Case: 1:22-cv-00071 Document #: 191 Filed: 08/22/22 Page 1 of 22 PageID #:2444
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`)
`IN RE: ABBOTT LABORATORIES, et al.,
`PRETERM INFANT NUTRITION PRODUCTS ) MDL No. 3026
`LIABILITY LITIGATION
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`) Master Docket No. 22 C 71
`This Document Relates to:
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`Removed Pennsylvania Cases1
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`) Judge Rebecca R. Pallmeyer
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`MEMORANDUM OPINION AND ORDER
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`In dozens of cases, parents of premature infants have alleged that infant formula
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`manufactured by Defendant Manufacturers—Abbott Laboratories (“Abbott”) and Mead Johnson
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`& Company, LLC and Mead Johnson Nutrition Company (collectively, “Mead Johnson”)—caused
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`premature infants to develop necrotizing enterocolitis (“NEC”). The Judicial Panel on Multidistrict
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`Litigation has consolidated a number of these cases for pretrial proceedings before this court. In
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`This opinion relates to the cases that were originally filed in Pennsylvania state
`1
`court and have pending remand motions. Specifically, the opinion concerns the following cases
`with Plaintiffs who are Pennsylvania citizens: Abdullah v. Mead Johnson & Co. ([22] in Case No.
`1:22-cv-02511); Drayton v. Mead Johnson & Co. ([22] in Case No. 1:22-cv-02513); Stills v. Mead
`Johnson & Co. ([23] in Case No. 1:22-cv-02515); Gray v. Mead Johnson & Co. ([17] in Case No.
`1:22-cv-02714); Henderson v. Mead Johnson & Co. ([24] in Case No. 1:22-cv-02611); Hines v.
`Mead Johnson & Co. ([23] in Case No. 1:22-cv-02612); Johnson v. Mead Johnson & Co. ([23] in
`Case No. 1:22-cv-02613); McMillian v. Mead Johnson & Co. ([24] in Case No. 1:22-cv-02614);
`Moment v. Mead Johnson & Co. ([24] in Case No. 1:22-cv-02615); Sanders v. Mead Johnson &
`Co. ([23] in Case No. 1:22-cv-02617); Short v. Mead Johnson & Co. ([24] in Case No. 1:22-cv-
`02618); Whitfield v. Mead Johnson & Co. ([23] in Case No. 1:22-cv-02619); Thomas v. Mead
`Johnson & Co. ([23] in Case No. 1:22-cv-02620); Williams v. Mead Johnson & Co. ([23] in Case
`No. 1:22-cv-02621); Witherspoon v. Mead Johnson & Co. ([22] in Case No. 1:22-cv-02623);
`Goodmond v. Mead Johnson & Co. ([16] in Case No. 1:22-cv-02712); Goodmond v. Mead
`Johnson & Co. ([16] in Case No. 1:22-cv-02713); Kajuffa v. Mead Johnson & Co. ([19] in Case
`No. 1:22-cv-02716); Mays v. Mead Johnson & Co. ([17] in Case No. 1:22-cv-02719); Parker v.
`Mead Johnson & Co. ([19] in Case No. 1:22-cv-02760); Ross v. Mead Johnson & Co. ([19] in
`Case No. 1:22-cv-02761); Wiggins v. Mead Johnson & Co. ([19] in Case No. 1:22-cv-02762);
`Watson v. Mead Johnson & Co. ([16] in Case No. 1:22-cv-02763). The opinion also concerns the
`following cases with Plaintiffs who are non-Pennsylvania citizens: Carter v. Mead Johnson & Co.
`([19] in Case No. 1:22-cv-02516); Padilla v. Mead Johnson & Co. ([18] in Case No. 1:22-cv-
`02720); Taylor v. Mead Johnson & Co. ([19] in Case No. 1:22-cv-02517); Walker-Savage v. Mead
`Johnson & Co. ([19] in Case No. 1:22-cv-02616); Weiger v. Mead Johnson & Co. ([21] in Case
`No. 1:22-cv-02518); Wieger v. Mead Johnson & Co. ([22] in Case No. 1:22-cv-02519).
