In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3462
C ATHY M. W ALTON,
Plaintiff-Appellant,
v.
B AYER C ORPORATION, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:09-cv-10217-DRH-PMF—David R. Herndon, Chief Judge.
A RGUED M ARCH 31, 2011—D ECIDED M AY 23, 2011
Before C UDAHY, P OSNER, and M ANION, Circuit Judges.
P OSNER, Circuit Judge. The plaintiff, a citizen of Illinois,
brought suit in an Illinois state court against a number
of Bayer affiliates, all citizens of states other than Illinois,
plus Niemann Foods, Inc., an Illinois citizen. The suit
charges the defendants with violating Illinois tort law
by failing to warn of dangerous side effects of Yazmin,
a prescription oral-contraceptive drug manufactured by
a German affiliate of the Bayer defendants (the manu-
2 No. 10-3462
facturer is not a defendant) and bought by the plaintiff
at a pharmacy operated by Niemann; she claims to have
been seriously injured by the side effects. Despite the
absence of complete diversity of citizenship because
Niemann was joined as a defendant, the Bayer defen-
dants removed the case to federal district court, arguing
that the plaintiff had improperly joined Niemann to
eliminate complete diversity of citizenship—a precondi-
tion to removing this case to federal court because there
is no federal-law claim. The plaintiff asked the district
judge to remand the case to state court. He refused,
instead dismissing Niemann as a defendant, with preju-
dice, thus restoring complete diversity. The plaintiff
seeks reversal of the judge’s order.
The defendants challenge our jurisdiction. They point
out that the appeal is not from the order dismissing
Niemann and denying the plaintiff’s motion to remand
the case to state court. That order did not end the litiga-
tion in the district court, and so was an interlocutory
order—and not an appealable interlocutory order either.
The plaintiff hadn’t asked the district court to make
the dismissal of Niemann a partial final judgment
appealable under Fed. R. Civ. P. 54(b) or invoked any
other exception to the final-decision rule (28 U.S.C.
§ 1291). The appeal is not from the order that the plain-
tiff wants us to appraise but from the district court’s
subsequent dismissal of the entire suit, with prejudice,
as punishment for her failure to comply with the
district judge’s subsequent order to respond to a dis-
covery demand by the defendants. Fed. R. Civ.
P. 37(b)(2)(A)(v); Société Internationale pour Participa-
No. 10-3462 3
tions Industrielles et Commerciales, S.A. v. Rogers, 357 U.S.
197, 206-08 (1958); Dotson v. Bravo, 321 F.3d 663, 667
(7th Cir. 2003). She ignored that order because she’d
abandoned the litigation when the judge refused to
remand the case to state court.
The dismissal of the entire suit as a discovery sanction
was of course a final and therefore appealable judgment.
But the defendants, citing Sere v. Board of Trustees, 852
F.2d 285, 288 (7th Cir. 1988), argue that a plaintiff
should not be permitted to convert an interlocutory
order to a final judgment by walking away from the
litigation. Sere, however, was a peculiar case that bears
only superficial resemblance to this one. The plaintiff
had advanced two claims. The district court dismissed
one under Rule 12(b)(6) and the case continued on the
other claim until the plaintiff flouted a discovery order,
whereupon the district court entered a final judgment
dismissing the entire case with prejudice. The plaintiff
argued on appeal that this punitive dismissal should
have been limited to the second claim, thus allowing
him to appeal from the dismissal of the first. We
rejected the argument, 852 F.2d at 288-89, noting that
the violation of the discovery order had deprived the
defendant of discovery relating to the first claim as well
as to the second.
There is nothing like that here. Nor is this a case in
which a litigant tries to get an interlocutory appeal on
one claim by seeking dismissal of another one, without
prejudice, that he plans to reinstate—an impermissible
tactic for circumventing the final-decision rule. E.g., Ash
4 No. 10-3462
v. Cvetkov, 739 F.2d 493, 497 (9th Cir. 1984). Because
our plaintiff wagered her entire claim on being proved
right about jurisdiction, considerations of judicial econ-
omy justified immediate appellate review. For had
the plaintiff complied with the discovery order and
continued to prosecute her case in the district court, and
lost, and then had successfully appealed on the ground
that the district court lacked jurisdiction, the case would
have had to be remanded to the state court—and since
the basis of the remand would have been an absence
of federal jurisdiction over the suit, the parties would
have had to relitigate the case from scratch. Board of
Trustees, Sheet Metal Workers’ National Pension Fund v.
Elite Erectors, Inc., 212 F.3d 1031, 1034-35 (7th Cir. 2000).
So we have jurisdiction over the appeal, but is there
federal jurisdiction over the case? The plaintiff makes
three arguments that there isn’t. The first is that she has
not alleged that her damages exceed $75,000, only that
they exceed $50,000, and so the case does not satisfy a
prerequisite of federal diversity jurisdiction. But the
litany of injuries she claims to have sustained, which
include but are not limited to “future thromboembolic
events, which are permanent and lasting in nature, physi-
cal pain and mental anguish, diminished enjoyment of
life, medical, health, incidental and related expenses, the
need for lifelong medical treatment, monitoring and/or
medications, and the fear of developing any of the above
named health consequences,” makes clear that she is
seeking damages in excess of $75,000. A plaintiff can
defeat removal of a diversity case by irrevocably com-
mitting (before the case is removed) to accepting no
No. 10-3462 5
more than $75,000 in damages, Back Doctors Ltd. v. Metro-
politan Property & Casualty Ins. Co., 2011 WL 1206184, at *3
(7th Cir. Apr. 1, 2011), no matter how great her actual
damages. But needless to say the plaintiff has made
no such commitment, as that would make her suit not
worth the expense of litigating it.
Her second argument is that the defendants, in viola-
tion of 28 U.S.C. § 1446(a), failed to include in their re-
moval papers, within the 30-day deadline for filing a
petition to remove, the summonses that the plaintiff had
served on them in the state court. A “defect in the
removal procedure” normally requires remanding a case
that has been removed under section 1446(a). See 28
U.S.C. § 1447(c); In re Continental Casualty Co., 29 F.3d
292, 293-94 (7th Cir. 1994). But the defendants added
the summonses to their removal papers five days after
the deadline, and there is no suggestion that the
plaintiff, the district judge, the state court, or anyone
or anything else was harmed by the delay. The 30-day
deadline is not jurisdictional, Shaw v. Dow Brands, Inc., 994
F.2d 364, 368-69 (7th Cir. 1993); Northern Illinois Gas Co. v.
Airco Industrial Gases, 676 F.2d 270, 273 (7th Cir. 1982);
Music v. Arrowood Indemnity Co., 632 F.3d 284, 287-88
(6th Cir. 2011)—and even if it were, that wouldn’t make
the plaintiff’s stumble fatal. The deadlines for filing
notices of appeal from a district court to a court of
appeals are jurisdictional; and yet defects in the notice
that are inconsequential in the sense of incapable of
misleading or otherwise harming anyone do not
deprive the appellate court of jurisdiction. Foman v. Davis,
371 U.S. 178, 181-82 (1962); Wells v. Ryker, 591 F.3d 562,
6 No. 10-3462
565 (7th Cir. 2010); Peter F. Gaito Architecture, LLC v.
Simone Development Corp., 602 F.3d 57, 62-63 (2d Cir. 2010);
see also 28 U.S.C. § 1653 (“defective allegations of juris-
diction may be amended, upon terms, in the trial or
appellate courts”). This is true even if the notice of
appeal is “error-ridden.” Klemm v. Astrue, 543 F.3d 1139,
1144 (9th Cir. 2008).
No more does a totally inconsequential defect in
removal papers deprive the district court of jurisdiction
over a case removed to it. Riehl v. National Mutual Ins. Co.,
374 F.2d 739, 742 (7th Cir. 1967); Cook v. Randolph County,
573 F.3d 1143, 1149-50 (11th Cir. 2009); see also 14C Charles
A. Wright et al., Federal Practice and Procedure § 3733,
pp. 635-41 (4th ed. 2009). Remand would be a dispropor-
tionate sanction for a trivial oversight, and when judges
measure out sanctions they strive for proportionality.
Roughneck Concrete Drilling & Sawing Co. v. Plumbers’
Pension Fund, Local 130, 2011 WL 1304900, at *6 (7th Cir.
Apr. 7, 2011); Montaño v. City of Chicago, 535 F.3d 558, 563
(7th Cir. 2008); Smith v. Gold Dust Casino, 526 F.3d 402, 405
(8th Cir. 2008).
The plaintiff’s third, and principal, ground for remand-
ing this case to state court is absence of complete
diversity of citizenship. She makes two alternative argu-
ments. The first is that the judge erred in dismissing
Niemann as a defendant (if Niemann is retained,
diversity is not complete); the second argument is that
if he didn’t err in this respect the case falls into an ex-
ception to an exception to the requirement of com-
plete diversity: the “common defense” exception to the
“fraudulent joinder” exception to that requirement.
