Health Law Daily Wrap Up, PRODUCTS LIABILITY (DRUGS)—E.D. Pa.: Court rejects drug maker’s fraudulent joinder arguments, remands removed case, (May 12, 2026)

By Susan L. Smith, JD, MA

The court found that a woman had colorable claims against a nondiverse distributor of an antipsychotic drug.

A federal district court in Pennsylvania remanded a woman’s complaint to the Court of Common Pleas of Philadelphia County, Pennsylvania, after concluding that the removal of the complaint was improper. The woman brought a personal injury case as a representative of the estate of a woman who died (Decedent) after she allegedly took the antipsychotic drug Zyprexa, which allegedly caused her to develop breast cancer. The woman brought claims for strict liability and negligence against two drug makers and a distributor. One of the drug maker defendants, Eli Lilly and Co., removed the complaint to the district court on the basis of diversity jurisdiction. The woman challenged the removal on the basis that the distributor, Cencora, Inc., was a Pennsylvania citizen. The court concluded that whether certain causes of action raised in the woman’s complaint may be pursued against Cencora, or whether certain affirmative defenses were applicable, were merit questions that should be addressed by the presiding judge of the Court of Common Pleas. Thus, the district court remanded the case and denied Cencora and Eli Lilly’s respective motions to dismiss (Mayo v. Eli Lilly and Co., No. 26-1781 (E.D. Pa. Apr. 30, 2026)).

Forum defendant and fraudulently joined rules. A defendant may not remove a case if any of the defendants are citizens of the state in which the action is brought. Because Cencora was a citizen of Pennsylvania and was sued in Pennsylvania, the state in which the action was brought, Eli Lilly faced the forum defendant rule barrier to removal of the action. To overcome the barrier, Eli Lilly argued that Cencora was fraudulently joined and was only brought into the action to fight removal to federal court. The court explained that a defendant is fraudulently joined when there is either (1) no reasonable basis in fact or colorable ground supporting the claims against that defendant or (2) no real intention in good faith to prosecute the action. When the in-state defendant has been fraudulently joined to the action, the court may overlook the citizenship of that defendant for the purposes of assuming diversity jurisdiction over the action.

Arguments. Eli Lilly stated that there was a conflict of laws between Pennsylvania, Indiana, and Alabama. Eli Lilly contended that under Alabama state law, which shields drug distributors from liability, the woman lacked colorable claims against Cencora. Eli Lilly also contended that under Pennsylvania’s choice-of-law analysis, Alabama state law must be applied. The woman asserted that the court need not plod through a lengthy choice-of-law analysis when determining jurisdiction over the case.

Court’s analysis. Upon review, the district court found that the woman asserted colorable claims against Cencora for its role as distributor of Zyprexa. She alleged that the Decedent purchased Zyprexa from Walgreens pharmacies and that Cencora has long distributed drugs to Walgreens. She also alleged that starting in 2013, Cencora became responsible for distributing substantially all of Walgreens’s branded and generic pharmaceutical products. Furthermore, on the basis of the publicly available facts concerning Cencora’s business partnership with Walgreens, at least some portion of the Zyprexa the Decedent consumed was distributed by Cencora. In addition, the woman alleged that Cencora had a duty to consumers to not only not distribute dangerous, carcinogenic drugs but to warn consumers of the risks of taking the drugs it distributes. The woman contended that if the Decedent had been made aware of these obvious carcinogenic pathways, she would not have taken the Zyprexa. Thus, the district court granted the woman’s request to remand the case.

The case is No. 26-1781.

Judge: Kenney, C.

Attorneys: R. Brent Wisner (Wisner Baum LLP) for Dianne Mayo. Caroline Power (Kirkland & Ellis LLP) for Eli Lilly and Co. Terry Matthew Henry (Blank Rome LLP) for Cencora, Inc. f/k/a Amerisouce-Bergen Corp.

Companies: Eli Lilly and Co.; Cencora, Inc. f/k/a Amerisouce-Bergen Corp.

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