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Smith v. Hendricks

United States District Court, D. Columbia

October 22, 2015

VICKY SMITH, Plaintiff
v.
FREDERICK B. HENDRICKS, M.D., et al., Defendants

         For VICKY R. SMITH, Plaintiff: Bwo Marian Chou, LEAD ATTORNEY, LAW OFFICE OF B. MARIAN CHOU, ESQ., Washington, DC; Donna Michelle Beasley, LEAD ATTORNEY, Washington, DC.

         For FREDERICK B. HENDRICKS, MEDICAL FACULTY ASSOCIATES, INC., Defendants: Robert Wade Goodson, LEAD ATTORNEY, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, Washington, DC; Callyson Taylor Grove, WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP, Washington, DC.

         For BOSTON SCIENTIFIC CORPORATION, Defendant: John Chadwick Coots, SHOOK, HARDY & BACON, L.L.P., Washington, DC.

         MEMORANDUM OPINION

         COLLEEN KOLLAR-KOTELLY, United States District Judge.

         Plaintiff Vicky Smith brought this action in the District of Columbia Superior Court against Defendants Dr. Frederick Hendricks, Medical Faculty Associates, Inc.,[1] and Boston Scientific in relation to injuries that she allegedly suffered after she was implanted with the " Advantage Transvaginal Mid-Urethral sling system." Compl. ¶ 27. Defendant Boston Scientific subsequently removed the case to this Court. Plaintiff brings medical malpractice claims against MFA and against Dr. Hendricks (collectively, the " Healthcare Provider Defendants" ) and product liability claims against Boston Scientific. Presently before this Court are the Healthcare Provider Defendants' [8] Motion to Dismiss; the Healthcare Provider Defendants' [11] Motion to Sever Claims Against Them and Remand Said Claims to D.C. Superior Court; Plaintiff's [16] Motion to Remand the Case Back to the Superior Court of the District of Columbia; and Boston Scientific's [12] Motion to Stay All Proceedings Pending Transfer to MDL No. 2326. In essence, Plaintiff seeks to have the entire case remanded to the Superior Court; by contrast, all of the defendants argue that the claims against the Healthcare Provider Defendants should be severed and remanded to the Superior Court (insofar as this Court does not dismiss them) while the claims against Boston Scientific remain in federal district court. Meanwhile, Boston Scientific has requested that the Panel on Multi-District Litigation transfer this case to the Southern District of West Virginia as part of the multi-district litigation pending there, under the caption In re Boston Scientific Corp. Pelvic Repair System Products Liability Litigation (MDL No. 2326), and has moved to stay the proceedings in this Court pending transfer to the Southern District of West Virginia.

         The key threshold question is whether the Court has jurisdiction over this action in the first instance. In particular, the question is whether the citizenship of the Healthcare Provider Defendants can be disregarded for the diversity analysis in light of Defendants' arguments that they were either fraudulently or improperly joined. The Court's resolution of the other issues in the pending motions follows from its analysis of the jurisdictional question. The Court concludes that, although none of the Defendants were fraudulently joined, the claims against the Healthcare Provider Defendants were not properly joined to the claims against Boston Scientific. The Court concludes that it is proper to sever the claims against the Healthcare Provider Defendants and sever those Defendants, pursuant to Rule 21, preserving jurisdiction over the claims against Boston Scientific. Because the Court does not have jurisdiction over the claims against the Healthcare Provider Defendants, the Court holds in abeyance those defendants' motion to dismiss and remands that motion and the associated claims to the Superior Court. Therefore, upon consideration of the pleadings,[2] the relevant legal authorities, and the record for purposes of this motion, the Court HOLDS IN ABEYANCE and REMANDS the Healthcare Provider Defendants' [8] Motion to Dismiss for the District of Columbia Superior Court to decide that motion; GRANTS the Health Care Provider Defendants' [11] Motion to Sever Claims Against Them and Remand Said Claims to D.C. Superior Court; and DENIES Plaintiff's [16] Motion to Remand the Case Back to the Superior Court of the District of Columbia. The Court SEVERS the claims against the Healthcare Provider Defendants, SEVERS those defendants as parties, and REMANDS those claims back to the Superior Court. Having done so, the Court GRANTS Boston Scientific's [12] Motion to Stay All Proceedings Pending Transfer to MDL No. 2326 and STAYS this action until further order of the Court.

         I. BACKGROUND

         For the purposes of the motions before the Court, the Court accepts as true the well-pleaded allegations in Plaintiff's Complaint. The Court does " not accept as true, however, the plaintiff's legal conclusions or inferences that are unsupported by the facts alleged." Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315, 411 U.S.App.D.C. 105 (D.C. Cir. 2014). The Court limits its presentation of the background to the facts relevant to the issues discussed below.

