400 (S.D.W.V. 2004) (finding plaintiff's allegations failed to satisfy the particularity requirements of West Virginia Rule of Civil Procedure 9(b)).

As outlined below, you also may be able to show through affidavits, declarations, or deposition testimony that the allegations set forth by the plaintiff in support of the claims against the sales representatives are improper.

Extrinsic Facts and Evidence

When allowed, pierce the complaint with extrinsic facts and evidence to demonstrate that plaintiff cannot prevail against the sales representative.

While the district court usually is cautioned not to analyze the merits of the plaintiff's claims in a jurisdictional inquiry, a certain amount of this analysis is inevitable when a defendant provides the court with sworn evidence in the form of an affidavit, declaration or deposition testimony, showing that the plaintiff's claims are neither proper nor substantiated. See, e.g., Dacosta v. Novartis AG, No. 01-800-BR, 2002 U.S. Dist. LEXIS 21313 (D. Ore. Mar. 1, 2002) (finding the sales representative was a “sham defendant” who had been fraudulently joined after reviewing the sale representative's affidavit and facts developed during jurisdictional discovery).

The rules regarding what type of evidence is allowed and how it is presented to the court differ by jurisdiction, with some jurisdictions allowing very limited piercing and others allowing considerably more. For example, the Third and Tenth Circuits have permitted only limited piercing, and the Fifth Circuit allows piercing only to identify “discrete and undisputed facts” that would demonstrate plaintiff cannot prevail against the resident defendant. See Smallwood v. Illinois Cent. R. Co., 385 F.3d 568, 573 (5th Cir. 2004). The Fourth and Eleventh Circuits permit a more extensive review of the record, but make clear that the district court should not make a decision on the merits. See Hartley v. CSX Transp., Inc., 187 F.3d 422, 425 (4th Cir. 1999); Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997).

An Affidavit

Submit an affidavit from the sales representative.

The most common, and perhaps easiest and cost effective means for rebutting the factual allegations in the Complaint, is to obtain an affidavit from the local sales representative setting forth facts showing that the plaintiff cannot prevail under applicable state law. Defendants have had greater success defeating claims of negligence, misrepresentation, fraud, failure to warn, strict liability, and breach of warranty when they have established that the sales representative did not:

• Meet, speak with, or provide any materials or products directly to the plaintiff;
• Make any statements or representations to the patient's physician regarding the safety or efficacy of the product at issue;
• Have any knowledge regarding the alleged side effects or harms resulting from the use of the product;
• Call on the patient's physician regarding the product at issue;
• Provide any verbal or written information to the patient's physicians regarding the product at issue;
• Have any involvement in the manufacture, development, or preparation of the prescribing information, including the written warnings and labels, for the product at issue;
• Conduct any independent research regarding the product at issue;
• Promote the product at issue in any manner not identified in the manufacturer's written policies;
• Sell, take, or process orders for the product at issue;
• Play any role in the purchase of the product at issue by the physician;
• Have any ownership interest in the product at issue;
• Have any control over the design of the marketing or advertising materials for the product at issue; or
• Provide any information regarding the product at issue that was used during the course of the sales representative's employment that was not provided by the manufacturer.

See, e.g., Faison v. Wyeth, Inc., 353 F. Supp. 2d 1273 (S.D. Ga. 2004) and In re Rezulin Products Liab. Litig., 133 F. Supp. 2d 272 (S.D.N.Y. 2001).

Even if the sales representative can attest to all or most of these facts, however, there is no guarantee the district court will find fraudulent joinder. Success will always depend on a host of variables including, among others, the specific facts of the case at issue, the type of product at issue, the actions of the patient, physician, and sales representative in the case at issue, the legal cause(s) of action alleged against the sales representative in the Complaint, the level of factual detail provided in support of each claim against the sales representative, the particular test employed by the district court, and the extent to which the defendant is permitted to pierce the pleadings.

Physician Affidavit

Try to obtain an affidavit from the patient's physician.

