The vast majority of DePuy hip replacement lawsuits will – if they go to trial – be tried in the states where the surgeries occurred (excluding bellwether trials and state court cases). But the discovery of these DePuy cases is consolidated in Ohio. That means, for now, every federal court case sits in what is called an MDL in Ohio.
Some DePuy plaintiffs’ lawyers, for various reasons, do not want to wait on the slow pace of the MDL in Ohio. A number of cases that were transferred from Alabama have named a sales representative from DePuy/Johnson & Johnson as a defendant. Plaintiffs’ lawyers claim because there is the diversity of citizenship – an Alabama resident on both sides of the “v” – that the cases should be remanded to Alabama.
Let’s be honest. The plaintiffs’ lawyers would not have named this sales rep if he was not an Alabama resident. The DePuy lawsuits are clearly not about a sales rep. Still, that is not the litmus test as to whether the joinder is fraudulent. In fact, the burden for the defendants is quite high. To keep these Alabama cases in the MDL, DePuy was required to meet the difficult burden of showing either “(1) there is no possibility the plaintiff can establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant into state court; or (3) there is no real connection between the claims against a diverse defendant and those against a non-diverse defendant.
In these Alabama cases, the MDL judge hung his hat on the first prong: there was no way to make the claims against the DePuy sales rep.
The opinions all look virtually identical in the five cases. You can find the opinions and some thoughts from lawyers looking at these cases very differently than we do here.