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Forum-shopping and Vioxx litigation

Twenty-one Illinois plaintiffs have sued Merck in state court in St. Clair County, the similarly poorly reputationed next-door neighbor to Madison County. Not much of a surprise by itself. But Illinois plaintiffs and a New Jersey defendant would seem to permit Merck, an out-of-state defendant, to remove the case to federal court. Aha, the plaintiffs theorize, we'll also sue Walgreens as the pharmacy that sold Vioxx. Because Walgreens is an Illinois resident, there is no complete diversity and the case gets to stay in state court. (Just disregard for the moment that Walgreens' only duty is to accurately fill a doctor's prescription, and that imposing any other duty on the pharmacist would astronomically increase healthcare costs. Also ignore the problems that would arise if a pharmacist refuses to fill a prescription. Also disregard the fact that any theory of liability that blames Walgreens for Vioxx injuries necessarily exonerates Merck because of the learned intermediary doctrine, so it's exceedingly unlikely that a Walgreens attorney will ever address a jury over Vioxx.)

But what of the Illinois plaintiffs who didn't have the forum-shopping foresight to shop at an in-state pharmacy, and instead purchased their Vioxx at K-Mart (Michigan) or Wal-Mart (Arkansas)? Just glom them into the same case as the Walgreens plaintiff! It's highly doubtful that Gloria Jackson, Raymond Weems, Alberta Powell, Mary Lindsay, James Larsen, Raymond Gifford, Virgil Wayne Deboer, Joseph Giertuga, Mary Scott and James McMullin ever met each other; without having the complaint in front of me, I suspect a strong likelihood that as many of nine of them don't live in St. Clair County.

Yet all ten of them, who have ten different medical histories, find themselves plaintiffs in the same single suit. The only reasons for this artificial hydra of a suit are forum-shopping and the hope of confusing the jury into ignoring the individualized medical circumstances, and thus bypassing serious inquiry of causation. Now, a defendant can remove a case nonetheless by showing this fraudulent joinder. Unfortunately, some federal judges apply fraudulent joinder standards unduly narrowly; because remand orders are unappealable, defendants are often faced with such shenanigans have little recourse. (Ann Knef, "New round of Vioxx suits filed in St. Clair County", Madison County Record, Oct. 13). (If, as you read the newspaper article, one of the plaintiffs' attorneys sounds familiar to you, there's a reason for that.)

(Update: an October 20 follow-up post discusses the concept of zealous representation more generally.)



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.