In addition to an affidavit from the sales representative, an affidavit or deposition testimony from the patient's physician can also be very helpful in demonstrating that the plaintiff has no cause of action against the sales representative, specifically by breaking the chain of proximate cause. For example, the physician might state that even if the information had been given to the physician just as the plaintiff claims it should have been, the information would not have been material to the physician, and the physician would not have changed the manner in which the physician provided advice, care, and treatment to the patient. See, e.g., Bloodsworth v. Smith & Nephew, 417 F. Supp. 2d 1249, 1252 (M.D. Ala. 2006). Sworn testimony from the physician might also recite that the physician independently decided to use the product and did not rely upon any information provided by the sales representative, and, therefore, the actions of the sales representative are not linked to plaintiff's alleged injuries or damages. See Motus v. Pfizer, Inc., 358 F.3d 659, 661 (9th Cir. 2004) (inadequate warnings for Zoloft' did not cause suicide because the physician testified he did not read the warning label and did not rely on information provided by the sales representative).

While some jurisdictions tend to view affidavit testimony as creating factual issues on the merits that are not appropriate in a jurisdictional inquiry, some jurisdictions have found uncontroverted affidavits sufficient to establish fraudulent joinder. See In re Diet Drugs Products Liab. Litig., No. 03-20611, 2004 U.S. Dist. LEXIS 19848, at *5-6 (E.D. Pa. Sept. 28, 2004) (citing Bankston v. Wyeth, No. 03-20765 (E.D. Pa. Aug. 12, 2004)). Significantly, some jurisdictions have held that when a defendant presents affidavits that are not contested by plaintiffs, the court cannot then resolve the facts in the plaintiff's favor based solely on the unsupported allegations in the Complaint. See Southern v. Pfizer, Inc., 471 F. Supp. 2d 1207, 1214 (N.D. Ala. 2006) (citing Legg v. Wyeth, 428 F.3d 1317, 1323 (11th Cir. 2005)). Thus, depending on the jurisdiction in which the case is pending, obtaining affidavit testimony can be an extremely valuable tool in helping a defendant shift back to the plaintiff some of the burden in a fraudulent joinder analysis.

Moving to Stay Proceedings

If an MDL has been established, consider moving to stay proceedings in the district court and allow the MDL to decide the issue of fraudulent joinder after the case is transferred.

Since the MDL likely will be reviewing numerous claims of fraudulent joinder in mass tort litigation, it is in a better position to analyze and decide such claims in a more expeditious and efficient manner. Allowing the MDL to review claims of fraudulent joinder promotes judicial efficiency because it allows one court to review the claims of fraudulent joinder uniformly. See, e.g., In the Matter of Civil Actions Against Merck & Co., Inc., No. 6:05-cv-06621-DGL, 2006 U.S. Dist. LEXIS 86347 (W.D.N.Y., Mar. 1, 2006) (entering stay pending transfer to MDL). Having the MDL decide the issue of fraudulent joinder after transfer also helps to avoid inconsistent and conflicting rulings by the district courts, which may force a defendant to litigate in a state court in one forum and in federal court in another, when the allegations against the sales representatives are virtually identical.

While the plaintiff's complaint, standing alone, may appear sufficient, the MDL is in a better position to fairly evaluate the plaintiff's claims, and may be more likely to find that the plaintiff has fraudulently joined the sales representative.

Conclusion

In most circumstances, the advantage of being in federal court for defendants remains significant. If you suspect a salesperson for your client or any co-defendant in your case is not a legitimate defendant, investigate carefully and prepare well in advance of filing your removal papers. While the burden of proving fraudulent joinder is typically steep, the benefits of such a motion can be well worth the effort.

Lori G. Cohen, a member of this newsletter's Board of Editors, is a shareholder with the law firm of Greenberg Traurig, LLP. She focuses on litigation and trial work for the pharmaceutical and medical device industries, as well as other products liability and medical malpractice cases. She has been recognized by the National Law Journal as one of “The 50 Most Influential Women Lawyers in America” and “Top 40 Under 40.” John B. Merchant, III, an associate with the firm, focuses his practice on medical device and pharmaceutical products litigation, as well as medical malpractice litigation.

Part One of this article described some general principles regarding the concept of fraudulent joinder and the patchwork of conflicting definitions and procedures for analyzing fraudulent joinder that has developed in the Circuit Courts. This conclusion offers strategies for defeating fraudulent joinder.

Suggested Strategies

Since the burden on a defendant to demonstrate fraudulent joinder is typically heavy and inferences are resolved in favor of the plaintiff, claims of fraudulent joinder have not been overwhelmingly successful. Nevertheless, a defendant can increase the likelihood that the district court will find fraudulent joinder and retain jurisdiction over the case. Below are a few general strategies to consider when challenging the joinder of a local sales representative:

Is Removal Worthwhile?

