UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LINDA HALPERIN, et al., )

)

Plaintiffs, )

)

v. ) No. 11 C 9076

) Hon. Marvin E. Aspen

MERCK, SHARPE & DOHME CORP. and )

H.D. SMITH WHOLESALE DRUG CO., )

)

Defendants. )

MEMORANDUM ORDER AND OPINION

MARVIN E. ASPEN, District Judge:

In this products liability action, originally filed in the Circuit Court of Cook County,

Illinois, Plaintiffs allege that they suffered catastrophic personal injuries (and for some, death) as

a result of their ingestion of the prescription drug Fosamax. Plaintiffs generally allege that

Defendant Merck, Sharpe & Dohme Corp. (“Merck”) “designed, manufactured, marketed,

advertised, distributed and sold Fosamax,” (Compl. ¶ 11) while Defendant H.D. Smith

Wholesale Drug Co. (“H.D. Smith”) served as a wholesale drug distributor of Fosamax (id. ¶

12). Plaintiffs’ complaint asserts claims against Defendants for strict liability, negligence, and

breaches of warranty.

Presently before us are three motions: (1) Plaintiffs’ motion for remand to state court for

lack of subject matter jurisdiction; (2) Merck’s motion to stay the proceedings pending transfer

of the case by the Judicial Panel on Multidistrict Litigation (“JPML”) into a multi-district

litigation action in the District of New Jersey; and (3) H.D. Smith’s motion to dismiss the claims

against it. As we find Plaintiffs’ motion to remand to be dispositive, we need not address the

remaining motions filed by Merck (Dkt. No. 7) and H.D. Smith (Dkt. No. 11). For the reasons
set forth below, we grant Plaintiffs’ motion and remand this case to the Circuit Court of Cook

County.

STANDARD OF REVIEW

Defendants can remove cases filed in state court to federal court pursuant to 28 U.S.C.

§ 1441(a) when: (1) the plaintiff properly commenced the action in state court; and (2) the

federal court has original jurisdiction. See Nuclear Eng’g Co. v. Scott, 660 F.2d 241, 248 (7th

Cir. 1981). A federal court has original jurisdiction where diversity of citizenship exists among

all parties and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a)(1). “The party

seeking removal has the burden of establishing federal jurisdiction, and federal courts should

interpret the removal statute narrowly, resolving any doubt in favor of the plaintiff’s choice of

forum in state court.” Schur v. LA Weight Loss Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009); 

Boyd v. Phoenix Funding Corp., 366 F.3d 524, 549 (7th Cir. 2004) (“[T]he party seeking to

invoke federal jurisdiction . . . bears the burden of demonstrating that removal is proper.”); Doe

v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993) (“Any doubt regarding jurisdiction

should be resolved in favor of the states.”); Alsup v. 3–Day Blinds, Inc., 435 F. Supp. 2d 838,

841 (S.D. Ill. 2006). Here, Defendant Merck, a citizen of New Jersey, removed the case based

on diversity jurisdiction on December 21, 2011. (Notice of Removal ¶ 14.) Merck premised its

removal on the theory that H.D. Smith, an Illinois citizen, was fraudulently joined in this matter. 

(Id. ¶¶ 15–18.) 

“Diversity jurisdiction cannot be destroyed by joinder of nondiverse parties if such

joinder is fraudulent.” Gottlieb v. Westin Hotel Co., 990 F.2d 323, 327 (7th Cir. 1993). As

Merck asserted in its removal, “[i]n determining whether there is diversity of citizenship, parties

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fraudulently joined are disregarded.” Id. Fraudulent joinder can be established in two ways:

(1) by showing that “there is no possibility that a plaintiff can state a cause of action against

nondiverse defendants in state court,” or (2) by demonstrating that there was actual fraud in the

plaintiff’s pleading of jurisdictional facts. Id. Defendants have not argued that Plaintiffs

fraudulently pled the jurisdictional facts. Accordingly, they “must show that after resolving all

issues of fact and law in favor of the plaintiff, the plaintiff cannot establish a cause of action

against the in-state defendant.” Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992)

