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In re Fosamax Products Liability Litigation

September 28, 2009


The opinion of the court was delivered by: John F. Keenan, United States District Judge

MDL No. 1789



This action and hundreds of others in which plaintiffs allege to have developed osteonecrosis of the jaw from ingesting defendant Merck & Co., Inc.'s ("Merck") prescription osteoporosis drug, Fosamax, have been consolidated before this Court for pretrial coordination. Merck removed this case to federal court, contending that Plaintiff fraudulently joined defendant Mark Griffin in an effort to defeat federal diversity jurisdiction. For the reasons that follow, Plaintiff's Motion to Remand is granted.


On February 10, 2009, plaintiff Myra Ward, a resident of Florida, filed a complaint in the Circuit Court of Florida for the County of Escambia against Merck, a New Jersey corporation, and Mark Griffin, a Florida resident. Plaintiff asserts claims of strict liability, negligence, and fraud. At relevant times, Griffin was employed by Merck as a professional representative, in which his role was to "make physicians aware of the benefits and limitations of certain Merck medicines." (Def. Opp'n at 3.) Griffin's responsibilities included, among other things, "visit[ing] physicians' and healthcare providers' offices and provid[ing] FDA-approved package inserts and other materials provided by Merck." (Id.) The Complaint alleges that Griffin "misrepresented [the] safety and effectiveness of [Fosamax] and concealed or understated its dangerous side effects in order to increase [his] financial gain by way of salaries, bonuses, or other incentives." (Compl. at 3.)

On March 27, 2009, Merck removed the case to the United States District Court for the Northern District of Florida, despite the conceded non-diversity of plaintiff Ward and defendant Griffin. The case was ordered transferred to this MDL on April 24, 2009. Merck's notice of removal attached a signed declaration from Griffin, which provided details regarding his employment at Merck and involvement with Fosamax.

Plaintiff seeks remand based on the non-diversity of plaintiff Ward and defendant Griffin, both Florida citizens. Merck asserts that the non-diverse defendant Griffin was fraudulently joined in the action, so that his presence should be disregarded for the purpose of determining whether diversity jurisdiction exists. Merck argues that Plaintiff's "generalized," "non-specific," and "conculsory" allegations have no reasonable basis in fact or law upon which Griffin can be found personally and independently liable.


Under the removal statute, defendants may remove an action from state court if it originally could have been brought in federal court. 28 U.S.C. § 1441(a). When removal is based on diversity jurisdiction, defendants must show that there is complete diversity of citizenship between plaintiffs and defendants and that the amount in controversy exceeds $75,000.

28 U.S.C. § 1332. "In light of the congressional intent to restrict federal court jurisdiction, as well as the importance of preserving the independence of state governments, federal courts construe the removal statute narrowly, resolving any doubts against removability." Lupo v. Human Affairs Int'l, Inc., 28 F.3d 269, 274 (2d Cir. 1994) (citation omitted).

Even if complete diversity is destroyed by the presence of a non-diverse party, removal is nonetheless proper if that party was fraudulently joined in the action. The doctrine of fraudulent joinder prevents a plaintiff from joining a non-diverse defendant "with no real connection to the controversy" to defeat federal removal jurisdiction. Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 460-61 (2d Cir. 1998). If a defendant has been fraudulently joined, that defendant's citizenship is overlooked for the purpose of determining whether complete diversity exists.

One claiming fraudulent joinder in the Second Circuit "bears a heavy burden." Id. at 461. He "must demonstrate, by clear and convincing evidence, either that [1] there has been outright fraud committed in the plaintiff's pleadings, or [2] that there is no possibility, based on the pleadings, that a plaintiff can state a cause of action against the non-diverse defendant in state court." Id. On the latter ground, "[j]oinder will be considered fraudulent when it is established that there can be no recovery [against the defendant] under the law of the state on the cause alleged." Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 207 (2d Cir. 2001) (internal quotation marks omitted, alteration in original). Most courts in this district have applied the "no possibility" standard rather strictly.*fn1 See, e.g., Dexter v. AC&S Inc., No. 02 Civ. 6522, 2003 WL 22725461, at *2 (S.D.N.Y. Nov. 18, 2003) (noting that "[r]ecent cases from this district have strictly applied the standard"); Stan Winston Creatures v. Toys "R" Us, Inc., 314 F. Supp. 2d 177, 183 (S.D.N.Y. 2003) (requiring defendants to show that it is "legally impossible" for plaintiff to recover); Nemazee v. Premier, Inc., 232 F. Supp. 2d 172, 178 (S.D.N.Y. 2002) ("Any possibility of recovery, even if slim, militates against a finding of fraudulent joinder; only where there is 'no possibility' of recovery is such a finding warranted."). The court lends more lenient scrutiny to plaintiff's claims than it would if it were ruling on a motion to dismiss. See Sherman v. A.J. Pegno Constr. Corp., 528 F. Supp. 2d 320, 328-29 (S.D.N.Y. 2007); Kuperstein, 457 F. Supp. 2d at 471. "[A]ll factual and legal issues must be resolved in favor of the plaintiff." Pampillonia, 138 F.3d at 461.

In support of its motion to remand, Plaintiff points to the Florida intermediate appellate decision Albertson v. Richardson-Merrell, Inc., 441 So. 2d 1146 (Fla. Dist. Ct. App. 1983). Albertson involved a mother and her minor child who suffered birth defects as a result of ingesting the drug Bendectin during pregnancy. She sued the drug manufacturer and others, including an employee of the manufacturer who allegedly misrepresented material facts concerning the safety of the drug to the plaintiff's prescribing physician. The court in Albertson reversed the lower court's order to grant the defendant's motion to dismiss, holding that plaintiff could maintain a fraud claim based on the individual defendant's alleged misrepresentations to the plaintiff's ...

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