No. 10-3462 7
Suppose removing defendants argue that the
nondiverse defendant was joined simply to defeat
removal, as might be inferred from a demonstration
that the claim against that defendant had no possible
merit. This is called “fraudulent joinder” and bars
remand to state court, which is why we describe it as an
exception to the requirement of complete diversity.
Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752, 763 n. 9
(7th Cir. 2009); Schwartz v. State Farm Mutual Automobile
Ins. Co., 174 F.3d 875, 878-79 (7th Cir. 1999); Mayes v.
Rapoport, 198 F.3d 457, 461 (4th Cir. 1999). Like many
legal doctrines, “fraudulent joinder” is misnamed, since,
as the cases we’ve just cited point out, proof of fraud,
though sufficient, is not necessary for retention of
federal jurisdiction—all that’s required is proof that the
claim against the nondiverse defendant is utterly ground-
less, and a groundless claim does not invoke federal
jurisdiction, Hagans v. Lavine, 415 U.S. 528, 536-37 (1974);
McCurdy v. Sheriff of Madison County, 128 F.3d 1144, 1145
(7th Cir. 1997), thus requiring the district judge to
dismiss that defendant before the judge rules on the
plaintiff’s motion to remand.
Taking the first of the plaintiff’s two arguments
for why complete diversity is absent, we consider
whether the judge was right to think that the claim
against Niemann had so little merit that Niemann’s
joinder as a defendant was fraudulent in the sense just
explained. The answer turns on the applicability to
Niemann of the “learned intermediary” doctrine, a com-
mon law doctrine, in force as of 2002 in all but two
states, Ehlis v. Shire Richwood, Inc., 367 F.3d 1013, 1016-17
8 No. 10-3462
(8th Cir. 2004); In re Norplant Contraceptive Products
Liability Litigation, 215 F. Supp. 2d 795, 806-09 (E.D. Tex.
2002)—and Illinois is not one of the two. See Kirk v.
Michael Reese Hospital & Medical Center, 513 N.E.2d 387,
392 (Ill. 1987); Happel v. Wal-Mart Stores, Inc., 766 N.E.2d
1118, 1127 (Ill. 2002). As usually formulated (the signifi-
cance of the qualification “usually” will become clear
shortly), the doctrine excuses the manufacturer of a
prescription drug from having to warn consumers of
the drug’s adverse side effects; it need warn only physi-
cians, so that armed with the warning they can make
a medical decision to prescribe or not to prescribe the
drug for a particular patient. E.g., Ackermann v. Wyeth
Pharmaceuticals, 526 F.3d 203, 207 (5th Cir. 2008); In re
Prempro Products Liability Litigation, 514 F.3d 825, 830
(8th Cir. 2008); Pittman v. Upjohn Co., 890 S.W.2d 425, 429
(Tenn. 1994). The prescribing physician is the “learned
intermediary”—the medical professional who, equipped
with the knowledge imparted to him by the drug’s man-
ufacturer, determines, weighing benefit against risk, the
drug’s suitability for a particular patient.
Niemann is (so far as bears on this case) a pharmacy, and
the plaintiff argues that therefore, since it is not a manu-
facturer, it is not insulated by the doctrine from liability
for failing to warn her of Yazmin’s side effects, as the
district judge thought. But the doctrine’s logic applies
to pharmacies when they sell prescription drugs (like
Yazmin), though applies differently from its application
to manufacturers. Pharmacies (and normally other
sellers in the chain of distribution that runs from the
No. 10-3462 9
manufacturer to the ultimate consumer) can’t be expected
to warn their customers of the possible defects and
dangers of the prescription drugs they sell. It would be
senseless, especially given drug regulation by the Food
and Drug Administration and the extensive tort liability
of drug manufacturers, to make pharmacies liable in tort
for the consequences of failing to investigate the safety
of thousands of drugs. What a pharmacy sometimes
knows, however, without investigation, and the manu-
facturer will not know and even a treating physician
may not know, is susceptibilities of particular customers
of the pharmacy to the side effects of a drug that it sells
them—susceptibilities because of other drugs that the
pharmacy knows the customer is taking, or a pre-existing
physical or mental condition (again known to it) that
makes the drug contraindicated for the customer—and
then it must warn either the customer or his physician.
Happel v. Wal-Mart Stores, Inc., supra, 766 N.E.2d at 1124-25;
DiGiovanni v. Albertson’s, Inc., 940 N.E.2d 73, 77 (Ill. App.
