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Click here for the full text of this decision FACTS:Mabel and Daryl McDonal sued various manufacturers and distributors of Thimerosal, claiming that the couple’s young daughter suffered from profound mercury poisoning. The McDonals argued that it was their daughter’s exposure to mercury through the defendants’ vaccines that caused the poisoning. The McDonals filed their suit, which alleged causes of action for strict liability, negligence, breach of warranty and medical malpractice, in Mississippi state court. Some of the defendants were out-of-state defendants. One of the out-of-state defendants, Eli Lilly and Co., removed the case to federal district court on both diversity and federal question jurisdiction. Federal question jurisdiction was based on the National Childhood Vaccine Act, Eli Lilly said, which bars individuals from bringing vaccine-related actions against health-care defendants until they have first filed filing a petition for relief in the U.S. Court of Federal Claims. The McDonals attempted to remand the case, saying their suit was not governed by the vaccine act, and saying that the defendants did not unanimously consent to removal. Eli Lilly responded with a motion reflecting the consent of two additional defendants. The district court granted Eli Lilly’s request to add the consent of the two defendants. It also granted the McDonals’ motion to remand, ruling that neither diversity nor federal question jurisdiction existed. Later, based on new legal developments, the defendants moved for reconsideration. The district court granted the motion to reconsider and held that the McDonals’ claims were implicitly vaccine-related and fell within the purview of the act. As for diversity jurisdiction, the district court also determined that the in-state health-care defendants had been improperly joined by Eli Lilly and diversity jurisdiction existed. On its own accord, the district court then dismissed the case against all defendants on the vaccine act ground, ruling that all of the McDonals’ claims � against both the diverse and non-diverse defendants � must first be exhausted in federal claims court. The McDonals appeal. HOLDING:Affirmed in part; reversed and remanded in part. As a threshold matter, the court says it must determine whether the district court had jurisdiction to consider the case. If such power was lacking, then the case must be remanded back to the state court from which it came. The court acknowledges that the district court’s decision on joinder was made without the benefit of recent case developments. The lesson of these cases is simply that there is no improper joinder when the out-of-state defendant’s “showing that compels a holding that there is no reasonable basis for predicting that state law would allow the plaintiff to recover against the in-state defendant necessarily compels the same result for the nonresident defendant.” Such an allegation of improper joinder is more properly an attack on the merits of the claim, rather than an inquiry into the propriety of the joinder of the local party. Hence, a remand to state court is necessary when the district court, when supposedly deciding whether the joinder was improper, departs from the threshold inquiry of jurisdiction into a decision on the merits. While the focus of the improper joinder inquiry examines whether the joinder itself was improper, the purpose of the inquiry must be whether or not there is a possibility of recovery against the local defendant. The court continues by deciding that the district court’s dismissal on the grounds of the vaccine act was based on the fact that the McDonals had failed to adhere to the act’s statutory directives requiring claimants alleging injury by certain vaccines to first bring their case in federal claims court. The district court concluded that the McDonals’ claims against all of the defendants would fail and required dismissal, “as neither a state nor a federal court would have jurisdiction to initially consider the merits of this case prior to its first being brought to the Court of Federal Claims.” The court points out that just recently, it has held that a manufacturer of Thimerosal used in a vaccine should be considered a “vaccine manufacturer” as that term is used in the vaccine act. That case is important now because it means the out-of-state Thimerosal defendants in this case would not be insulated from liability by the jurisdictional limitations within the vaccine act, and a civil action could be brought against them in either state or federal court. At the same time, the vaccine-related claims against the in-state health-care defendants and the rest of the out-of-state defendants must be brought in federal claims court first. OPINION:Stewart, J.; Higginbotham, Stewart and Prado, JJ.

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