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`Case: 1:22-cv-00071 Document #: 191 Filed: 08/22/22 Page 2 of 22 PageID #:2445
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`this opinion, the court addresses motions for remand filed by Plaintiffs in cases originally filed in
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`Pennsylvania state court and now before this court. Unlike most other cases in this MDL, the
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`complaints in these Pennsylvania lawsuits include negligence claims against the in-state hospitals
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`where the preterm infants were fed the formula at issue (“Defendant Hospitals”). Resisting
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`remand, Abbott argues that Plaintiffs fraudulently joined these in-state hospitals to defeat
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`complete diversity, see 28 U.S.C. § 1332(a), or to trigger the forum-defendant rule and preclude
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`removal. See 28 U.S.C. § 1441(b)(2). Because Plaintiffs have no good-faith intention to pursue
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`any viable claims against the Hospitals, Abbott urges, the court should deny their remand motions.
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`For the reasons explained below, the court defers ruling on these motions, pending limited
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`supplemental briefing.
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`BACKGROUND
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`The following facts, primarily taken from Plaintiffs’ complaints, are assumed to be true at
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`this stage of the proceedings.2 The court first recites the relevant jurisdictional facts, and then
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`turns to Plaintiffs’ substantive allegations, focusing on those levied against the Defendant
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`Hospitals.
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`The parties have not identified any differences among the numerous complaints
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`originally filed in Pennsylvania state court, with one exception. As Plaintiffs point out, in a small
`number of cases, the parties are completely diverse, but the named Plaintiffs are non-
`Pennsylvania citizens—which means the forum-defendant rule (rather than a lack of complete
`diversity) is the basis for their request to remand to state court. See supra at note 1.
`As the allegations appear otherwise to be substantively identical, the court uses the
`following documents from Parker v. Mead Johnson & Co. (Case No. 1:22-cv-02760) as
`representative: Plaintiff’s Complaint ([1-1], hereinafter “Parker Compl.”), Abbott’s Notice of
`Removal ([1], hereinafter “Parker Notice of Removal”), and Plaintiff’s Motion to Remand ([19],
`hereinafter “Parker Mot. to Remand”). Other citations are to the MDL Master Docket, No.1:22-
`cv-00071: Abbott’s Omnibus Memorandum of Law in Opposition to Plaintiffs’ Motions to Remand
`to Pennsylvania ([115], hereinafter “Def.’s Opp.”), and Pennsylvania Plaintiffs’ Reply in Support
`of Their Motions to Remand ([125], hereinafter “Pls.’ Reply”).
` For arguments specifically concerning the non-Pennsylvania Plaintiffs, the court cites to
`the following documents in Carter v. Mead Johnson & Co. (Case No. 1:22-cv-02516): Plaintiff’s
`Complaint ([1-1], hereinafter “Carter Compl.”), and Plaintiff’s Motion to Remand ([19], hereinafter
`“Carter Mot. to Remand”). The court also cites to the Non-Pennsylvania Plaintiffs’ Reply in
`Support of Their Motions to Remand ([126] in Master Docket No. 1:22-cv-00071, hereinafter “Non-
`Pa. Pls.’ Reply”).
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`2
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`Case: 1:22-cv-00071 Document #: 191 Filed: 08/22/22 Page 3 of 22 PageID #:2446
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`I.
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`Jurisdictional Facts
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`Defendant Abbott is incorporated in and has its principal place of business in Illinois.
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`(Parker Compl. ¶ 5.) Defendant Mead Johnson is incorporated in Delaware, and has its principal
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`place of business in either Illinois (according to Plaintiffs) or Indiana (according to Defendants).
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`(Id. ¶ 4; Parker Notice of Removal ¶ 31). The Defendant Hospitals are non-profit corporations
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`which are organized under the laws of Pennsylvania and have their principal places of business
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`in Pennsylvania. (Parker Compl. ¶ 6). It is undisputed that each lawsuit alleges an amount in
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`controversy that exceeds the jurisdictional amount of $75,000. (See, e.g., Parker Notice of
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`Removal ¶¶ 26–27.)
