Point of Law Blog poses an interesting question about recent Merck Vioxx cases:
On February 26, 2007, Angela McCool's trial against Merck was scheduled to start in plaintiff-friendly Philadelphia state court. (McCool had used fraudulent joinder to keep the case in state court by also suing some Merck employees who lived in Pennsylvania.) McCool had blamed the fatal heart attack of her husband (who had hypertension, high cholesterol and obesity) on Vioxx, but apparently thought better of bringing the case, which was voluntarily dismissed with prejudice.
Task for a creative investigative reporter: I really wonder whether the Plaintiffs' Steering Committee (or individual trial lawyers with large inventories of Vioxx cases) are buying off plaintiffs with weak cases so that Merck doesn't have a pile of victories in the early going, something that has effectively shut down other pharmaceutical mass tort litigation that settled for nuisance sums.
What possible reason could a plaintiff have to agree to a lawyer's request to settle for zero when there's a better-than-lottery-ticket chance at fame and fortune before a jury? There seem to be a surprising number of voluntary dismissals with prejudice, and there has yet to be a Vioxx plaintiffs' victory of any significance that isn't severely tainted with reversible error on fundamental matters such as expert evidence.
2 comments:
If the case was filed in State Court presumably Merck removed it to the Federal Court. Then the plaintiffs moved to remand because the Federal Court did not have diversity jurisdiction. There must be "complete diversity." If there are non-diverse parties, either plaintiffs or defendants, thae there is no diversity jurisdiction> By statute the case must be remanded to state court. Scrupulous adherence to the statutory basis for Federal Court jurisdiction should please all "strict constructionists." If the case was in fact remanded to state court after Merck's forum shopping, excuse me removal, then the Federal Court must have ruled that the non-diverse parties were legitimate, the joinder was not fraudulent, and strict construction of the jurisdictional statute required remand to the state court.
This should not be disconcerting, after all we conservatives are worried about the growth of the federal government and the diminishment of states' rights.
Seeking to remove a case to federal court, whether legitimately or not is known as "forum shopping"
I hope some of the next postings will show a shred of evidence to support the allegation that
the Plaintiffs' Steering Committee (or individual trial lawyers with large inventories of Vioxx cases) are buying off plaintiffs with weak cases so that Merck doesn't have a pile of victories in the early going.
Pat Filan
pfilan@filan-law.com
Thanks for this. Feel free to tell this to Ted Frank at Point of Law.
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