Wednesday, October 7, 2009
Judge Keenan of the Southern District of New York is handling the Fosamax litigation consolidated by the JPML. In a recent opinion, 2009 WL 3109832 (S.D.N.Y.), Judge Kennan held that a plaintiff could join her doctor as a defendant, and that this was not fraudulent joinder to destroy diversity jurisdiction.
One wonders here if this particular plaintiff preferred the state court system, not for any preferential rules or procedures, but because of the ability to litigate her claim by herself without being swallowed up by the aggregated litigation. Concerns about plaintiff interests and autonomy in non-class consolidated litigation have received a good deal of attention lately. On the other hand, a continuing challenge for the effective aggregation of cases is the inability to
fully consolidate cases that are pending in parallel court systems.