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`In most of the instant cases with pending remand motions, Plaintiffs are citizens of
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`Pennsylvania. (See, e.g., Parker Compl. ¶ 3.) In these cases, there is complete diversity—and
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`the statutory requirements for diversity jurisdiction are met—only if the Defendant Hospitals’
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`Pennsylvania citizenship is disregarded. See 28 U.S.C. § 1332(a). In a smaller number of cases,
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`Plaintiffs are citizens of states other than Pennsylvania, Delaware, Illinois, or Indiana. (See, e.g.,
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`Carter Compl. ¶ 3.) In these cases, all statutory requirements for diversity jurisdiction are
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`satisfied. But the Hospitals’ presence in the cases triggers the removal statute’s forum-defendant
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`rule, which precludes removal of diversity actions where any “properly joined and served”
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`defendant is a citizen of the forum-state (here, Pennsylvania). See 28 U.S.C. § 1441(b)(2); see
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`also supra at note 1 (listing cases by Plaintiffs’ citizenship).
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`II.
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`Allegations Against In-State Hospitals
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`Plaintiffs’ lawsuits arise out of injuries suffered by premature infants, who were given
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`Defendant Manufacturers’ cow’s-milk-based infant formula at a Defendant Hospital. (Parker
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`Compl. ¶ 1.) Plaintiffs allege that this formula caused premature infants to develop necrotizing
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`enterocolitis (“NEC”), a condition that occurs when bacteria breaches the walls of the intestine,
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`and can result in serious injury or death. (Id. ¶¶ 1, 14.) “Preterm and low-birth-weight infants are
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`especially susceptible to NEC because of their underdeveloped digestive systems,” and Plaintiffs
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`allege that “[e]xtensive scientific research” confirms that cow’s-milk-based feeding products cause
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`NEC in premature infants. (Id. ¶ 15.) They allege, further, that at the time the infants in these
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`cases were fed Defendant Manufacturers’ products, “the science clearly demonstrated to
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`Defendants that these products cause NEC,” and there was “scientific consensus that the
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`Defendant Manufacturers’ cow’s[-]milk-based products present a dire threat to the health and
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`development of preterm infants.” (Id. ¶¶ 27–28.) Despite knowing of the increased risk of NEC
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`for preterm infants, Defendant Manufacturers are alleged to “have continued to sell their
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`unreasonably dangerous products” without sufficient warning. (Id. ¶¶ 29, 47, 52.)
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`The Defendant Hospitals were also allegedly “aware of the significantly increased risk of
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`NEC and death associated with providing Abbott’s and Mead’s cow’s[-]milk-based products to its
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`premature infant patients,” and “knew or should have known” that these products “can cause NEC
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`in premature infants.” (Id. ¶ 55.) Instead of “warning of those dangers” or “supplying breast milk-
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`based feeding products to preterm infants,” the Defendant Hospitals “continued to source,
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`distribute, and supply the Defendant Manufacturers’ products in their hospitals without providing
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`full and adequate warnings of the attendant risks to parents, healthcare professionals, and other
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`medical staff at its relevant facilities.” (Id.) Plaintiffs allege that there are safer options besides
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`cow’s-milk-based products for feeding preterm infants—specifically, “the mother’s own milk,”
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`“pasteurized donor breast milk” (which can be delivered nationwide through “an established
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`network”), and “shelf-stable formula and fortifiers derived from pasteurized breast milk.” (Id. ¶
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`23.) Plaintiffs further assert that other “hospitals across the country warn and obtain consent from
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`parents” and “provid[e] other safer forms of nutrition, such as donor breast milk.” (Id. ¶ 56.) The
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`complaint allegations provide no further information on how other hospitals (as opposed to these
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`hospitals’ medical professionals) “obtain consent.”