(emphasis in original). In other words, “the district court must ask whether there is any

reasonable possibility that the plaintiff could prevail against the non-diverse defendant.” Schur,

577 F.3d at 764 (internal quotation omitted); Poulos, 959 F.2d at 73 (describing the analysis as

an “act of prediction” whereby the court considers “if there is any reasonable possibility that a

state court would rule against the non-diverse defendant”). The burden of establishing

fraudulent joinder is heavy, resting with the out-of-state defendant seeking removal. Poulos, 959

F.2d at 73; see Schur, 577 F.3d at 764. In fact, courts have repeatedly stated that the test for

fraudulent joinder is even more favorable to the plaintiff than the standard for deciding a motion

to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Schur, 577 F.3d at 764

(collecting cases); see also Whelchel v. Briggs & Stratton Corp., No. 11 C 4595, 2012 WL

404499, at *4 (N.D. Ill. Feb. 7, 2012); Rutherford v. Merck & Co., 428 F. Supp. 2d 842, 847

(S.D. Ill. 2006). 

ANALYSIS

In their oppositions to Plaintiffs’ motion, as well as the briefing for their own motions,

Defendants raise a number of arguments as to why the case against H.D. Smith must fail and

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diversity jurisdiction therefore exists. Many of these arguments focus on Plaintiffs’ failure to

warn and breach of warranty claims against Defendants. After careful review of all the materials

before us, we focus on Plaintiffs’ strict liability design defect claim against H.D. Smith and find

that it that deprives us of jurisdiction. As a result, we will not address the merits of the parties’

additional arguments, including Defendants’ contention that Plaintiffs’ claims based on failure to

warn are preempted pursuant to PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011) (holding that

plaintiffs’ state law failure to warn claims against generic manufacturers were preempted), or

precluded by the learned intermediary doctrine pursuant to Walton v. Bayer Corp., 643 F.3d 994

(7th Cir. 2011) (applying the doctrine to pharmacies because they have no duty to warn about all

the potential side effects of a drug unless they have independent knowledge of a particular

customer’s susceptibilities).

A. The Design Defect Allegations

Despite Defendants’ insistence (see H.D. Smith Reply ISO Mot. to Dismiss at 2–3,

Merck’s Resp. Opp’n Mot. to Remand n.3), the complaint plainly includes a state law strict

liability claim based on defective design against H.D. Smith as well as Merck. Under

longstanding Illinois law, a plaintiff pursuing a strict liability claim for design defect must

allege: “(1) a condition of the product as a result of manufacturing or design, (2) that made the

product unreasonably dangerous, (3) and that existed at the time the product left the defendant’s

control, and (4) an injury to the plaintiff, (5) that was proximately caused by the condition.” 

Mikolajczyk v. Ford Motor Co., 231 Ill.2d 516, 543, 901 N.E.2d 329, 345 (Ill. 2008); see Sollami

v. Eaton, 201 Ill.2d 1, 7, 772 N.E.2d 215, 219 (Ill. 2002); see, e.g., Suvada v. White Motor Co.,

32 Ill.2d 612, 618–21, 210 N.E.2d 182, 186–87 (Ill. 1965). Here, Plaintiffs allege that Merck

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designed and manufactured Fosamax, which failed to perform safely when used by ordinary

consumers as intended, or in a reasonably foreseeable manner, due to its defective nature. 

(Compl. ¶¶ 11, 13, 43–48, 53, 82, 128; see also id. ¶¶ 21–39 (alleging Fosamax’s dangerous

propensities as a biphosphonate, as well as Merck’s failures to recognize those dangers, conduct

studies and surveillance, and warn of the side effects).) H.D. Smith distributed and sold the

defective Fosamax ingested by Plaintiffs and thus “was a merchant in the chain of distribution.” 

(Id. ¶¶ 1, 8, 12. 54, 81, 127.) Plaintiffs further allege that the Fosamax manufactured by Merck

and distributed by H.D. Smith “was expected to reach and did reach consumers . . . without

substantial change in the condition in which it was manufactured and sold.” (Id. ¶ 43.) Finally,

Plaintiffs allege that, as a direct and proximate result of their long-term use of Fosamax, they

suffered suppressed bone turnover, femur fractures, severe mental and physical pain and

suffering, permanent injuries, and emotional distress. (Id. ¶¶ 46–48; see also id. ¶¶ 57, 84–85,

130–31.) These allegations speak to each of the required elements of a strict liability design

defect claim against Defendants.

