A West Virginia couple was denied their motion for remand to state court by a federal judge in Philadelphia who is handling the multidistrict litigation for DuPont’s herbicide called Imprelis because the pair had fraudulently joined a defendant in order to defeat diversity jurisdiction.

U.S. District Judge Gene E.K. Pratter of the Eastern District of Pennsylvania rejected the Bordases’ claim that their inclusion of Brett Conner, their “lawn care professional” who had recommended they hire a company to apply Imprelis to their property, among the defendants in the action would prevent diversity jurisdiction. Instead, Pratter held that Conner was fraudulently joined and the case is rightly in her court.

“In the absence of any colorable claim against Mr. Conner, his nominal presence in the case cannot defeat removal,” Pratter said in In re Imprelis Herbicide Marketing, Sales Practices and Products Liability Litigation.

In October 2011, the Judicial Panel on Multidistrict Litigation consolidated over 40 cases brought in 18 districts against DuPont after Imprelis allegedly killed certain kinds of trees. The panel put the case in the Eastern District of Pennsylvania because the U.S. Environmental Protection Agency office investigating the matter is in Philadelphia, DuPont is headquartered in nearby Wilmington, Del., and some of the plaintiffs had asked for that venue, among other things, according to the panel’s transfer order.

Linda and James Bordas had initially filed their suit in West Virginia’s Ohio County Circuit Court against DuPont, which manufactured the chemical; St. Clair Lawn Care, which applied it; and Conner, who recommended that the couple hire St. Clair to apply herbicide to their wooded property, according to Pratter’s opinion.

DuPont and St. Clair removed the case to the U.S. District Court for the Northern District of West Virginia, arguing that Conner had been fraudulently joined in order to block diversity jurisdiction and the suit was then moved to the Eastern District of Pennsylvania when the Imprelis cases were consolidated.

Pratter agreed with DuPont that the Bordases failed to sufficiently demonstrate Conner’s negligence, which, the couple had argued, was apparent because he knew, through his “special relationship” with them that they didn’t have lawn care expertise and that they depended on him to ensure that the herbicides used on their property would be safe.

“West Virginia law ‘allows a negligence claim for purely economic losses when the[re] is evidence of a “special relationship” between the plaintiff and the defendant,’” Pratter said, quoting the Supreme Court of Appeals of West Virginia in its 2010 opinion in White v. AAMG Construction Lending.

The Bordases claim that they had such a “special relationship” with Conner, meaning that the case was improperly removed to federal court.

“As an initial matter, plaintiffs did not suffer ‘purely economic losses’ in this case; they suffered property damage. Thus, the ‘special relationship’ doctrine does not squarely apply to the Bordases’ situation,” Pratter said.

Beyond that, the relationship between Conner and the Bordases is thin compared to the relationships that have qualified for the rule. Pratter noted one case from the Supreme Court of Appeals of West Virginia that involved the relationship between a lender and a borrower.

“None of the cases in which West Virginia courts have ascribed tort liability based on a special relationship involves a set of facts in which the tortfeasor was as unconnected to the actual cause of the injury as Mr. Conner was to St. Clair (assuming, for the sake of this memorandum only, that St. Clair was at least in part responsible for plaintiffs’ injuries),” Pratter said.

She noted that the couple’s argument would be closer to passing muster for a “negligent referral” claim, but no West Virginia court has sanctioned that type of claim. Neither have Pennsylvania courts, Pratter said in a footnote.

Courts in some states have allowed negligent referral claims in some cases, such as medical malpractice suits, Pratter said. In those cases, though, the referring doctor has done more than just recommend another doctor who went on to act negligently, she said.

“The Bordases have not alleged anything approaching this level of involvement by Mr. Conner in the lawn treatment carried out by St. Clair,” Pratter said.

Conner was fraudulently joined, Pratter held, and she dismissed the claim against him.

Saranac Hale Spencer can be contacted at 215-557-2449 or sspencer@alm.com. Follow her on Twitter @SSpencerTLI.

(Copies of the eight-page opinion in In re Imprelis Herbicide Marketing, Sales Practices and Products Liability Litigation, PICS No. 13-0304, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •