Much Ado About Misjoinder: An Alternative to Fraudulent Misjoinder to Preserve Defendants’ Right to Removal in Pharmaceutical and Medical Device Products Liability Cases

Authors

Alexander Flaum, Benjamin N. Cardozo School of Law

Abstract

Unresolved questions surrounding the contours of the fraudulent misjoinder doctrine have understandably led to reluctance by courts to adopt it, despite its utility in protecting defendants’ access to federal court. This is particularly troubling in the context of pharmaceutical and medical device products liability cases. It is common in these actions for plaintiffs, whose only connection is having consumed a particular pharmaceutical product at different points in time and for different durations, to strategically join in one action to defeat complete diversity and prevent removal to federal court. However, federal courts are not powerless to prevent such procedural gamesmanship. By relying on discretionary severance under Federal Rule of Civil Procedure 21, courts can avoid many of the pitfalls that have made them reluctant to adopt the fraudulent misjoinder doctrine, while also protecting defendants’ access to federal courts. Using Rule 21 in the proposed manner also recognizes both the immense difficulty of litigating and trying these cases with a great number of joined plaintiffs, and the fact that prejudice to plaintiffs will typically be minimal given the likelihood that cases will be consolidated through multidistrict litigation (“MDL”).

Disciplines

Civil Procedure | Jurisdiction | Law

Recommended Citation

Alexander Flaum, Much Ado About Misjoinder: An Alternative to Fraudulent Misjoinder to Preserve Defendants’ Right to Removal in Pharmaceutical and Medical Device Products Liability Cases, 47 Cardozo L. Rev. 703 (2026).
Available at: https://larc.cardozo.yu.edu/clr/vol47/iss2/22