Remand in Meso Case Denied Upon Finding that Common Defense Exception Inapplicable

U.S. District Court C.D. of Illinois, February 25, 2020

ILLINOIS – The plaintiff sued several defendants alleging that Roy Hicks developed mesothelioma as a result of his exposure to asbestos for which the defendants were allegedly responsible. Specifically, Mr. Hicks alleged exposure to asbestos while working for the City of Bloomington, where he encountered asbestos from vehicles made by Ford, and others. He also alleged exposure to products from John Crane as a result of his wife’s work at General Electric. As trial approached, the other defendants either settled or were dismissed. John Crane moved for summary judgment on product identification. The court granted the motion and Ford removed the case on grounds on diversity. The plaintiffs moved for remand.

The court began its analysis and stated that the real issue is whether John Crane remained a party to the case. Based on the Voluntary/Involuntary Rule, the defendant would not be able to remove the case. Here, John Crane’s dismissal was involuntary because it was done over the plaintiff’s objections. The next obstacle for the court was to determine whether fraudulent joinder would permit removal. The plaintiff took the position that the grant of summary judgment did not trigger fraudulent joinder. The defendant relied on the Chambers case whereby the court found that “token resistance” to summary judgment was “insufficient to suggest that plaintiff had any chance of success on appeal.” The court agreed considering the plaintiff filed no written opposition. No new evidence was available to suggest that the plaintiff could win on appeal and it was implausible to think that John Crane would be brought back into the case. Lastly, the plaintiff argued that the Common Defense Exception applied in this matter to defeat a finding of fraudulent joinder. Essentially, the plaintiff argued that his claim against John Crane was just as valid as his claim against Ford. The court rejected this argument as his claim against John Crane came from his wife’s work at General Electric whereas his claim against Ford was a result his own direct exposure. The Common Defense Exception did not apply. Accordingly, the plaintiff’s motion for remand was denied.

Read the case decision here.