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`According to Plaintiffs, the Hospitals’ “failure to warn of the risks posed by the Defendant
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`Manufacturers' products is entrenched (and compounded) by the financial benefits [they] accrue[]
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`from [their] relationships with the Defendant Manufacturers.” (Id. ¶ 57.) Defendant Manufacturers
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`are alleged to “incentivize hospitals that know the risks to use their products by providing them to
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`the hospital for free or at a significant discount.” (Id. ¶ 28.) Thus, Plaintiffs appear to suggest, in
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`return for “receiv[ing] the Defendant Manufacturers’ cow’s[-]milk-based products for free or at a
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`significant discount,” the Hospitals granted Defendant Manufacturers’ sales representatives
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`access to hospital professionals and medical staff. (Id. ¶ 57.) The sales representatives then
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`“provided deceptive information that [the Hospitals] reasonably knew or should have known would
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`ultimately reach parents through those staff.” (Id.) The Hospitals “knowingly authorized” these
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`sales representatives “to market, advertise, distribute, and/or sell their products” at the Hospital,
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`and “knowingly allowed” the representatives “to routinely misrepresent the risks and benefits of
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`Defendants’ products to [the Hospital]’s healthcare professionals and medical staff.” (Id. ¶¶ 113–
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`14.)
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`Based on these allegations, Plaintiffs have brought numerous claims against Abbott and
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`Mead under Pennsylvania law: strict liability for design defect and failure to warn, intentional and
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`negligent misrepresentation, and general negligence. (See id. ¶¶ 61–107.) Plaintiffs also brought
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`two state-law claims against the Defendant Hospitals: negligent failure to warn and “negligent
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`corporate liability of healthcare provider” (that is, a corporate negligence claim under
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`Pennsylvania law). (See id. ¶¶ 108–42.)
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`For the negligent failure-to-warn claim, Plaintiffs allege that Defendant Hospitals were
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`purchasers, suppliers, or distributors of the cow’s-milk-based products at issue in this litigation,
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`and owed a duty to the general consuming public to purchase, supply, and distribute products
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`free of unreasonable risk of harm. (Id. ¶ 109.) The Hospitals allegedly breached this duty by
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`failing to warn their medical professionals and patients about Defendant Manufacturers’ products,
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`including by failing “to provide a warning in a method reasonably calculated/expected to reach
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`the parents of newborns,” “to warn or instruct its healthcare professionals and medical staff on
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`the information that should be provided to parents in order to make an informed choice” about the
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`products, or to provide these medical professionals with “statistical evidence” or “studies” showing
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`the NEC risks of cow’s-milk-based products for premature infants. (Id. ¶ 116.)
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`For the corporate negligence claim, Plaintiffs allege that Defendant Hospitals owed a duty
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`of care to ensure Plaintiffs’ safety and well-being while under hospital care. (Id. ¶ 123.) Allegedly,
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`the Hospitals failed “to formulate, adopt, and enforce adequate rules and policies to ensure quality
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`care”—specifically, policies about (among other things) purchasing, supplying, distributing, and
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`using “products that were free of unreasonable risk of harm,” “restrict[ing] the use of cow’s[-]milk-
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`based products for feeding premature babies,” and warning parents and hospital professionals
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`about the risks of these products. (Id. ¶¶ 123–24, 130.) Additionally, the Hospitals failed “to
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`oversee its healthcare professionals and medical staff that provided patient care”—specifically,
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`by (among other things) failing to “oversee” medical professionals to restrict the use of cow’s-milk-
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`based products for feeding premature babies and not warning parents and hospital professionals
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`about the dangers of these products. (Id. ¶¶ 123, 137.)
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`DISCUSSION
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`In opposing Plaintiffs’ remand motions, Abbott contends that Plaintiffs in the Pennsylvania
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`cases fraudulently joined the in-state Defendant Hospitals to defeat removal—either because the
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`hospitals’ presence as parties defeats the requirement of complete diversity, see 28 U.S.C.
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`§ 1332(a), or because their presence triggers the removal statute’s forum-defendant rule, which
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`provides that a “properly joined and served” forum-state defendant precludes removal. See 28
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`U.S.C. § 1441(b)(2). In an effort to establish fraudulent joinder, Abbott urges that Plaintiffs’ claims
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`against the Hospitals fail under Pennsylvania state law and that other circumstances confirm that
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`Plaintiffs’ counsel has no intention of pursuing those claims.
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`I.
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`Fraudulent Joinder Doctrine
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`A.
