For The Defense, December 2012 - DRI Today

Drug anD MeDical Device
Inc., 942 F.2d 1173, 1176 (7th Cir. 1991), the
Seventh Circuit found that a physician who
ordered the injection of a drug that allegedly
harmed a plaintiff was not an indispensable
party to a product liability case
against the manufacturer of the drug.
Defense counsel should know that not
all jurisdictions look upon claims against
a treating physician or implanting sur-
Procedural rules
governing discovery and
how those rules are applied
also merit consideration
when deciding whether
to pursue removal to
a federal court.
geon for medical negligence as unrelated
to product liability claims against a drug
or medical device manufacturer, and they
have found medical providers to be indispensable
parties or otherwise declined to
sever the claims against them. For example,
in Echols v. OMNI Medical Group, Inc.,
751 F. Supp. 2d 1214, 1216–17 (N.D. Okla.
2010), the district court found that the
prejudice to the plaintiff presented by the
need to prosecute separate cases against a
pharmaceutical manufacturer and a prescribing
physician precluded severing the
product liability claims from the medical
malpractice claims. Similarly, in Selman
v. Pfizer, Inc., 2011 WL 6655354, at
*12 (D. Or. 2011), and Robinson v. Swedish
Health Servs., 2010 WL 816818, at *2 (W.D.
Wash. 2010), the district courts refused to
sever claims against drug prescribers from
claims against the drug manufacturers. In
the holdings, the district court in each case
found that the plaintiff had not misjoined
the claims because they involved common
issues of law and fact.
While drug and medical device litigation
frequently includes unrelated claims
against nondiverse defendants, these claims
also arise in other types of cases. Courts
20 ■ For The Defense ■ December 2012
have applied Federal Rule of Civil Procedure
in a variety of cases to sever and remand
claims against nondiverse parties to
preserve diversity. In Crockett v. R.J. Reynolds
Tobacco Co., 436 F.3d 529, 533 (5th Cir.
2006), the court severed negligence claims
against medical providers from those
claims against nonmedical product manufacturers
in a wrongful death case. The
Eleventh Circuit, in Ingram v. CSX Transp.,
Inc., 146 F.3d 858, 862–63 (11th Cir. 1998),
a personal injury case against a railroad
company, exercised the authority set forth
by the U.S. Supreme Court in Newman-
Green to drop a nondiverse, dispensable
defendant municipality under Federal Rule
21 of Civil Procedure to preserve diversity
jurisdiction, postjudgment, on the appeal.
The Second Circuit Court severed and dismissed
claims on the appeal in a breach of
contract action in Highland Capital Mgmt.,
LP v. Schneider, 198 F. App’x 41, 45 (2d Cir.
2006), against nondiverse, joint tortfeasors
to maintain diversity. In Archway Ins. Services,
LLC v. Harris, 2011 WL 2415168 (E.D.
Pa. 2011), the district court severed claims
against bank defendants from claims for
fraud against insurance broker defendants
to perfect its diversity jurisdiction. And in
Davis v. Cassidy, 2011 WL 6180054 (E.D. La.
2011), the district court severed personal injury
claims arising from an automobile accident
from claims arising from a separate,
unrelated vehicular accident, finding that
different issues of liability were involved in
each, despite the plaintiff’s claims of aggravation
of injuries.
How to Decide to Remove
or Not to Remove
While the means exist to move a case with
a nondiverse defendant from a state court
into a federal court, an astute defense attorney
must also analyze whether to take advantage
of these tools. In most instances,
the decision to remove is a proverbial “no
brainer.” Most product liability defense
attorneys and company general counsel
would agree that, by and large, a federal
forum is the preferred forum in which to
litigate and try a product liability case. But
in some regions, the state court venue may
be the better choice for any number of reasons.
For example, the state court judges in
an area may be perceived as more legally
conservative than their federal counter-
parts. Likewise, the makeup of the potential
jury pool is a factor to consider. Because
a state court judicial district often draws
potential jurors from a single county or a
smaller geographic area than the federal
district in which it is located, a jury in the
state court may be more apt not to find liability,
or to award less in a damages award
than a jury in the federal court. Additionally,
a defendant company’s ties to a community
may make a state court venue more
attractive. When a company is well-known
and well regarded by the members of the
jury pool, they may be less likely to find that
the company engaged in willful and wanton
misconduct or other actions that warrant
imposing punitive or exemplary damages.
Procedural rules governing discovery
and how those rules are applied also merit
consideration when deciding whether to
pursue removal to a federal court. Questions
to ask in this area include: How does
the state court approach discovery? Does
the state court provide a product liability
plaintiff with more or less latitude in the
breadth and scope of permissible discovery?
Does the state court have rules in place
permitting and regulating e- discovery? If
so, how do those rules compare with the
federal e- discovery rules? Are the state
rules as broad and encompassing as the
federal rules? Are the state court judges
more or less likely to impose sanctions
for discovery violations? Are the sanctions
doled out in the state court more or
less severe than those imposed in the federal
court? What is the state’s position on
involving “C-level” executives in the discovery
process in terms of depositions or
other things? Does the state distinguish
between a “discovery deposition” and an
“evidence deposition”? Illinois, for example,
makes this distinction and places limits
on the purposes for which a plaintiff
may use a discovery deposition. Does the
state court impose limits on expert discovery
that the Federal Rules of Civil Procedure
do not? In Pennsylvania state courts
do not routinely permit discovery depositions
of expert witnesses.
The state and federal tribunal also may
conduct trials differently. Most, if not all,
federal courts frequently empanel a jury
trial of less than 12 persons to hear a civil
case. Many states permit a defendant to
Federal Case , continued on page 89