Tuesday, August 12, 2014
Via our friends at the Drug and Device Law blog: Court Holds that Claim Against a Doctor Who Served as a Designer (or Possibly Just a Consultant) Can Defeat Diversity. From the post:
The court in Turner v. DePuy Orthopaedics, Inc., 2014 U.S. Dist. LEXIS (C.D. Calif. July 29, 2014), ordered the remand of a removed case after rejecting the defense’s argument that Mensingpreemption (or at least its reasoning) should be extended to failure to warn claims brought against a doctor involved in the design of a medical device. The defense’s argument was aggressive, even inventive, but it wasn’t bad. Its argument was that the doctor-designer, much like a generic drug manufacturer, had no control over the warning label. Rather, the manufacturer controls the ultimate content of the label, just as the brand manufacturer, not the generic manufacturer, controls the ultimate content of generic drug’s label. The court saw things differently, though. Taking plaintiff’s allegations as true, the court found a “possib[ility]” that the doctor “had a substantial ability to influence the manufacturing or distribution” of the device. Id. at *10.
. . .
Now, the disconnect here may be that, even though federal, the court was not applying TwIqbal or anything resembling it. The court believed instead that it could not dismiss the doctor as fraudulently joined if there was “any possibility that plaintiff may prevail.” Id. at *5. That’s different from the TwIqbal standard, and we have addressed (here) that we believe federal courts considering fraudulent joinder should apply TwIqbal, or at least aTwIqbal-like standard. This court didn’t.