Friday, November 7, 2025
Page 3
Ninth Circuit:
Plaintiff’s Conjecture Justifies Reinstatement of Action
Majority Approves Inference That Woman Who Made Emailed Sales Approach for Medical Product in January 2022 Is Same Person Who, in-Person, Supplied Sample to Doctor’s Office in December 2021, Causing Harm to User
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals, in a 2-1 decision, has reinstated a products liability/negligence lawsuit against a woman the plaintiff speculates was the sales representative who brought a sample of a prescription eye product, “Vuity,” to a medical office where he works and, after he applied drops to himself, allegedly suffered physical harm.
Supposition, Circuit Judge Johnnie B. Rawlinson said in a dissent on Wednesday, is not a sufficient basis upon which to reverse an order by District Court Judge R. Gary Klausner of the Central District of California dismissing the action against Lilan Hom. Klausner found that she had been fraudulently joined by plaintiff Perry Prioette.
(The plaintiff/appellant’s surname was set forth in his own papers and by the District Court as “Prioette” but he was referred to by the Ninth Circuit in the caption of the opinion and in the text as “Proiette.”)
A memorandum opinion reverses the dismissal and remands the case to the Los Angeles Superior Court. Circuit Judges Anthony S. Johnstone and Eric D. Miller were in agreement on that point,
The opinion also affirms a $10,000 sanction imposed on Prioette for violating a standing order. Rawlinson and Johnson subscribed to that disposition, with Miller dissenting.
Prioette’s action was removed by defendants AbbVie Inc. and its subsidiary Allergan, Inc., makers of Vuity, based on diversity of citizenship—a ground that would have been defeated had Hom, a local resident, remained in the action. Klausner ordered briefing on the contention that Hom was improperly included as a defendant.
Plaintiff’s Recitation
In a declaration dated Jan 23, 2024, Prioette said:
“I work as an optician in the office of Dr. Gary Regier. an optometrist and my stepfather. In December of 2021 a female drug representative visited the office to promote Vuity eye drops. During that meeting at her offer I tried a sample of the eye drops provided by the sales representative and sustained the injuries which form the basis of this suit.”
Prioette did not identify Hom as the “female drug representative” with whom he met on or about Dec. 11, 2021, but produced an email from her to Regier dated Jan. 11, 2022, identifying herself as a “Specialty Representative” for “ALLERGAN Eye Care,” inviting the eye doctor to a Vuity promotional event at Morton’s Steakhouse.
The declarant said:
“Based on my experience working in a medical office, normally drug companies assign a sales representative to promote products to our office. Because Lilan Hom was a sales representative contacting our office about Vuity at that period of time, I inferred that Lilan Hom was the drug representative who visited our office and supplied the sample of Vuity.”
Hom’s Declaration
In his submission, the plaintiff argued:
“Admittedly, Plaintiff s evidence at this very early, pre-discovery stage of the case is circumstantial. But circumstantial evidence is still evidence, and the fraudulent joinder inquiry is not a summary judgment inquiry. As with any other testimony, a jury would be entitled to disbelieve an affidavit submitted by Defendant Horn in favor of conflicting circumstantial evidence, and at this procedural stage this Court is required to assume they would do so.”
Hom, in her declaration, denied having met with Prioette. She also disclaimed ever having visited Regier’s office, and maintained that she made no sales calls until Jan. 3, 2022, and that the first time she supplied a sample to anyone was on April 6, 2022.
Majority’s View
The majority observed that Hom’s sworn declaration does not constitute proof of the truth of the allegations contained in it and declared:
“[B]y Horn’s own declaration, she became responsible for promoting Vuity in December 2021, and sent a familiar email to Proiette’s office only a month after the alleged incident.
“Because the evidence in the record suggests that there is a possibility that the state court would credit Prioette’s allegations and evidence that Horn was the sales representative that gave him the Vuity sample, the district court erred in denying the motion to remand….Therefore, we reverse with instructions to remand the case to state court.”
The action against the corporate defendants had been dismissed with prejudice by Klausner based on a failure to state a claim.
Rawlinson’s Dissent
Rawlinson said in her dissent that she is “not persuaded” that Prioette “plausibly alleged sufficient facts that one could confidently predict” that the Los Angeles Superior Court could conclude that a cause of action has been stated. The proposition that a colorable claim has been presented “strains credulity,” she wrote, given that the plaintiff “was completely unable to identify” Hom “as the sales representative who provided the sample eye drops to him.”
The dissenter added:
“He did not allege her age, height, body build, ethnicity, hair color, eye color or any other personally identifying information. Rather, he selected Hom as the defendant based solely on an e-mail she sent to the doctor’s office where Proiette worked, after the date he stated she provided him the sample….If this scant information is sufficient to ‘allege a colorable claim,’ there will never be another finding of fraudulent joinder in this Circuit.”
The case is Proiette v. Abbvie Inc., 24-3736.
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