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Drugs & Medical Devices

Premature Removals as Underhanded Defendant Tactics

— April 7, 2015

No one can reasonably deny that law often resembles a game of chess, in which the filing of a claim is the opening salvo. However, there is a disturbing new trend that would have Bobby Fischer throwing up his hands in disgust, namely, premature removals of cases from state to federal courts.

Some background is in order. Plaintiff took the diet drug Fen-Phen and developed pulmonary arterial hypertension, a deadly disease. She and her husband, Pennsylvania residents, sued the drug’s manufacturers, two Pennsylvania corporations and one out-state company. The suit was properly filed in Pennsylvania state court on state law claims.

The very next day, the one out-state defendant removed the case to federal court. At the time, no defendants had been served. Pennsylvania’s rules of civil procedure state that immediate service on a Pennsylvania citizen is not feasible. However, service must be made within 30 days of filing the claim. The two in-state defendants were properly served and plaintiffs asked the district court to remand the case back to the state court, as removal was premature and improper given that two properly joined defendants were present in the forum. The district court denied the motion and the case remained in federal court.

The defendants filed a motion under Federal Rule of Evidence 702 to keep out plaintiffs’ expert evidence that the drug caused the illness. They also filed for summary judgment. The district court granted the exclusionary motion stating that the expert testimony was inadmissible as it failed to meet the state requirement that experts’ opinions must be “to a reasonable degree of medical certainty.” The district court then granted summary judgment in favor of the defendants, as the excluded evidence was the linchpin of the plaintiffs’ case.

The Center for Constitutional Litigation (CCL) filed an appeal with the U.S. Court of Appeals for the Third Circuit. The appeal asks for reversal of the district court’s holding that removal was proper and also that the determination on the merits be vacated under 28 U.S.C. § 1441(b)(2), also known as “the forum defendant rule.” The rule states that a defendant who is a citizen of the forum state cannot suffer local prejudice from litigating in state court.

The disturbing trend toward premature removals flies in the face of the rule, CCL contends. Defendants should not be allowed to use such underhanded tactics as monitoring court dockets and immediately filing for removal before they’re even served. Such tactics deprive plaintiffs of the right to proper choice of forum, as well as create excess caseloads for the federal courts.

Further, CCL argues that the summary judgment is also wrong. Pennsylvania law requires that the expert’s testimony must be evaluated in its entirety. CCL’s point is that, had the case been properly heard in state court, the evidence would have been admissible. Plaintiffs’ hired experts and treating doctors all agreed that Fen-Phen was the direct cause of plaintiff’s pulmonary arterial hypertension.

We’ll see if the appeals court agrees. I certainly agree with CCL. The rules of civil procedure, evidence and all the others were put into place to guide the legal system in giving all parties a fair chance to prove their cases. Yes, sometimes that means finding the “Holy Grail” of the loophole; however, some loopholes need to be closed.

Purposely stacking the deck (pardon the mixed metaphors) robs parties of true justice. It’s obvious that the out-state defendant didn’t fancy its chances of successfully defending the suit and so resorted to flat-out cheating. This scummy early removal tactic is no less wrong and reprehensible than buying a judge.



CCL Files Opening Brief in Fen-Phen Appeal

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