Subsection (D) Of H.R. 985: Misjoinder Of Plaintiffs In Personal Injury And Wrongful Death Actions. Is The Proposed Legislation Necessary To Block Litigation Tourism?

October 25, 2017 Published Work
The Defense, Fall 2017

Plaintiffs in pharmaceutical personal injury litigation frequently join non-diverse, non-resident claims with those of resident plaintiffs in order to have all claims heard in a favorable state court. The proposed Fairness in Class Action Litigation Act of 2017 addresses this problem, commonly referred to as "litigation tourism."[1] Subsection (d) of the Act would permit defendants to remove on the basis of diversity jurisdiction, and to sever and remand to state court any claims that do not satisfy the requirements of diversity jurisdiction.[2] The proposed legislation permits the federal court to retain jurisdiction over the remaining claims that are diverse. The House of Representatives passed the Act, but the Senate is not likely to approve it.

Defense lawyers do not despair. Recent Supreme Court decisions have seriously eroded "litigation tourism." As discussed below, Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco,[3] can prevent non-resident, non-diverse plaintiffs from depriving defendants of their right to remove the claims of resident plaintiffs to a federal forum on the basis of diversity jurisdiction. So despite the lack of progress on a legislative end to litigation tourism, the defense bar now can rely on Supreme Court authority to curb this abuse.

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[1] See Subsection (d), "Misjoinder of Plaintiffs in Personal Injury and Wrongful Death Claims," p. 9, line 7 of H.R. 985.

[2] Once remanded to state court, defendants could move to dismiss the remanded non-resident, non-diverse claims for lack of personal jurisdiction or forum non conveniens.

[3] 137 S.Ct. 1773 (2017).