Merck concedes that Plaintiffs assert a design defect claim against it but contends that the

complaint does not articulate such a claim against H.D. Smith because H.D. Smith did not

“design” Fosamax. (See Merck Opp’n at 5 n.3.) This argument disregards well-settled Illinois

precedent holding that “all entities in the distributive chain of an allegedly defective product,

including manufacturers, sellers, wholesalers, distributors and lessors of the product, are strictly

liable in product liability actions for injuries resulting from that product.” Murphy v. Mancari’s

Chrysler Plymouth, Inc., 381 Ill. App. 3d 768, 772–73, 887 N.E.2d 569, 574 (1st Dist. 2008)

(citing Kellerman v. Crowe, 199 Ill.2d 111, 113, 518 N.E.2d 116, 117 (Ill. 1987)). Strict liability

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attaches to all links in the distributive chain, without regard to a particular link’s knowledge or

culpability, because the “focus in a strict liability action is on the product.” Murphy, 381 Ill.

App. 3d at 773, 887 N.E.2d at 574–75. Thus, the “inability of a defendant to know of or prevent

the risk is not a defense because fault is not an issue.” Id. at 772, 887 N.E.2d at 574. Under

Illinois law, and barring certain circumstances discussed below, H.D Smith may be liable to

Plaintiffs based on Fosamax’s alleged design defect despite the fact that it had no role in the

actual design process. 

H.D. Smith, however, contends that the Supreme Court’s decision in Mensing must be

extended here to bar any design defect claim asserted by Plaintiffs. (H.D. Smith Reply ISO Mot.

to Dismiss at 4–5.) In Mensing, the Court considered whether federal law preempted state tort

failure to warn claims brought against generic drug manufacturers. The Court found that

applicable state laws imposed a duty on all drug manufacturers (brand name and generic) to

adequately label their products, while federal regulations prohibited generic drug manufacturers

from altering the drug safety labels established by the brand name manufacturer with the Food

and Drug Administration (“FDA”). Mensing, 131 S. Ct. at 2577. The state law claims based on

failure to warn were thus preempted because the generic drug manufacturers could not fulfill

both their state law duty to provide a safer, better label for consumers and their federal duty to

use only the FDA-approved label, without independent modification. Id. at 2577–78. 

H.D. Smith argues that this reasoning applies with equal force to design defect claims because,

as a distributor, it had no authority or duty to alter the allegedly defective design of Fosamax. 

(H.D. Smith Reply ISO Mot. to Dismiss at 4–5.) We disagree. 

Neither the Mensing opinion, nor the underlying proceedings in the Fifth and Eighth

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Circuits, directly address strict liability design defect claims. Moreover, while H.D. Smith’s

argument has some intuitive appeal, it again ignores governing principles of strict liability. 

Illinois law does not base H.D. Smith’s potential liability on any failure to comply with a state

law duty, like the affirmative duty to warn at issue in Mensing. As discussed earlier, strict

liability based on a design defect generally applies to all entities in the chain of

commerce—including distributors—regardless of culpability, duty, knowledge, or fault. 

Murphy, 381 Ill. App. 3d at 772–73, 887 N.E.2d at 574–75. Stated more simply: H.D. Smith is

not being sued for violating a state law duty to design safe pharmaceuticals and, thus, no conflict

arises.1

 Ultimately, even if we were inclined to agree with H.D. Smith about the reach of the

Mensing decision, we are bound to resolve such an open question of law in Plaintiffs’ favor

when assessing the remand motion. Poulos, 959 F.2d at 73. For these reasons, we conclude that

Plaintiffs “could establish a cause of action against” H.D. Smith. Id.

B. Applicability of § 2-621 to H.D. Smith

The primary issue before us, as argued in earnest by H.D. Smith, is that the claims

against it must fall because it has availed itself of a state law mechanism that allows

nonmanufacturers to avoid strict liability. (Mot. to Dismiss at 5–8; H.D. Smith Reply ISO Mot.