Determine whether removal based on fraudulent joinder is worthwhile for your client.

Before you decide to remove a case, you should consider whether it is worth the effort to do so. First, keep in mind that in a jurisdiction that adheres to the “no possibility of recovery” test for fraudulent joinder, the chances are quite high that the district court will remand the case, and the costs of removal litigation can be substantial. If you need to interview sales representatives, physicians, and other individuals to prepare evidence to defeat the joinder, the costs of the removal could be on par with those for a motion for summary judgment.

Second, in considering the cost of the removal, you also should consider whether the benefits of being in federal court outweigh the risks that the case ultimately is remanded by the district court and you will be forced to pay the plaintiffs' costs in responding to the removal papers. By federal statute, where the removing party lacks an objectively reasonable basis for seeking removal, an “order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. '1447(c). See Martin v. Franklin Capital Corp. , 546 U.S. 132, 126 S. Ct. 704, 163 L. Ed. 2d 547 (2005). Therefore, it may not be worthwhile to engage in laborious and costly satellite litigation related to fraudulent joinder, particularly if the plaintiff's claims against the sales representatives appear to be sufficient to overcome removal, and the potential prejudice or bias against the defendant in the state court does not appear significant.

Third, if after considering these potential costs, it is deemed advisable to press ahead with the removal, remember that an adverse ruling is likely the end of the road for removal since a remand order normally is not reviewable on appeal. Therefore, before deciding to remove a case, it is important that you know your jurisdiction and the fraudulent joinder test it applies, research prior decisions by the district court to see how it has handled claims of fraudulent joinder in the past, evaluate the overall likelihood of success, and advise the defendant of each of the risks and benefits of trying to remove the case.

Finally, a less financially tangible consideration is the effect of the removal on your relationship with opposing counsel. As noted above, the district court is not going to consider the subjective motive of the plaintiff or plaintiff's counsel in bringing the claim(s) against the sales representative, but your removal papers will likely be viewed as an accusation. Depending on the particular case and opposing counsel, this could create conflict among counsel, make the litigation excessively contentious, and further increase litigation costs.

If after considering each of these potential downsides to removal, you and your client still feel it is worthwhile to proceed with the removal, then you will need to determine how to challenge the fraudulent joinder most efficiently and effectively.

Legally Inadequate Cause of Action

Demonstrate that the cause of action against the sales representative is legally inadequate under applicable state law.

Perhaps the least complicated and most inexpensive method for demonstrating fraudulent joinder is to show that the claim asserted against the sales representatives in the Complaint is either legally barred or is not recognized under applicable state law ' issues that typically are raised as affirmative defenses to the Complaint, and which do not necessarily require significant factual investigation.

There are a number of potential affirmative defenses that could be used to demonstrate that the claim is legally inadequate under the applicable state law. For instance, if plaintiff's claim against the resident sales representative is clearly time-barred under the applicable statute of limitation or repose or is pre-empted under federal law, it would be unfair for the plaintiff to avoid removal simply by suing the resident sales representative. Similarly, under the learned intermediary doctrine, a plaintiff should not be able to prevail against a sales representative for an alleged failure to warn if the sales representative does not owe a legal duty to warn the patient of the risks associated with a product. See Catlett v. Wyeth, Inc.,
379 F. Supp. 2d 1374, 1381 (M.D. Ga. 2004). But see, e.g., Salazar v. Merck & Co., Inc., No. 05-445, 2005 U.S. Dist. LEXIS 27776 (S.D. Tex. Nov. 2, 2005). Likewise, if the plaintiff asserts a strict liability claim against a salesperson on the grounds that the salesperson is a “seller” in the chain of distribution of the product, but state law does not recognize the cause of action, you may succeed in getting the claims against the salesperson dismissed in connection with the removal. See e.g., Thompson v. Medtronic, Inc. , 2006 U.S. Dist. LEXIS 91846, at *8 (D. Nev. Dec. 7, 2006) (sales representative was not a “seller” because plaintiff purchased product directly from the manufacturer and sales representative was fraudulently joined).

