Strategies for defeating the fraudulent joinder of sales representatives in pharmaceutical and medical device litigation.

• Author: Cohen, Lori G.

This article originally appeared in the May 2009 Drug, Device, and Biotechnology Committee Newsletter.

THE TREND OF FRAUDULENT JOINDER

Over the past decade, plaintiffs have stepped up their assaults on federal diversity jurisdiction in pharmaceutical and medical device litigation. Along with their efforts to chip away at the learned intermediary doctrine, plaintiffs increasingly are attempting to fraudulently join local sales representatives in order to defeat diversity. In recent years, many plaintiffs have not been so concerned with "valid" claims and, instead, have named local parties against whom they have no legitimate claims.

In mass tort and individual cases alike, plaintiffs often allege that the sales representative is individually liable for fraudulent or negligent verbal representations to the patient's physician and/or the patient that supersede or interdict the manufacturer's written warning to the physician or other information contained in the product's labeling. Plaintiffs may also allege that the sales representative knew or should have known of the alleged harmful effects of the pharmaceutical or device, but failed to inform the physician and/or the patient of those effects. Depending on the applicable state law, plaintiffs may also allege such claims as infliction of emotional distress, fraudulent concealment, breach of warranty, unfair or deceptive acts or trade practices, loss of consortium, conversion, breach of contract, unjust enrichment, conspiracy, invasion of privacy, failure to warn, and strict liability against the sales representative. Plaintiffs typically allege that under the local state's laws, the sales representative is not merely an agent of the company, but is individually liable as a joint-tortfeasor for his or her own alleged tortuous conduct. In many instances, these allegations are nothing more than a sham at the expense of the foreign defendant, and which unfairly and unnecessarily drag individual sales representatives into litigation.

With the growth of direct-to-consumer advertising and ever increasing criticism from the national media as to the manner in which medical drugs and devices are developed, approved, and sold, the trend of naming as defendants individual sales representatives in pharmaceutical litigation is likely to continue and grow in the coming years. In fact, as courts continue to strike down plaintiffs' efforts to forum shop, plaintiffs will craft new theories of individual liability against the sales representatives.

This trend threatens to destroy one of the most important weapons in a foreign defendant's arsenal--the right to have the case tried in federal court. In response to this trend, manufacturers of pharmaceuticals and medical devices throughout the country have been waging an intensifying battle over forum selection.

The remainder of this article offers some strategies for defeating fraudulent joinder. While the specific strategies employed in individual cases will vary depending on the facts and circumstances of each case and the jurisdiction in which the case is pending, there are some fairly common approaches that may help arm the district court with the information it needs to retain jurisdiction.

SUGGESTED STRATEGIES FOR DEFEATING FRAUDULENT JOINDER

The defendant...