1

 The factual background here thus differs from the facts in the cases cited by H.D. Smith. 

For example, H.D Smith refers us to In re Fosamax (Alendronate Sodium) Products Liab. Litig. (No.

II), No. 08-008, 2011 WL 5903623, at *6 (D.N.J. Nov. 21, 2011) for the proposition that Mensing

applies to design defect claims. There, however, the plaintiffs alleged that the defendant generic

manufacturers should have designed the “alendronate sodium . . . differently to comply with state

tort law.” Id. *6. No such allegations are made here against H.D. Smith, a distributor. Moreover,

our research indicates that most of the courts in other jurisdictions who have dismissed design defect

claims against generic manufacturers under Mensing have done so where they find the allegations

to be repackaged or thinly-veiled failure to warn claims, or where the plaintiff has blatantly failed

to state a claim under Rule 12(b)(6). We do not find such reasoning persuasive here, however,

where the complaint raises strict liability design defect claims apart from the failure to warn claims.

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to Dismiss at 7–10; H.D. Smith Opp’n Mot. to Remand at 11–15.) Pursuant to 735 ILCS 5/2-

621—commonly known as the “seller’s exception” though equally applicable to distributors—“a

nonmanufacturer defendant in a strict product liability action may be dismissed from the action if

it certifies the correct identity of the manufacturer of the product which allegedly caused the

injury.” Murphy, 381 Ill. App. 3d at 773, 887 N.E.2d at 574–75; see 735 ILCS 5/2-621(a)–(b);

Lamkin v. Pace, 138 Ill.2d 510, 531–33, 563 N.E.2d 449, 458–59 (Ill. 1990); Whelchel, 2012

WL 404499, at *5. Once the nonmanufacturer defendant has filed the necessary affidavit and the

statutory prerequisites are met, dismissal of that defendant is mandatory unless the plaintiff can

show that the seller or distributor “(1) participated in the design or manufacture of the product,

(2) had actual knowledge of the defect in the product, or (3) created the defect in the product.” 

Whelchel, 2012 WL 404499, at *5; Lamkin, 138 Ill.2d at 532–33, 563 N.E.2d at 459; Murphy,

381 Ill. App. 3d at 770–71, 887 N.E.2d at 573–74; see 735 ILCS 5/2-621(a)–(c). In addition,

even after dismissal of a nonmanufacturer defendant, the plaintiff may reinstate the action in

certain circumstances, including inter alia, where the plaintiff can show that the statute of

limitations bars the claim against the manufacturer or the manufacturer is judgment proof. 735

ILCS 5/2-621(b); Murphy, 381 Ill. App. 3d at 771, 887 N.E.2d at 573 (“A plaintiff may move at

any time for reinstatement of a previously dismissed defendant if an action against the product

manufacturer would be impossible or unavailing.”); see Kellerman, 199 Ill.2d at 114, 518 N.E.2d

at 118.

In an effort to extricate itself from these proceedings under § 2-621—and thereby

eliminate the fraudulent joinder question—H.D. Smith submitted affidavits from a corporate vice

president, Thomas Twitty. (1/11/12 Twitty Aff. (Dkt. No. 11-1) & 1/25/12 Suppl. Twitty Aff.

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(Dkt. No. 22-1).) In his initial affidavit, Mr. Twitty identifies Merck as the manufacturer of the

drug. (1/11/12 Twitty Aff. ¶ 9.) Mr. Twitty states that H.D. Smith did not manufacture, design

or create Fosamax. (1/11/12 Twitty Aff. ¶¶ 8–14; 1/25/12 Suppl. Twitty Aff. ¶¶ 17–23.) He also

states that H.D. Smith had no knowledge of the alleged defects of, or dangers posed by,

Fosamax. (1/11/12 Twitty Aff. ¶¶ 8–14; 1/25/12 Suppl. Twitty Aff. ¶¶ 22–23, 26, 28.) On their

face, the affidavits would appear to satisfy the statutory requirements of § 2-621 and, moreover,

refute Plaintiffs’ allegation that “H.D Smith knew or should have known of the dangerous

propensities of Fosamax.” (See Compl. ¶ 82). According to H.D. Smith, it is thus entitled to

dismissal under § 2-621, leaving Merck to its own devices here in federal court.