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`The Seventh Circuit’s Standard
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`In deciding the pending motions, the court applies the substantive state law of the
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`transferor court; when considering matters of federal law raised by the motions, however, the
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`court applies the law of its own circuit.3 See Chang v. Baxter Healthcare Corp., 599 F.3d 728,
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`732 (7th Cir. 2010) (in multidistrict litigation, the transferee-MDL court applies the transferor
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`court’s substantive law); cf. McMasters v. United States, 260 F.3d 814, 819 (7th Cir. 2001) (in
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`cases transferred under 28 U.S.C. § 1404, the transferee court is “free to decide [federal issues]
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`in the manner it views as correct without deferring to the interpretation of the transferor circuit”
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`(quoting In re Korean Air Lines Disaster, 829 F.2d 1171, 1174 (D.C. Cir. 1987) (Ginsburg, J.)).
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`Though the Seventh Circuit has not addressed which law applies to federal issues in cases
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`transferred through multidistrict litigation, other circuits have concluded that the MDL court’s
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`interpretation of federal law governs. See, e.g., Korean Air, 829 F.2d at 1175 (“[B]ecause there
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`is ultimately a single proper interpretation of federal law, the attempt to ascertain and apply diverse
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`circuit interpretations simultaneously is inherently self-contradictory.”); see also In re Sulfuric Acid
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`Antitrust Litig., 743 F. Supp. 2d 827, 853–54, 853 n.5 (N.D. Ill. 2010) (collecting cases). Courts
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`in this district agree with this approach. See, e.g., NCAA Student-Athlete Concussion Inj. Litig.,
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`314 F.R.D. 580, 589 n.7 (N.D. Ill. 2016).
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`The standard for fraudulent joinder is a matter of federal law, see In re Testosterone
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`Replacement Therapy Prods. Liab. Litig., No. 14 C 1748, 2015 WL 920715, at *1 (N.D. Ill. Mar. 2,
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`2015), and so this court looks to the Seventh Circuit. Under this circuit’s precedent, “[f]raudulent
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`joinder occurs either when there is no possibility that a plaintiff can state a cause of action against
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`nondiverse defendants in state court, or where there has been outright fraud in plaintiff’s pleading
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`of jurisdictional facts.” Gottlieb v. Westin Hotel Co., 990 F.2d 323, 327 (7th Cir. 1993). Absent
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`false jurisdictional facts, a defendant seeking to establish fraudulent joinder bears the “heavy
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`Neither party directly addresses the choice of law on this issue. Plaintiffs assume
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`without explanation that Seventh Circuit law applies. (See Pls.’ Reply at 6.) Defendants cite to
`cases applying both Seventh and Third Circuit law, but—in the context of other pending remand
`motions in this MDL—agree that the Seventh Circuit’s fraudulent joinder standard applies to cases
`transferred to and consolidated into the MDL. (See Def.’s Opp. at 7–8; see, e.g., [46] in Case No.
`1:22-cv-04120 (N.D. Ill.), at 2.) For the reasons discussed above, the court applies the Seventh
`Circuit’s precedent on fraudulent joinder.
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`7
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`burden” of showing that, “after resolving all issues of fact and law in favor of the plaintiff, the
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`plaintiff cannot establish a cause of action against the in-state defendant.” Morris v. Nuzzo, 718
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`F.3d 660, 666 (7th Cir. 2013) (quoting Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir.
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`1992)). Put differently, the court asks “whether there is ‘any reasonable possibility’ that the plaintiff
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`could prevail against the non-diverse defendant.” Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d
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`752, 764 (7th Cir. 2009) (quoting Poulos, 959 F.2d at 73). As several courts in this circuit have
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`concluded, this standard “is even more favorable to the plaintiff than the standard that applies to
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`a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).” Id. (collecting cases). Only
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`if the defendant clears this high hurdle may the court disregard the citizenship of fraudulently
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`joined parties. Id. at 763.
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`B.
