There is an interesting opinion last week in a medical malpractice case involving federal diversity in U.S. District Court in Baltimore. The truth is, most tort lawyers are not litigating in federal court very often unless they are doing mass torts. We have never had a malpractice case in federal court. But we do have products liability, admiralty law, and truck accident cases in federal court and we always have to take a deep breath when considering all of the issues that are uniquely federal. Like diversity.
In Robertson v. Iuliano, Plaintiff filed suit against St. Agnes and another in-state defendant and against a neurologist who lives in Washington, D.C. Diversity shouldn’t have been a problem because there is not complete diversity. But Plaintiff’s malpractice lawyer served the out-of-state doctor first which allowed the doctor’s lawyer to remove the case to federal court. The District Court, in an opinion by Judge Richard D. Bennett, denied Plaintiff’s motion to remand the case back to Baltimore City Circuit Court.
The purpose of this rule is to prevent the gamesmanship of plaintiffs’ lawyers who join defendants they never intend to serve to defeat diversity. But the rule creates more gamesmanship by defense lawyers who quickly remove a case that does not belong in federal court just because service is effectuated first on the out-of-state defendant.
The take-home message for malpractice lawyers suing an out-of-state defendant is clear: get service on the in-state defendants first.