The parties contest whether Plaintiffs’ allegations are sufficient for purposes of § 2-

621(c)(2) to survive Mr. Twitty’s disavowals on behalf of H.D. Smith. We need not reach that

issue today, however.2

 As described earlier, § 2-621(b) permits a plaintiff at any time to seek

reinstatement of a previously-dismissed nonmanufacturer defendant if the statute of limitations

bars the claim against the manufacturer. 735 ILCS 5/2-621(b)(1). For us, the question boils

2

 Plaintiffs contend that remand is required because dismissal of H.D. Smith under § 2-

621(b), even if appropriate, is not a final order given the lingering possibility that H.D. Smith will

be recalled as a nondiverse defendant in the future. (Mot. for Remand at 9; Reply ISO Mot. for

Remand at 7.) As noted by the parties, judges within the Northern District have come out on both

sides of this issue. For example, several courts have held that § 2-621 “cannot be the basis for

fraudulent joinder because any dismissal is merely conditional.” Kopitke v. Depuy Orthopaedics,

Inc., No. 11 C 912, 2011 WL 856865, at *3 (N.D. Ill. Mar. 8, 2011) (collecting cases). At least three

judges have recently found, however, that Plaintiffs’ categorical view “does not square with the

fraudulent joinder test adopted by Poulos,” which “requires application of the reasonable possibility

test to each case.” Steel v. Ford Motor Co., No. 11 C 460, 2011 WL 1485380, at *5 (N.D. Ill. Apr.

19, 2011); Whelchel, 2012 WL 404499, at *5–6; Shi v. Am. Honda Motor Co., No. 11 C 2682, 2011

WL 5403618, at *2 (N.D. Ill. Nov. 8, 2011). We need not weigh in on this debate in light of our

ruling that the particular facts present here warrant remand, regardless of the nature of a § 2-621

dismissal.

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down to “whether there is a ‘reasonable possibility’ that the Plaintiff[s] will be unable to recover

from the manufacturer for one of the reasons stated in § 2-621(b).”3 Whelchel, 2012 WL

404499, at *6; see Poulos, 959 F.2d at 73. Here, Merck has expressly pled as its first

affirmative defense that “each and every claim asserted or raised in the Complaint is barred by

the applicable statute of limitations.” (Merck Ans. at 27 ¶ 1.) At this point in the lawsuit, we

have no cause to question the reasonableness of Merck’s statute of limitations defense. If Merck

is successful (as we assume it intends to be), Plaintiffs can at any time drag H.D. Smith back into

the foray, where it may be strictly liable for injuries caused by the product Merck designed. On

these facts, Merck cannot meet its heavy burden of showing that there is no reasonable

possibility that H.D. Smith will be reinstated by operation of § 2-621(b)(1), thus destroying

diversity. Schur, 577 F.3d at 764; Poulos, 959 F.2d at 73. Because Merck has failed to establish

fraudulent joinder, we lack jurisdiction over this matter.

 

 

Marvin E. Aspen

United States District Judge

Dated: Chicago, Illinois

April 10, 2012

3

 The parties dispute several ancillary issues about H.D. Smith’s claim for dismissal under

§ 2-621, including, for example, how heavily we may rely on affidavits at this stage and whether the

§ 2-621 analysis matters here because jurisdiction is evaluated at the time of removal and the claim

for dismissal based on Mr. Twitty’s affidavits arose after removal. (See Mot. to Remand at 9; Reply

ISO Mot. to Remand at 1–2, 8.) Though interesting, these arguments are not germane to our

analysis. 

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CONCLUSION

For the reasons set forth above, and bearing in mind that we resolve all doubts about our

jurisdiction in favor of remand, we grant Plaintiffs’ motion. This case is hereby remanded to the

Circuit Court of Cook County, Illinois. Defendants’ pending motions are stricken. It is so

ordered.

________________________________

Honorable Marvin E. Aspen

U.S. District Court Judge

Dated: April 10, 2012

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