Fraudulent Joinder Argument Shot Down in Federal Court in Mesothelioma Case

U.S. District Court Judge William M. Nickerson remanded an asbestos case back to Baltimore City Circuit Court, rejecting defendant’s efforts to remove the case to federal court because the defendant had joined non-diverse defendants.

The case is one of many asbestos cases on the docket in Baltimore City. Plaintiff alleges her mesothelioma was caused by exposure to asbestos from Colgate’s oldjudgetalcum powder. In answers to interrogatories, plaintiff identified Colgate’s Cashmere Bouquet talcum powder as the sole source of her asbestos exposure. In her June 2012 deposition, Barlow testified that she did not believe she suffered any other exposures.

There is a one-year limit on removal unless the court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.” Colgate tried to push the “unless” part of that rule, claiming the joinder was fraudulent.

The judge chided Colgate’s lawyers, saying he really was not sure what their argument was, but eventually assumed that Colgate was claiming that plaintiff had no intention of pursuing her claims against the Maryland defendants. But showing that a plaintiff did not intend to pursue a joint judgment is insufficient. Instead, Colgate had to show show that plaintiff has no intention of pursuing her claims and that no colorable ground for claiming such an intention existed. Because Colgate’s attorneys did not even really make an effort to do this, Judge Nickerson easily remanded the case back to Baltimore City. Which, is exactly where the plaintiffs want to be.

I’m pretty good at tracking Maryland state appellate opinions. I need to do a better job of keeping an eye on these new federal court opinions.

You can find the court’s opinion in Barlow v. John Crane here.

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