Aside from the issue of whether the cause of action is legally barred or is not recognized under state law, you also may be able to show that the plaintiff has not provided sufficient factual support in the Complaint to sustain the cause of action. The most obvious example of this is a state fraud claim. Since fraud typically has heightened pleading requirements, you may be able to show that the fraud claim cannot survive dismissal because it has not been pled with sufficient particularity under applicable state law. See, e.g., Grennell v. W. Life Ins. Co., 298 F. Supp. 2d 390, 400 (S.D.W.V. 2004) (finding plaintiff's allegations failed to satisfy the particularity requirements of West Virginia Rule of Civil Procedure 9(b)).

As outlined below, you also may be able to show through affidavits, declarations, or deposition testimony that the allegations set forth by the plaintiff in support of the claims against the sales representatives are improper.

Extrinsic Facts and Evidence

When allowed, pierce the complaint with extrinsic facts and evidence to demonstrate that plaintiff cannot prevail against the sales representative.

While the district court usually is cautioned not to analyze the merits of the plaintiff's claims in a jurisdictional inquiry, a certain amount of this analysis is inevitable when a defendant provides the court with sworn evidence in the form of an affidavit, declaration or deposition testimony, showing that the plaintiff's claims are neither proper nor substantiated. See, e.g., Dacosta v. Novartis AG, No. 01-800-BR, 2002 U.S. Dist. LEXIS 21313 (D. Ore. Mar. 1, 2002) (finding the sales representative was a “sham defendant” who had been fraudulently joined after reviewing the sale representative's affidavit and facts developed during jurisdictional discovery).

The rules regarding what type of evidence is allowed and how it is presented to the court differ by jurisdiction, with some jurisdictions allowing very limited piercing and others allowing considerably more. For example, the Third and Tenth Circuits have permitted only limited piercing, and the Fifth Circuit allows piercing only to identify “discrete and undisputed facts” that would demonstrate plaintiff cannot prevail against the resident defendant. See Smallwood v. Illinois Cent. R. Co. , 385 F.3d 568, 573 (5th Cir. 2004). The Fourth and Eleventh Circuits permit a more extensive review of the record, but make clear that the district court should not make a decision on the merits. See Hartley v. CSX Transp., Inc. , 187 F.3d 422, 425 (4th Cir. 1999); Crowe v. Coleman , 113 F.3d 1536, 1538 (11th Cir. 1997).

An Affidavit

Submit an affidavit from the sales representative.

The most common, and perhaps easiest and cost effective means for rebutting the factual allegations in the Complaint, is to obtain an affidavit from the local sales representative setting forth facts showing that the plaintiff cannot prevail under applicable state law. Defendants have had greater success defeating claims of negligence, misrepresentation, fraud, failure to warn, strict liability, and breach of warranty when they have established that the sales representative did not:

• Meet, speak with, or provide any materials or products directly to the plaintiff;
• Make any statements or representations to the patient's physician regarding the safety or efficacy of the product at issue;
• Have any knowledge regarding the alleged side effects or harms resulting from the use of the product;
• Call on the patient's physician regarding the product at issue;
• Provide any verbal or written information to the patient's physicians regarding the product at issue;
• Have any involvement in the manufacture, development, or preparation of the prescribing information, including the written warnings and labels, for the product at issue;
• Conduct any independent research regarding the product at issue;
• Promote the product at issue in any manner not identified in the manufacturer's written policies;
• Sell, take, or process orders for the product at issue;
• Play any role in the purchase of the product at issue by the physician;
• Have any ownership interest in the product at issue;
• Have any control over the design of the marketing or advertising materials for the product at issue; or
• Provide any information regarding the product at issue that was used during the course of the sales representative's employment that was not provided by the manufacturer.

See, e.g., Faison v. Wyeth, Inc., 353 F. Supp. 2d 1273 (S.D. Ga. 2004) and In re Rezulin Products Liab. Litig., 133 F. Supp. 2d 272 (S.D.N.Y. 2001).

Even if the sales representative can attest to all or most of these facts, however, there is no guarantee the district court will find fraudulent joinder. Success will always depend on a host of variables including, among others, the specific facts of the case at issue, the type of product at issue, the actions of the patient, physician, and sales representative in the case at issue, the legal cause(s) of action alleged against the sales representative in the Complaint, the level of factual detail provided in support of each claim against the sales representative, the particular test employed by the district court, and the extent to which the defendant is permitted to pierce the pleadings.