2010); Hand v. Krakowski, 89 A.D.2d 650, 651 (N.Y. App.
Div. 1982). But not otherwise.
Most courts reach this result without using the term
“learned intermediary.” E.g., Murphy v. E.R. Squibb &
Sons, Inc., 710 P.2d 247, 253 (Cal. 1985); Bichler v. Willing,
58 A.D.2d 331, 335 (N.Y. App. Div. 1977); Adkins v. Mong,
425 N.W.2d 151, 152 (Mich. App. 1988); McLeod v. W.S.
Merrell Co., 174 So. 2d 736, 739 (Fla. 1965). Illinois courts
reach the same result but call it an application of the
learned-intermediary doctrine. Happel v. Wal-Mart Stores,
Inc., supra, 766 N.E.2d at 1126; Kasin v. Osco Drug, Inc., 728
N.E.2d 77, 79 (Ill. App. 2000); Leesley v. West, 518 N.E.2d
10 No. 10-3462
758, 762-63 (Ill. App. 1988), The plaintiff seems to think
that Illinois can’t mean it when it says it applies the
doctrine to pharmacies. But the underlying principle is
the same that leads other courts to limit the liability
of pharmacies. The fact that it goes by a different name
in Illinois is of no importance; all that’s important
is that in 48 states including Illinois a manufacturer or
a pharmacy must warn a customer of dangers known
to it of which physicians have not been warned, but not
of dangers of which physicians have been warned.
So if Niemann knew that the plaintiff was abnormally
susceptible to a particular side effect of Yazmin, it
had a duty to warn her or her physician. But she
doesn’t allege that the pharmacy knew anything about
her susceptibility, and so it had the full protection of the
learned-intermediary doctrine. So clear is this that the
district court was right to invoke fraudulent joinder as a
ground for dismissing Niemann from the case, with
prejudice, leaving only diverse defendants.
But this brings us to the plaintiff’s alternative argu-
ment for why complete diversity is absent. The nondiverse
defendants, the Bayer affiliates, are distributors, like the
pharmacy. If the learned-intermediary doctrine applies
with equal force to them, and therefore negates a duty
to warn of dangers of which they were unaware, and
thus creates a defense common to all the defendants, the
case has to be remanded to the state court. For, as we
mentioned earlier, a plaintiff can defeat the fraudulent-
joinder exception to the requirement of complete diversity
of citizenship by proving that his claim against the
nondiverse defendant is no weaker than his claim against
No. 10-3462 11
the diverse defendants. Especially if the claims are identi-
cal, the diverse defendants really are just arguing that the
suit has no merit, period. And that is a ground not for
removal but for asking the court in which the suit was
filed—the state court—to dismiss the suit. Hunter v. Philip
Morris USA, 582 F.3d 1039, 1044-45 (9th Cir. 2009);
Smallwood v. Illinois Central R.R., 385 F.3d 568, 574-76 (5th
Cir. 2004 (en banc)); Boyer v. Snap-On Tool Corp., 913 F.2d
108, 112-13 (3d Cir. 1990).
But applying the common-defense exception to this
case is barred by the plaintiff’s allegation that the Bayer
defendants concealed the existence of Yazmin’s side
effects. Yazmin is Bayer’s drug—manufactured by one
Bayer affiliate, marketed and sold in the United States
by other affiliates, those named as defendants. There is
no suggestion that Niemann concealed Yazmin’s side
effects from its customers; Niemann was no doubt one
of the entities from which the Bayer defendants (if
the charge of concealment against them has any merit)
concealed the side effects. The learned-intermediary
doctrine doesn’t permit distributors to conceal a drug’s
adverse side effects from physicians, pharmacies, and
consumers. Kirk v. Michael Reese Hospital & Medical Center,
supra, 513 N.E.2d at 392-93; Sterling Drug, Inc. v. Cornish,
370 F.2d 82, 85 (8th Cir. 1966); Proctor v. Davis, 682 N.E.2d
1203, 1212-13 (Ill. App. 1997); Larkin v. Pfizer, Inc., 153
S.W.3d 758, 764 (Ky. 2004). The plaintiff’s statement in her
opening brief, advocating application of the common-
defense doctrine, that “the Bayer defendants who are
parties to this case are marketers and distributors, the same
as defendant Niemann Foods” (emphasis added), overlooks
12 No. 10-3462
her own allegation that the Bayer defendants, unlike
Niemann, concealed vital information about Yazmin’s side
effects. The learned-intermediary doctrine that shields
Niemann does not shield them, and thus is not a
defense common both to the diverse defendants and to
the nondiverse one.
