Herndon troubled by misjoinder 'gamesmanship' in Bayer MDL

By Steve Korris | Mar 25, 2011

Herndon EAST ST. LOUIS – U.S. District Judge David Herndon didn't like the way 208 plaintiffs played a jurisdiction game against Bayer Corporation, but he declared them winners anyway.


EAST ST. LOUIS – U.S. District Judge David Herndon didn't like the way 208 plaintiffs played a jurisdiction game against Bayer Corporation, but he declared them winners anyway.

He remanded their suits over contraceptives to Los Angeles state court, even though he found they jointly sued Bayer and a California business to defeat federal jurisdiction.

"Unfortunately, at this time, the court does not have the authority to remedy the misjoinder in the above captioned cases," he wrote on March 11.

"The court suspects that the structuring of the above captioned cases is deliberate and employed for the purpose of avoiding removal to federal court," he wrote.

"This type of gamesmanship is troubling to the court," he wrote.

"The court agrees with other jurisdictions who have concluded that such structural maneuvering wrongfully blocks defendants' access to federal courts," he wrote.

"The court is also concerned that this type of procedural manipulation may be used by plaintiffs to usurp removal jurisdiction under the Class Action Fairness Act," he wrote.

Herndon presides by appointment of the U.S. Judicial Panel on Multi District Litigation over thousands of claims that contraceptives Yasmin, Yaz and Ocella injured women.

Plaintiffs generally allege that Bayer made false representations and concealed material facts about the safety and efficacy of the drugs.

Last year, four lawyers leading the litigation in Herndon's court teamed with California lawyers to file 13 suits for 214 plaintiffs in Los Angeles.

Mark Niemeyer of Webster Groves, Mo., Michael Burg of Englewood, Colo., Michael London of New York, and Roger Denton of St. Louis sued McKesson Corporation, a California wholesaler, along with Bayer.

Bayer removed the cases to federal court in Los Angeles, arguing McKesson's citizenship didn't matter because plaintiffs joined the wholesaler fraudulently.

Plaintiffs moved to remand the cases to state court, and the decision passed to Herndon when the multi district panel transferred the cases to East St. Louis.

On March 11, he remanded two cases with 22 plaintiffs.

"Plaintiffs have no connection with one another – each received medication prescribed by different doctors, dispensed by different pharmacies, at different times, and in different locations," he wrote.

He wrote that two plaintiffs in one case and one in the other are California citizens.

"The remaining plaintiffs are citizens of Massachusetts, North Carolina, New York, Arizona, Tennessee, Michigan, New Hampshire, Oklahoma, Florida, South Dakota and Georgia," he wrote.

He wrote that McKesson buys pharmaceuticals for sale to retail pharmacies.

He wrote that assuming all the disputed plaintiffs fraudulently joined McKesson, the California plaintiffs asserted viable claims against McKesson.

"Accordingly, traditional notions of fraudulent joinder are not a basis for removal," he wrote.

He wrote that the cases would be removable if he adopted a procedural misjoinder doctrine allowing him to sever claims prior to assessing jurisdiction.

He wrote that "although the court has significant concerns about the structuring of the above captioned cases, the court concludes that adopting the procedural misjoinder doctrine would be an improper judicial expansion of federal jurisdiction."

He quoted his own order from a prior dispute over joinder, finding federal courts possess only the power authorized by Constitution and statute.

"Moreover, the fact that federal courts are courts of limited jurisdiction imposes special risks on litigants, especially litigants who choose to proceed in federal court where the grounds for federal subject matter jurisdiction are not clear, namely, that months and years of litigation may be in vain as a result of a jurisdictional error," he wrote in that case.

In this case, he noted that structural maneuvering and desire to avoid removal to federal court weren't necessarily improper under Seventh Circuit jurisprudence.

He quoted a decision of Seventh Circuit judges that, "plaintiffs as masters of the complaint may include or omit claims or parties in order to determine the forum."

He found no rule or case providing that defendants may discard plaintiffs in order to make controversies removable.

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