We have been accused of using this Blog as our personal travelogue, posting details of our various adventures notwithstanding the tenuous-at-best connections to the case descriptions that follow. Guilty. Today, for example, we wanted to let you know that you should not miss the opportunity for a visit to the hallowed Bluebird Cafe if you find yourself in Nashville. This tiny venue, featured on the “Nashville” television show, has been a launching pad for the careers of many of Nashville’s top singer-songwriters, many of whom continue to pay visits through fame and beyond. It is most famous for its “songwriters’ roundtable” format, which, for almost 35 years, has featured a circle of songwriters in the middle of the room (not on the stage), taking turns playing songs—famous (some very very famous) and not—and telling stories. It is nothing short of delightful, and, for former Nashville residents and inveterate songwriter fan girls like us, it is awe-inspiring. On New Year’s Eve, we were privileged to see four songwriters whose collective credits would fill a wall, playing and singing their hits and their best songs (not always the same thing) in a room filled with 90 lucky people who were as thrilled as we were. Seriously, don’t miss it.
But, though the Blog indulges tourism in many respects (tenuous connection alert), it draws the line at blatant litigation tourism. And, as the Eastern District of Pennsylvania’s smackdown emphasized, you won’t find a more blatant or ill-advised example of litigation tourism than today’s case. In Monroe v. Ethicon, 2019 U.S. Dist. LEXIS 219722 (E.D. Pa. Dec. 23, 2019), the two plaintiffs filed their suits in the consolidated pelvic mesh litigation in the Philadelphia Court of Common Pleas. Along with claims against the manufacturer of their pelvic mesh devices, the plaintiffs included claims against a Pennsylvania raw materials supplier – the supplier of the resin that the manufacturer used in the fabrication of its polypropylene mesh.
There is backstory. In 2014, several mesh plaintiffs in the same consolidated litigation sued the same raw material supplier. The supplier filed preliminary objections to the complaint (the Pennsylvania state court version of a motion to dismiss) alleging that it was immune from liability under the Biomaterials Accessibility Assurance Act, a federal statute that bars claims against such suppliers in suits alleging injuries caused by the finished medical devices in which the raw materials are used. (You can read our other posts about the Act here.) As the court explained, “Congress intended the Act to protect suppliers of raw materials and component parts … who do not design, produce or test a final medical device,” from lawsuits alleging that devices using the raw materials are defectively designed or inadequately tested or that they are accompanied by inadequate warnings. Monroe, 2019 U.S. Dist. LEXIS 219722 at *13-14. The judge entered an order finding the supplier to be a “biomaterials supplier” under the terms of the Act, and, as such, immune from the plaintiffs’ claims. The judge dismissed the claims against the supplier with prejudice. Subsequently, the parties entered into a stipulation under the terms of which the plaintiffs agreed not to name the supplier in any Philadelphia County mesh case. No one did, for five years.
Enter the plaintiffs in today’s case. In September 2019, both plaintiffs, neither of whom had any connection to Philadelphia, filed suits under the Philadelphia mesh master docket number and included the resin supplier as a defendant. The supplier moved to dismiss both cases. The plaintiffs adduced no additional evidence, mounted no new arguments, and supplied no additional affidavits. Nevertheless, they argued that the judge – the same judge who had issued the 2014 order – should not apply his own earlier order. The judge granted the supplier’s motion and ordered the plaintiffs to file new complaints that did not include the supplier. When they did, the remaining defendant (the mesh manufacturer) removed the cases to the Eastern District of Pennsylvania. The plaintiffs moved to remand, arguing that the supplier was not fraudulently joined and that, as a “forum defendant,” it prevented the federal court from exercising diversity jurisdiction. On the plaintiffs’ motion to remand, the court explained, “The question is not whether the claims against the forum defendant lack merit but rather whether these claims are wholly insubstantial and frivolous such that they should have never been [sic] brought.” Id. at *26 (internal punctuation and citations omitted). As the court emphasized, the plaintiffs simply made “the same arguments [the judge] had already considered” and rejected. Id. at *27. Moreover, the plaintiffs “chose to sue in the one case and one forum where there is a definitive ruling preventing [the supplier] from being a party. Id. at *27. With no appellate ruling on the issue, no other Pennsylvania county would have been bound by the Philadelphia judge’s earlier order. The court concluded, “We just cannot countenance this flouting of a dismissal order with prejudice in the same case.” Id. at *31. The court denied remand and transferred both cases to federal district courts that made sense under the facts of the cases. Nor did the court find a basis for certifying an interlocutory appeal. Instead, the court stated, the plaintiffs could sue the supplier in another Pennsylvania county or in federal district court if they really believed they had claims against the supplier.
But we all know they don’t believe anything of the sort. The fraudulent joinder of the supplier was in aid of one purpose: defeat of federal jurisdiction for plaintiffs seeking the well-known “hospitality” of Philadelphia’s trial court. We would bet a whole lot of money that, thwarted in this effort, the plaintiffs will not file separate suits against the resin supplier.
We love this decision. We enjoy few things more than watching mass tort plaintiff lawyers beaten at their own game, especially when they slide their chess pieces right into the grip of the queen. This was a slam-dunk, and we are delighted that the court acknowledged that.