Products Liability Law Reporter

A federal district court held that the joinder of two Kentucky supplier defendants in a defective respirator suit was not fraudulent and, therefore, remand of the case to state court was warranted.

Three Kentucky coal miners who wore respirators manufactured or distributed by various defendants developed black lung. They brought a Kentucky state lawsuit against manufacturing and supply defendants, including 3M Co., alleging negligence and strict liability. 3M removed the case to federal court, citing diversity jurisdiction and arguing that the plaintiffs had fraudulently joined the Kentucky supplier defendants. The plaintiffs moved to remand the case to state court.

Granting the motion, the district court noted that a party invoking removal jurisdiction must demonstrate complete diversity of citizenship at the time of removal absent a federal question. Citing case law, the court added that joinder of a nondiverse party destroys complete diversity, and the removing defendant must prove fraudulent joinder to avoid remand. Here, the court noted that the defendant cited the plaintiff’s purported failure to engage in discovery with or develop a case against the supplier defendants as grounds for its fraudulent joinder argument. Joinder of a nondiverse defendant is fraudulent only where it is clear there can be no recovery against that defendant, the court noted, adding that the removing party must show there is no colorable basis for recovery.

Applying these principles, the court concluded that the plaintiffs had met their burden of showing a colorable basis for recovery against the supplier defendants. Under Kentucky law, the court said, distributors and suppliers are not absolved from liability when they knew or should have known of a product’s defect. The plaintiffs’ complaint, which cites publications placing the defendants on notice of the respirators’ alleged defects, provides the basis for the plaintiffs’ claims, the court found. Additionally, the court noted that the plaintiffs were not required to present factual evidence from discovery to avoid a finding of fraudulent joinder.

Finally, the court rejected the defense argument that the plaintiffs’ attorneys had engaged in a broad pattern or practice of joining nondiverse defendants to avoid removal and that this was evidence of fraudulent joinder. Plaintiff counsel were not involved in many of the past dust mask cases to which the defendant refers, the court reasoned.

Consequently, the court remanded.

Citation: Castle v. 3M Co., 2023 WL 2663242 (E.D. Ky. Mar. 28, 2023).

Plaintiff counsel: D. Tyler Roberts, AAJ member Matthew C. Minner, Todd W. Burris, and AAJ member Brian M. Vines, all of Lexington, Ky.; AAJ members James R. Moncus III, Christopher S. Randolph Jr., Jason W. Earley, Scott A. Powell, and Tempe D. Smith, all of Birmingham, Ala.; and Joseph E. Lambert, Mt. Vernon, Ky.