Judge Declines to Rule on Jurisdiction in NEC Cases

In a Monday opinion, a Northern District of Illinois judge declined to rule on a bid by Abbott Laboratories to keep a subset of multidistrict litigation against it in federal court. The underlying cases allege that Abbott, among others, was negligent in selling infant formula that caused necrotizing enterocolitis (NEC).

According to the opinion, Abbott urged the court to bar remand of a subset of cases in the multidistrict litigation, those originally removed from Pennsylvania state court. Those cases were brought against not only Abbott but also Pennsylvania hospitals, defeating diversity jurisdiction, the opinion recounts. The defendant argued that the hospitals were fraudulently joined solely for the purpose of keeping the case in state court.

The court rejected the fraudulent joinder claims, questioning the defendant’s use of evidence of the intent of plaintiff’s counsel; the opinion states that intent is not the applicable standard for fraudulent joinder. Instead, the court says, “under controlling law the fraudulent joinder standard turns on whether Plaintiffs have a viable claim against the Defendant Hospitals under Pennsylvania law.”

While the court found that the plaintiffs indeed had a viable state law claim, they did find that the plaintiffs did not comply with a state law requirement to file a certificate of merit in certain cases. On this issue, the court invited supplemental briefing, to be filed next month.