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Update: Madison County Vioxx forum shopping

On Oct. 15, 2005, I described how trial lawyers were forum-shopping in Madison County: they would file the cases of ten unrelated plaintiffs (perhaps one of whom lived in Illinois) in a single suit, name an Illinois pharmacist or Illinois doctors as a defendant (though they had no intent of bringing the pharmacist or doctors to trial), and claim the presence of the Illinois pharmacist and Illinois plaintiff in the same suit defeated complete diversity for all ten cases and precluded their removal to federal court.

It is an encouraging sign of reform that not even Madison County judges are standing for these shenanigans. In one such ten-plaintiff package deal (a different one than the one I described), after an unsuccessful federal removal, Merck moved to sever the ten cases in Madison County. Judge Daniel Stack agreed; Merck then successfully removed seven of the cases to federal court (where the trial lawyers have been attempting to re-consolidate them and get them remanded again). Now Judge Stack has agreed to transfer the cases of the remaining three Illinois plaintiffs to their home counties across the state, rather than permit litigation tourism in Madison County. The plaintiffs are getting away with some forum-shopping: they allegedly "forgot" to name an Illinois pharmacist as a defendant in one case but said "We can fix that." (Steve Korris, "Judge Stack transfers Vioxx cases out of Madison County", Madison County Record, Feb. 22).

Note that this fraudulent joinder that eventually resulted in a successful removal would be misclassified as an "erroneous removal" under the flawed Eisenberg/Morrison study on "erroneous removal" because of the initial improper remand of the improperly joined plaintiffs by S.D. Ill. Judge Murphy.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.