Case v. Law: Sales Representatives, Diversity Jurisdiction, and Fraudulent Joinder: Where do the Courts Stand?

The issue of whether a sales representative has been fraudulently joined by the plaintiff to defeat diversity jurisdiction is one that is continuously evolving. When preparing an opposition to remand, we have to search Westlaw, PACER, and the internet generally because decisions on this issue are hidden in slip opinions and unreported decisions but hardly ever hammered out in the Federal Supplement. Although the subject matter has been written on in many publications and review articles, district court rulings continue to be inconsistent and the facts of individual cases overwhelmingly drive the decisions, so it is imperative to be current on the law in this area for the applicable jurisdictions. Because the issue continues to evolve, when presented with a sales representative fraudulent joinder situation, we must review the precedent for factual distinctions and conduct thorough research searches on court websites as well as traditional Westlaw/Lexis searches to ensure the removal and remand briefing contains the most up-to-date cases. This compendium is not intended to provide a complete overview of the law in each state but more to serve as a starting point for research in the states that have posted decisions and to demonstrate the varying views across the country and even intra-state on the issue.

Alabama: Legg v. Wyeth, 428 F. 3d 1317 (11th Cir. 2005) (finding that plaintiffs did not present sufficient evidence on remand motion to show that the sales representative had any knowledge of the risk allegedly associated with the medication and that no reasonable possibility existed to conclude that the sales representative personally breached a duty to the plaintiff); see also In re Prempro Prods. Liab. Litig., No. 4:03cv1507, 2006 WL 617981 (E.D. Ark. March 8, 2006) (applying Alabama law and finding sales representatives fraudulently joined); but see Finley v. Merck & Co., Inc. No. 2:08cv51 (Order, M.D. Ala. March 12, 2008) (remanding case and finding that sales representative was not fraudulently joined).

California: Vu v. Ortho McNeil Pharms., Inc., 602 F. Supp. 2d 1151 (N.D. Cal. 2009) (holding that sales representative was fraudulently joined and did not destroy complete diversity between the parties).

Colorado: Nerad v. AstraZeneca Pharms., Inc., No. 05-6128, 2006 WL 2879057 (10th Cir. Oct. 11, 2006) (finding that remand decision was not appealable and district court properly found that sales representative was not fraudulently joined).

Connecticut: Oliva v. Bristol-Myers Squibb Co., No. 3:05cv486, 2005 WL 3455121 (D. Conn. Dec. 16, 2005) (holding that sales representative was proper party with potential liability under Connecticut’s product liability statute).

Florida: Merced-Torres v. Merck & Co., Inc., 393 F. Supp. 2d 1299 (M.D. Fla. 2005) (finding sales representative fraudulently joined and denying remand).

Georgia: Faison v. Wyeth, Inc., 353 F. Supp. 2d 1273 (S.D. Ga. 2004); Catlett v. Wyeth, Inc., 379 F. Supp. 2d 374 (M.D. Ga. 2004) (finding sales representative fraudulently joined and that the learned intermediary doctrine does not extend to sales representatives).

Hawaii: McClelland v. Merck & Co., Inc., No. 06-543, 2007 WL 18293 (D. Haw. Jan. 19. 2007) (denying remand and granting motion to stay pending transfer to multi-district litigation proceedings).

Illinois: Kennedy v. Medtronic, 851 N.E.2d 778 (Ill. App. 2006) (finding that Medtronic’s clinical specialist attended the surgery to provide technical support and ensure that the lead parameters were correctly calibrated and the lead was functioning properly and that this limited role did not entail her voluntarily assuming a duty, under section 324A of the Restatement (Second) of Torts, for the placement of the lead into the correct ventricle of the patient’s heart).

Indiana: McDaniel v. Synthes, Inc., No. 2:07cv245, 2007 WL 3232186 (N.D. Ind. Oct. 29, 2007) (finding that sales representative who sold pain pump to medical device company and was present in operating room during surgery was not fraudulently joined).

Kansas: Jochim v. Wyeth-Aherst Labs. Div., No. 01-2304, 2001 WL 950785 (D. Kan. July 13, 2001) (remanding case in which plaintiffs amended complaint adding local sales representative and physician).

Kentucky: Anderson v. Merck & Co., Inc., 417 F. Supp. 2d 842 (E.D. Ky. 2006) (finding sales representative was fraudulently joined and denying remand).

Mississippi: Omobude v. Merck & Co., Inc., No. 3:03cv528, 2003 WL 25548425 (Oct. 3. 2003) (holding that sales representative was improperly joined); but see Coker v. Merck & Co., Inc., No. 4:07cv100, 2007 WL 2363398 (N.D. Miss. Aug. 16, 2007) (finding sales representative properly joined).

Nevada: Elmore v. Merck & Co., Inc., No. 3:06cv557, 2007 WL 956893 (March 29, 2007) (holding that sales representative was proper party and granting remand to state court).

New Mexico: Spataro v. Depuy Orthopaedics, Inc., No. 08-00274, 2009 WL 382617 (Jan. 9. 2007) (holding that defendant did not meet burden to show that sales representative was fraudulently joined).

Oregon: DaCosta v. Novartis AG, No. 01-800, 2002 WL 31957424 (D. Ore. March 1, 2002) (denying remand and dismissing sales representative as party).

Pennsylvania: Crutchley v. I-Flow, No. 09-35, 2009 WL 650358 (E.D. Pa. March 12, 2009) (finding sales representative a proper party and granting remand).

Texas: Del Bosque v. Merck & Co., Inc., No. 06-510, 2004 WL 3487400 (S.D. Tex. Dec. 1, 2006) (finding that sales representative was properly joined and granting remand to state court); see also Rape v. Medtronic, Inc., No. 9:04cv225, 2005 WL 1189826 (E.D. Tex. May 19, 2005).

West Virginia: Jones v. Purdue Pharma L.P., No. 5:01cv1246, 2002 WL 32097528 (S.D. W. Va. Feb. 27, 2002) (holding that sales representative was fraudulently joined).

Wisconsin: Stibor v. Ethicon, Inc., No. 04-C-1255, 2005 WL 1793589 (E.D. Wis. July 27, 2005) (granting remand and finding that the Complaint stated a claim against sales representative).