Yesterday we brought you some welcome news on the pharmacy front in the never-ending struggle against fraudulent joinders. But outside of certain parts of Illinois, we’ve generally done OK where the fraudulently joined party is a pharmacy.
Today, we feature a rarer bird – a court’s decision that a claim brought against a local distributor also constituted fraudulent joinder. The case is Askew v. DC Medical, LLC, 2011 WL 1811433 (N.D. Ga. May 12, 2011), decided under Georgia law. That’s important, because the law concerning distributors is not nearly as uniform as the 48-state consensus against pharmacy liability mentioned in yesterday’s Walton case.
Askew is a device case – not surprising because medical device companies tend to have networks of local product distributors more than do pharmaceutical companies. To support the claim of fraudulent joinder, the defendant submitted a “declaration” by the distributor that:
• It “did not know of any alleged defect in the . . . device before it was distributed for use in Plaintiff's surgery.”
• It “was not involved in the design, manufacture, testing, or regulatory approval of the . . . device.”
• It “was not involved in the promotional, marketing, description, or application materials for the ASR device.”
• That the distributor received the device “already labeled and sealed” and did not disturb it.
2011 WL 1811433, at *1, 6.
The court held that the declaration put the onus on the plaintiff to offer more than bare legal conclusions in response. Id. at *5. Under Georgia law, “[a] distributor can be held liable for negligent failure to warn only if, at the time of the sale, it had actual or constructive knowledge that its product created a danger for the consumer.” Id. at *4 (citation and quotation marks omitted).
Please see full article below for more information.