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`Abbott’s Evidence of Intent
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`As noted, under controlling law the fraudulent joinder standard turns on whether Plaintiffs
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`have a viable claim against the Defendant Hospitals under Pennsylvania law. Abbott
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`nevertheless focuses significant attention on suspicion regarding the motives of Plaintiffs’
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`counsel. Relying on caselaw from another circuit, Abbott contends that Plaintiffs’ “intentions and
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`the history of the litigation are also ‘certainly relevant’ to assessing fraudulent joinder.” (Def.’s
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`Opp. at 8 (quoting In re Zoloft Prods. Liab. Litig., 257 F. Supp. 3d 717, 721 (E.D. Pa. 2017)).) But
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`Abbott identifies no Seventh Circuit precedent recognizing the significance of such evidence of
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`intent, and this court has found no such authority. Rather, several courts in this district have
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`concluded that the dispositive question is the legal viability of the plaintiff’s claim, without
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`reference to subjective intent. See Ali v. Volkswagen Grp. of Am., Inc., No. 19 C 06148, 2020
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`WL 5250669, at *3 (N.D. Ill. Sept. 3, 2020) (“[A] viable claim obviates the need to inquire further
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`into motive, because a court cannot conclude as a matter of law that the motive for joinder is
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`solely to destroy diversity.”); Schumacher v. Sterigenics U.S., LLC, 394 F. Supp. 3d 837, 847 n.4
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`(N.D. Ill. 2019) (“Defendants incorrectly state that the court should scrutinize Plaintiff’s motives
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`for joining the non-diverse defendants . . . .”).
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`The court is uncertain, in any event, that Abbott’s proffered evidence in fact
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`“demonstrate[s] that Plaintiffs have no intention to pursue their claims against” the Defendant
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`Hospitals. In re Zoloft, 257 F. Supp. 3d at 720. Abbott primarily points to Plaintiffs’ counsel’s
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`other NEC lawsuits, filed in Illinois and Missouri.4 The majority of these (61 lawsuits, representing
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`378 infants) were filed in Illinois, where (because Abbott is a citizen of Illinois) the forum-defendant
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`rule precludes removal. (Brecht Decl., Ex. 1 to Def.’s. Opp. [115-1] (hereinafter “Brecht Decl.”),
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`¶ 2). Abbott points out that Plaintiffs’ counsel named no in-state defendants in these Illinois
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`lawsuits, even though several were brought on behalf of Pennsylvania infants, and two of those
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`infants allegedly received treatment at Pennsylvania hospitals named as defendants in these
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`Pennsylvania cases. (Brecht Decl. ¶¶ 4–5.) Those circumstances do suggest that Plaintiffs
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`joined Defendant Hospitals to keep their cases in state court—but doing so is entirely permissible,
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`so long as Plaintiffs pursue viable claims against the Hospitals. See Garbie v. DaimlerChrysler
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`Corp., 211 F.3d 407, 410 (7th Cir. 2000) (“[P]laintiffs as masters of the complaint may include (or
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`omit) claims or parties in order to determine the forum.”). Unlike the situation presented by In re
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`Zoloft, on which Abbott relies, the evidence here does not shed light on whether Plaintiffs intend
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`to prosecute their claims against the Hospitals. See In re Zoloft, 257 F. Supp. 3d at 720 (finding
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`fraudulent joinder where plaintiffs made only vague allegations against the in-state defendant and
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`counsel “ha[d] regularly failed to propound discovery on [defendant] and often ha[d] voluntarily
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`dismissed [defendant]”).
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`Plaintiffs’ counsel’s conduct in the Missouri cases (where they also did not name any in-
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`state hospitals) is even less relevant. Two of these cases involve Illinois plaintiffs and have
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`remained in state court, because Abbott, too, has Illinois citizenship. (Brecht Decl. ¶ 6.) The
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`Abbott also notes that in other MDLs involving Plaintiffs’ attorneys, courts have
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`denied motions to remand, finding that local entities were fraudulently joined. (See Def.’s Opp.
`at 15 (citing In re Zoloft, 257 F. Supp. 3d at 721; and In re Zantac (Ranitidine) Prods. Liab. Litig.,
`No. 20-MD-2924, 2022 WL 708589, at *6 (S.D. Fla. Jan. 28, 2022)).) Whatever the merits of
`counsel’s conduct in unrelated litigation, this court narrows its focus to the circumstances in the
`cases before it.
