Judge Says Learned Intermediary Defense Goes to Merits, Not Jurisdiction

EAST ST. LOUIS, Ill. - A federal judge has granted an Illinois Vioxx plaintiff's motion to remand for lack of subject-matter jurisdiction, stating that Merck & Co. Inc. cannot invoke the learned intermediary doctrine as a basis for showing fraudulent joinder of a non-diverse pharmacy. Nicol v. Merck & Co. Inc., et al., No. 06-926 (S.D. Ill.).

Chief Judge G. Patrick Murphy of the U.S. District Court for the Southern District of Illinois said in a Dec. 22 order that, in support of removal, Merck asserted no flaw specific to plaintiff John Nicol's joinder of Illinois-based Walgreen Co., but rather, …