Common Defense Rule Defeats Fraudulent Joinder Argument, Judge Rules

LEXINGTON, Ky. - A Kentucky federal judge has remanded a Paxil birth defect case to state court for the second time, ruling that the common defense rule defeats GlaxoSmithKline's fraudulent joinder argument. Smith v. GlaxoSmithKline, No. 11-56-ART (E.D. Ky.).

Judge Amul R. Thapar of the U.S. District Court for the Eastern District of Kentucky explained that if GSK could demonstrate that the non-diverse defendant is not liable, this showing would also defeat the plaintiff's entire case.

"GSK's showing manifestly goes to the merits of the action as an entirety, and not to the joinder," Judge Thapar explained. "As such, it …