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`9
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`others (Abbott does not clarify how many) were removed to federal court, where Plaintiffs’ counsel
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`took voluntary dismissals in two cases and have not to date refiled those two lawsuits. (Id. ¶¶ 6,
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`8.) For now, that conduct suggests only that Plaintiffs’ counsel may not intend to proceed with
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`cases removed to federal court—not that they will decline to pursue their claims against the
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`Defendant Hospitals in state court.5
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`Abbott’s strongest argument is that Plaintiffs have failed to file a “certificate of merit,” which
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`is a substantive state law requirement for professional negligence claims in Pennsylvania. See
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`PA. R. CIV. P. 1042.3; Liggon-Redding v. Est. of Sugarman, 659 F.3d 258, 265 (3d Cir. 2011). If
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`the defendant follows certain procedural steps, the lack of a timely certificate of merit requires
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`automatic dismissal. See PA. R. CIV. P. 1042.6(a), 1042.7(a); Keel-Johnson v. Amsbaugh, No.
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`1:07-CV-200, 2009 WL 648970, at *3–4 (M.D. Pa. Mar. 10, 2009). Abbott characterizes Plaintiffs’
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`failure to file these certificates as additional evidence of their non-intent to pursue claims against
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`the Defendant Hospitals. (Def.’s Opp. at 15.) But the proper question is not whether this failure
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`sheds light on Plaintiffs’ intent, but whether it legally dooms Plaintiffs’ claims. This is a question
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`of substantive state law, more fully addressed below.
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`C.
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`Application to the Forum-Defendant Rule
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`Before turning to Pennsylvania state law, the court addresses one last aspect of the
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`Seventh Circuit’s fraudulent joinder jurisprudence. In a small number of cases with pending
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`remand motions, Plaintiffs are not citizens of Pennsylvania (where Defendant Hospitals are
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`citizens) or of Delaware, Indiana, and Illinois (where Defendant Manufacturers are allegedly
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`citizens).6 In these cases, there is complete diversity, meaning that the statutory requirements
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`The court observes that any inference that might be drawn from these voluntary
`5
`dismissals is far from conclusive. Abbott has not provided information on how many removed
`Missouri cases remain in federal court. It appears, further, that Plaintiffs’ counsel also voluntarily
`dismissed 19 other cases, at least eight of which were pending in Illinois state court. (See Brecht
`Decl. ¶ 8.)
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`These cases are listed in footnote 1 above.
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`Case: 1:22-cv-00071 Document #: 191 Filed: 08/22/22 Page 11 of 22 PageID #:2454
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`for diversity jurisdiction are met, but the presence of an in-state defendant nonetheless triggers
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`the forum-defendant rule and precludes removal. See 28 U.S.C. § 1441(b)(2). According to
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`Plaintiffs, the fraudulent joinder doctrine is relevant only where joinder of an in-state defendant
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`destroys complete diversity—and that doctrine has no purchase in situations where joinder of an
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`in-state defendant triggers the forum-defendant rule. (See Carter Mot. to Remand at 5–6.)
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`The court does not draw a bright line between joinder to defeat diversity, on the one hand,
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`and joinder to trigger the forum-defendant rule, on the other. In the case Plaintiffs rely on in
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`support of the purported distinction, Morris v. Nuzzo, 718 F.3d 660 (7th Cir. 2013), the Seventh
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`Circuit grappled with—but did not decide—this issue. The Seventh Circuit noted that the
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`fraudulent joinder doctrine is designed to strike a balance between competing policy interests: the
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`plaintiff’s right to select the forum, versus the defendant’s statutory right of removal and guarding
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`against abusive pleading practices. Id. at 668. But the court left for another day the “very close
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`question” of whether the fraudulent joinder doctrine also applied to the forum-defendant rule,
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`noting its reluctance to decide the issue without “a more thorough and more able presentation of
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`the relevant balance of interests.” Id. at 670–71. Because the Morris plaintiff had a viable claim
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`against the forum-state defendant under state law, the Seventh Circuit assumed without deciding
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`that the doctrine applied and remanded the case to state court. See id. at 670, 674–75.
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`This court does not read the Morris decision as precluding application of the fraudulent
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`joinder doctrine. The forum-defendant rule, as codified in the removal statute, provides that a
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`diversity action “may not be removed if any of the parties in interest properly joined and served
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`as defendants is a citizen of [the forum state].” 28 U.S.C. § 1441(b)(2). As the court previously
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`explained, this “properly joined and served” language “was intended to prevent gamesmanship
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`by plaintiffs, who would name (but never plan on joining or serving) a strawman in-state defendant
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`to defeat complete diversity.” In re Abbott Lab’ys, et al., Preterm Infant Nutrition Prods. Liab.