We can imagine an argument that the claim against
the diverse defendants should not have been dismissed
with prejudice; for all anyone knows at this stage of the
litigation, it may be valid, and it might seem that the
plaintiff should be allowed to press ahead, albeit in
federal court, since there is no basis for a remand to
state court. But she does not make this argument, and if
she did it would fail. The district court’s denial of
her motion for a remand confronted her with a choice
between, on the one hand, obtaining immediate appel-
late review of her jurisdictional argument by refusing to
litigate in the district court and having her claims dis-
missed with prejudice, and on the other hand pursuing
her claims to final judgment in the district court and
then seeking appellate review, where she could assert
her jurisdictional ground as well as any objections to
the substantive merits of the district court’s decision.
She followed the first approach and by doing so forfeited
her claims against all the defendants in the event her
jurisdictional argument failed.
And had the plaintiff prevailed in this court on the
basis of the common-defense doctrine, and thus suc-
ceeded in getting the case remanded to state court, her
claims against the Bayer defendants in the remanded
No. 10-3462 13
proceeding would still be barred, for she would have
run head-on into the bar of judicial estoppel. She would
have prevailed in this court in getting her case remanded
to state court by persuading us that those defendants
were identically situated to Niemann—which if true
would be a complete defense because her claim against
Niemann is frivolous—only to turn around and argue in
the state court that her claim against the diverse defen-
dants was not subject to the learned-intermediary
doctrine after all and so her claim against them should
survive Niemann’s dismissal.
A litigant is not permitted to advance a ground in one
lawsuit, prevail on that ground, and in a later lawsuit
against the same party seek a judgment based on a repudi-
ation of its earlier position. New Hampshire v. Maine,
532 U.S. 742, 749-51 (2001); FCC v. Airadigm Communica-
tions, Inc., 616 F.3d 642, 661 (7th Cir. 2010); People v. Runge,
917 N.E.2d 940, 976-77 (Ill. 2009). For reasons we
don’t understand, the cases are coy about defining the
doctrine; typical is the statement in New Hampshire v.
Maine that “courts have observed that ‘[t]he circum-
stances under which judicial estoppel may appropriately
be invoked are probably not reducible to any general
formulation of principle.’ Nevertheless, several factors
typically inform the decision whether to apply the
doctrine in a particular case: First, a party’s later position
must be ‘clearly inconsistent’ with its earlier position.
Second, courts regularly inquire whether the party has
succeeded in persuading a court to accept that party’s
earlier position, so that judicial acceptance of an incon-
sistent position in a later proceeding would create ‘the
14 No. 10-3462
perception that either the first or the second court was
misled.’ Absent success in a prior proceeding, a party’s
later inconsistent position introduces no ‘risk of incon-
sistent court determinations,’ and thus poses little threat
to judicial integrity. A third consideration is whether
the party seeking to assert an inconsistent position
would derive an unfair advantage or impose an unfair
detriment on the opposing party if not estopped. In
enumerating these factors, we do not establish inflexible
prerequisites or an exhaustive formula for determining
the applicability of judicial estoppel. Additional consider-
ations may inform the doctrine’s application in specific
factual contexts.” 532 U.S. at 750-51 (citations omitted).
But there is only one possible doubt about the applica-
bility of the doctrine to this case: while judicial estoppel
is usually understood to require that the first litigation
have been a separate lawsuit that ended in a judgment
or settlement, McNamara v. City of Chicago, 138 F.3d 1219,
1225 (7th Cir. 1998), in this case had the plaintiff
prevailed the sequel would have been the transfer of an
existing lawsuit to another court rather than the filing
of a brand-new suit. But that should make no difference
to the applicability of the doctrine. Ladd v. ITT Corp., 148
F.3d 753, 756 (7th Cir. 1998). Though “usually applied
to successive suits, . . . it is not so limited.” Continental
Illinois Corp. v. Commissioner, 998 F.2d 513, 518 (7th Cir.
1993) (citations omitted). Its purpose is to deter fraud
in litigation, see, e.g., Carnegie v. Household Int’l, Inc.,
376 F.3d 656, 660 (7th Cir. 2004), which is a good descrip-
tion of advancing a ground for relief in one stage of a
No. 10-3462 15
lawsuit with the undisclosed intention of arguing
against it in a later stage.
If as we believe judicial estoppel would bar the plain-
tiff’s claim against the Bayer defendants in state court
were we to order the case remanded, a victory for her
in the present phase of the litigation would be Pyrrhic.
A FFIRMED.
5-23-11