Physician Affidavit

Try to obtain an affidavit from the patient's physician.

In addition to an affidavit from the sales representative, an affidavit or deposition testimony from the patient's physician can also be very helpful in demonstrating that the plaintiff has no cause of action against the sales representative, specifically by breaking the chain of proximate cause. For example, the physician might state that even if the information had been given to the physician just as the plaintiff claims it should have been, the information would not have been material to the physician, and the physician would not have changed the manner in which the physician provided advice, care, and treatment to the patient. See, e.g., Bloodsworth v. Smith & Nephew , 417 F. Supp. 2d 1249, 1252 (M.D. Ala. 2006). Sworn testimony from the physician might also recite that the physician independently decided to use the product and did not rely upon any information provided by the sales representative, and, therefore, the actions of the sales representative are not linked to plaintiff's alleged injuries or damages. See Motus v. Pfizer, Inc., 358 F.3d 659, 661 (9th Cir. 2004) (inadequate warnings for Zoloft' did not cause suicide because the physician testified he did not read the warning label and did not rely on information provided by the sales representative).

While some jurisdictions tend to view affidavit testimony as creating factual issues on the merits that are not appropriate in a jurisdictional inquiry, some jurisdictions have found uncontroverted affidavits sufficient to establish fraudulent joinder. See In re Diet Drugs Products Liab. Litig., No. 03-20611, 2004 U.S. Dist. LEXIS 19848, at *5-6 (E.D. Pa. Sept. 28, 2004) (citing Bankston v. Wyeth, No. 03-20765 (E.D. Pa. Aug. 12, 2004)). Significantly, some jurisdictions have held that when a defendant presents affidavits that are not contested by plaintiffs, the court cannot then resolve the facts in the plaintiff's favor based solely on the unsupported allegations in the Complaint. See Southern v. Pfizer, Inc. , 471 F. Supp. 2d 1207, 1214 (N.D. Ala. 2006) (citing Legg v. Wyeth , 428 F.3d 1317, 1323 (11th Cir. 2005)). Thus, depending on the jurisdiction in which the case is pending, obtaining affidavit testimony can be an extremely valuable tool in helping a defendant shift back to the plaintiff some of the burden in a fraudulent joinder analysis.

Moving to Stay Proceedings

If an MDL has been established, consider moving to stay proceedings in the district court and allow the MDL to decide the issue of fraudulent joinder after the case is transferred.

Since the MDL likely will be reviewing numerous claims of fraudulent joinder in mass tort litigation, it is in a better position to analyze and decide such claims in a more expeditious and efficient manner. Allowing the MDL to review claims of fraudulent joinder promotes judicial efficiency because it allows one court to review the claims of fraudulent joinder uniformly. See, e.g., In the Matter of Civil Actions Against Merck & Co., Inc., No. 6:05-cv-06621-DGL, 2006 U.S. Dist. LEXIS 86347 (W.D.N.Y., Mar. 1, 2006) (entering stay pending transfer to MDL). Having the MDL decide the issue of fraudulent joinder after transfer also helps to avoid inconsistent and conflicting rulings by the district courts, which may force a defendant to litigate in a state court in one forum and in federal court in another, when the allegations against the sales representatives are virtually identical.

While the plaintiff's complaint, standing alone, may appear sufficient, the MDL is in a better position to fairly evaluate the plaintiff's claims, and may be more likely to find that the plaintiff has fraudulently joined the sales representative.

Conclusion

In most circumstances, the advantage of being in federal court for defendants remains significant. If you suspect a salesperson for your client or any co-defendant in your case is not a legitimate defendant, investigate carefully and prepare well in advance of filing your removal papers. While the burden of proving fraudulent joinder is typically steep, the benefits of such a motion can be well worth the effort.

Lori G. Cohen, a member of this newsletter's Board of Editors, is a shareholder with the law firm of Greenberg Traurig, LLP. She focuses on litigation and trial work for the pharmaceutical and medical device industries, as well as other products liability and medical malpractice cases. She has been recognized by the National Law Journal as one of “The 50 Most Influential Women Lawyers in America” and “Top 40 Under 40.” John B. Merchant, III, an associate with the firm, focuses his practice on medical device and pharmaceutical products litigation, as well as medical malpractice litigation.