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`Litig., No. 22 C 192, 2022 WL 2257182, at *3 (N.D. Ill. June 23, 2022) (collecting authority). In
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`other cases in this MDL, Abbott has attempted to use so-called “snap removal”—that is, removing
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`Case: 1:22-cv-00071 Document #: 191 Filed: 08/22/22 Page 12 of 22 PageID #:2455
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`a case to federal court before plaintiffs effectuated service on the forum-state defendant, and then
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`arguing that there was no “properly joined and served” forum-defendant to trigger the forum-
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`defendant rule. See id. at 1–2. Uncomfortable with such defendant-side gamesmanship, this
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`court concluded that the “properly joined and served” language “permits removal only where the
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`plaintiff has fraudulently joined and improperly delayed service on a home-state defendant.” Id.
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`at *9. The natural corollary to this conclusion is that plaintiff-side gamesmanship is also
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`prohibited, as “a fraudulently joined forum defendant is an improperly joined defendant.” Bahalim
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`v. Ferring Pharms., Inc., No. 16 C 8335, 2017 WL 118418, at *3 (N.D. Ill. Jan. 12, 2017) (St. Eve,
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`J.). In other words, where an in-state defendant is fraudulently joined, the forum-defendant rule
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`does not impede an out-of-state defendant’s statutory right of removal. See id. at *3–4
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`(considering the Morris factors and applying the fraudulent joinder doctrine).
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`Significantly, however, Abbott has not responded to this argument in their opposition
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`briefing.7 (See Non-Pa. Pls.’ Reply at 2–3.) And, as the court will discuss below, further briefing
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`may be necessary to determine whether Plaintiffs have a viable claim against any Defendant
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`Hospitals. If it so chooses, Abbott may respond to this argument in the supplemental briefing.
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`Plaintiffs also contend that courts in this circuit have found fraudulent joinder
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`defeats the forum-defendant rule only where “additional factors” counsel this conclusion. (See
`Carter Mot. to Remand at 6 n.2.) But only one of their cited cases suggest this. Antcliff v. Custom
`Blending & Packaging of St. Louis, LLC, No. 18-CV-1776-NJR-GCS, 2019 WL 276156, at *3 (S.D.
`Ill. Jan. 22, 2019) (“Because there are no more additional factors here than before the Seventh
`Circuit in Morris, this Court also finds it appropriate to refrain from expanding the fraudulent joinder
`doctrine.”). The court respectfully disagrees that Morris imposes any additional-factors
`requirement, as the Seventh Circuit only determined that the court “required a ‘better
`understanding’ of the need to expand the fraudulent joinder doctrine before rendering a decision
`on the matter.” Id. at *3 (quoting Morris, 718 F.3d at 670). The other cases cited by Plaintiffs are
`readily distinguishable. In those cases, the court noted that “[n]othing in the record before the
`Court indicates that [plaintiff] joined [the in-state defendant] in this action in order to prevent
`removal to federal court or to otherwise engage in abusive pleading practices,” and concluded
`that even if the doctrine applied, the defendant had not established fraudulent joinder. Pauley v.
`Aspide Med., No. 18 C 4178, 2018 WL 11195081, at *3 (N.D. Ill. Aug. 29, 2018); Bennington v.
`Aspide Med., No. 18 C 4964, 2018 WL 11199013, at *3 (N.D. Ill. Oct. 26, 2018).
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`Case: 1:22-cv-00071 Document #: 191 Filed: 08/22/22 Page 13 of 22 PageID #:2456
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`II.
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`Pennsylvania State Law
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`Plaintiffs bring two Pennsylvania state-law claims against the Defendant Hospitals: a claim
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`of negligent failure to warn and a claim of negligent corporate liability. The court is inclined to rule
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`that at least this latter claim has some “reasonable possibility” of success, which would mean that
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`Abbott has not established fraudulent joinder and the cases must be remanded. See Poulos, 959
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`F.2d at 73. However, it does not appear that Plaintiffs have complied with Pennsylvania’s
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`substantive requirement that th