We confess that among the many benefits of being a DDL blogger, one of our favorites is our ability to have a little fun.  Let’s face it, legal writing can sometimes be a bit boring. Try as we might, it tends toward being dry.  Even when railing against grave injustices, we need to be organized and strategic; we need to include often mundane facts and details; we need to discuss dense, arcane legal precedent.  But here, we can compare a legal decision to the most recent episode of theWalking Dead.  We can interweave sports loyalties with discussions of local court trends.  And we’ve never had to hide our bias – if we don’t like something, we tell you.

We imagine judges sometimes get bored too.  And that leads to opinions such as Justice Scalia’s glib dissent in PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001) – funny even for those who don’t like golf.  Another classic is Noble v. Bradford Marine, Inc., 789 F. Supp. 395 (S.D. Fla. 1992) in which the judge peppered his decision with lines from the movie “Wayne’s World” -- holding that defendant’s “most bogus” attempt at removal is “not worthy” and finding that the defendant must “party on” in state court. Sections of the opinion are labeled "Hurling Chunks" and "A Schwing and a Miss."  And there is any number of examples of decisions written in verse.

So, when we were reading the case for today’s post – granting a plaintiff’s motion to remand and rejecting defendants’ fraudulent joinder argument – we knew we wouldn’t be celebrating the result.  But we can tip our caps to the prose.  Not often do you find this smattering of words and phrases in a single decision:  “checkered history,” “potential hitch,” “time bomb,” “hangover,” and “tyranny of labels.”  It’s not a poem and it doesn’t read like a mystery novel, but it made the read a little more enjoyable.  And that’s about the only thing that made it enjoyable.

The case is Barnett v. Smith & Nephew, Inc., 2015 U.S. Dist. LEXIS 30252 (N.D. Ill. Mar. 11, 2015) and concerns allegations of a defective hip implant.  Plaintiff sued the distributor as well as the manufacturer.  In this situation, the distributor employs the sales representatives who are out in the field.  Defendants removed the case to federal court and alleged that the distributor, who is an Illinois resident, was fraudulently joined.  Id. at *2.  The fraudulent joinder argument was based on an Illinois statute that provides for dismissal of non-manufacturers in products liability cases when certain conditions are met.  Id. at *5.  That statute does not apply if “the defendant had actual knowledge of the defect in the product which caused the injury.”  Id. at *6.

This is where even colorful language can’t save the opinion for us.  The court found a genuine issue of factual dispute regarding the knowledge of the distributor based on the following erroneous conclusion:

[Paragraphs in the Amended Complaint] flesh out a degree of involvement on the part of [the distributor] that goes far beyond the ordinary sales activities most typical of the distributorship relationship. . . . and describe a wholly atypical degree of distributor involvement on the part of [the distributor], in which two of its people were actually present in the operating room. 

Id. at *6-7.  We’ve said it before and we’ll likely have to say it again and again and again – company representatives in the operating room are a real, valuable, everyday occurrence. Doctors will tell you that.  Nurses will tell you that. Manufacturers will tell you that.  For some reason, courts just don’t get it.  As soon as presence in the operating room is mentioned, courts think something untoward is happening and that simply is not the case.  For a medical device like a hip implant that is made of multiple components of varying sizes, company representatives who can help identify the sizes and pieces for the nurses and operating staff are vital to successful surgeries.  Moreover, the representatives are almost always outside the surgical field – meaning they never come in direct contact with the device or the patient.  How any of that can equate to “actual knowledge” of a defect we just don’t know.

We aren’t going to solve this misperception today or even tomorrow – but we’re certainly going to keep thinking about it.  Like anything else, we are going to need to build some precedent to gain any ground – and we won’t care if it’s written as a song, a tale, a jingle or haiku.  We’ll take it any way we can get it.