Plaintiffs’ lawyers frequently use joinder to forum-shop. In particular, they often collect plaintiffs from around the country and join them with a few local plaintiffs and a “nominal” local defendant to try to keep the case in their chosen state court forum. In David v. Medtronic, Inc., 188 Cal. Rptr. 3d 103 (Cal. Ct. App. 2015), the California Court of Appeal affirmed a trial court’s rejection of this tactic, holding that it was proper to sever and dismiss the out-of-state residents based on forum non conveniens, despite the presence of a nominal defendant.
In David, 36 residents of various states were joined with a single California resident in a suit alleging injuries caused by the medical device Infuse. In addition to the makers of the product, plaintiffs joined an individual California physician whom they alleged played a part in developing the device. The defendants moved to (i) sever each plaintiff’s case; (ii) dismiss the non-California residents’ claims on the grounds of forum non conveniens; and (iii) transfer venue of the single California plaintiff’s claims to a different California county. The trial court granted all three requests.
The California appellate court first held that, while plaintiffs did not properly preserve their objection to severance, even if the issue were properly before the court the standards for permissive joinder were not met. It was not enough for plaintiffs to claim injury from the same type of device. Instead, the court found severance appropriate because plaintiffs “had different surgeries, performed by different surgeons, with different knowledge and exposure to different representations by” defendants.
The court then held that the forum non conveniens dismissal of the out-of-state residents was proper even though plaintiffs could not secure jurisdiction over the nominal defendant, Dr. Michelson, in any alternative forum. Typically, a defendant seeking dismissal based on forum non conveniens is required to show that the plaintiff can bring the lawsuit in a different and more suitable forum. But the court recognized that where a defendant is merely nominal, inability to secure jurisdiction over that defendant should not be an obstacle to dismissal. Although plaintiffs had effectively conceded that Dr. Michelson was merely a nominal defendant, the court also provided some guidance as to when a defendant is nominal, explaining that “it is apparent that establishing liability against Dr. Michelson . . . will be somewhat of an uphill battle . . . ancillary to the main war” of whether the manufacturing defendants are liable.
David thus offers a firm rebuke of plaintiffs’ forum-shopping techniques and should prove useful in future forum non conveniens challenges in California.