On March 10th, CCL attorneys filed their opening brief in an appeal presenting an important issue of first impression, whether an out-of-state defendant can remove a case from state to federal court before the in-state defendants are served. The case originated because the plaintiff developed the deadly disease pulmonary arterial hypertension (PAH) after taking the diet drug Fen-Phen. Plaintiffs sued the manufacturers of Fen-Phen, two of which are Pennsylvania corporations, in Pennsylvania state court on state law claims. The next day, before plaintiffs had the opportunity to serve any of the defendants, the only out-of-state defendant removed the case to federal court. Under Pennsylvania rules of civil procedure, immediate service on a Pennsylvania citizen is not feasible, but service must be made within 30 days of filing. Plaintiffs served the two forum defendants and asked the district court to remand because removal was premature and improper because of the presence of two properly joined forum defendants. The district court denied the plaintiffs’ motion to remand, and would not certify its order for interlocutory appeal.

The case remained in federal court and the defendants filed a joint motion to exclude plaintiffs’ expert evidence that her use of Fen-Phen caused her illness under Federal Rule of Evidence 702 and for summary judgment. The district court held that none of plaintiffs’ expert testimony was admissible because it fell short of Pennsylvania’s requirement that experts opine “to a reasonable degree of medical certainty.” Without admissible evidence as to causation, the court ruled, defendants were entitled to summary judgment.

In the brief filed on Tuesday, CCL’s Valerie M. Nannery and Jeffrey R. White asked the U.S. Court of Appeals for the Third Circuit to reverse the district court’s holding that removal of the case from state court was proper, and to vacate the district court’s determination on the merits because removal was premature and improper under 28 U.S.C. § 1441(b)(2), otherwise known as “the forum defendant rule.” This provision limits the cases that can be removed on the basis of diversity jurisdiction when “any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” When a defendant is a citizen of the forum state, there is no local prejudice to the defendant from litigating in state court.  

Because there were forum defendants who were properly joined in the case, CCL argued, removal before service on any party was both premature and improper under the express terms of the removal statute and its purpose. CCL urged the court to reject a reading of the statute that would provide defendants a way to subvert the forum defendant rule by monitoring state court dockets and immediately filing a notice of removal, thus depriving plaintiffs of their proper choice of forum, and filling federal district courts with cases that belong in the state courts where they were filed.

In the alternative, CCL argued that the district court was wrong in granting summary judgment to the defendants because there was admissible evidence that Fen-Phen caused the plaintiff’s PAH. Hired experts and treating physicians alike each concluded, unequivocally, that the plaintiff’s PAH was caused by her use of the diet drug. On appeal, CCL argued that the district court failed to evaluate each expert’s testimony in its entirety, as required by Pennsylvania law.