         Boston Scientific produces, designs, researches, distributes, sells, and promotes the Advantage Transvaginal Mid-Urethral Sling System (" Advantage" ), which consists of implanted surgical mesh devices, as a treatment for pelvic organ prolapse and stress urinary incontinence. Compl. ¶ 14. On October 20, 2008, the U.S. Food and Drug Administration (" FDA" ) issued a Public Health Notification to health care practitioners regarding adverse events relating to mesh products that had been reported to the FDA. Id. ¶ 61. On July 13, 2011, the FDA updated its Public Health Notification regarding " serious complications associated with surgical mesh for transvaginal mesh." Id. ¶ 62. Although the FDA did not address specific manufacturers or brand names in its Public Health Notification, the FDA Manufacturers and User Facility Device Experience database includes hundreds of injury reports arising from Advantage implants. Id. ¶ 64. Boston Scientific continued to promote Advantage and continues to claim that its reformed model Advantage Fit System provides safe and effective alternatives to other treatments. Id. ¶ 71. Boston Advantage has not included warnings or adverse event disclosures on its web page or brochures for the Advantage Fit System. Id. ¶ 72. Plaintiff further alleges that Boston Scientific knew or should have known that Advantage was defective, id. ¶ 65, and that Boston Scientific failed to disclose complications and adverse events arising from the use of Advantage, id. ¶ 70.

         Meanwhile, on April 9, 2012, Plaintiff was referred to Medical Faculty Associates with complaints of recurrent urinary tract infections and stress urinary incontinence. Id. ¶ 18. After several initial tests and consultation with Dr. Hendricks, id. ¶ ¶ 19-21, Dr. Hendricks performed surgery on Plaintiff on June 21, 2012, including a cystoscopy and implanting the Advantage sling system, id. ¶ 27. While Dr. Hendricks recorded in Plaintiff's medical records that he had a thorough discussion with Plaintiff prior to the operation, Plaintiff alleges that she did not receive an explanation and that they did not have any discussion. Id. ¶ ¶ 22-23. Plaintiff maintains that she did not receive any literature other than a " simple consent form," and that she never received any information regarding complications with the use of the mesh device. Id. ¶ ¶ 23, 25. Plaintiff began experiencing full scale abdominal pain on June 23, 2012, id. ¶ 28, and additional complications and adverse events followed, including continuous post-menopausal bleeding and sever lower back pain, id. ¶ 33. After receiving subsequent treatment and surgery at Providence Hospital in 2013, id. ¶ ¶ 33-39, Plaintiff was seen again by Dr. Hendricks during April and May 2014, id. ¶ ¶ 40-44. Subsequently, Plaintiff continued to suffer adverse health effects and was treated by other medical practitioners, including surgery that was conducted by those practitioners. See id. ¶ ¶ 45-55.

         Plaintiff filed the Complaint in the District of Columbia Superior Court on June 22, 2015--which Boston Scientific subsequently removed to this Court--bringing claims in connection with medical complications that allegedly resulted from medical procedures that Defendant Dr. Frederick Hendricks performed on Plaintiff, including implanting the Boston Scientific Advantage Transvaginal Mid-Urethral sling system. Plaintiff brings claims for medical negligence (count I) and lack of informed consent (count II) against Dr. Hendricks and against Medical Faculty Associates, the medical practice of which Dr. Hendricks is an employee or agent. Id. ¶ ¶ 76-77. Plaintiff brings claims against Boston Scientific for negligent manufacture of a defective product (count III), breach of duty to warn (count IV), negligent product design (count V), breach of implied warranty of merchantability (count VI), breach of implied warranty of fitness for a particular purpose (count VII), breach of express warranty (count VIII), fraudulent misrepresentation (count IX), and fraud by concealment (count XI). In addition, Plaintiff also brings a claims for violation of the D.C. consumer protection statutes against both Dr. Hendricks and Boston Scientific (count X). In addition to the damages that Plaintiff seeks with respect to the individual claims, Plaintiff seeks punitive damages from all defendants (count XII). Defendant Boston Scientific filed the [1] Notice of Removal on July 29, 2015, and the motions that are now pending before the Court were subsequently filed and briefed.

         II. LEGAL STANDARD

         " Federal courts are courts of limited jurisdiction" and can adjudicate only those cases entrusted to them by the Constitution or an Act of Congress. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). A defendant has the right to remove to federal court an action brought in state court where the federal court has original subject matter jurisdiction, including when it has jurisdiction on the basis of diversity of citizenship. 28 U.S.C. § 1441(a). Diversity jurisdiction exists when the action involves citizens of different states, and the amount in controversy exceeds $75,000.00 per plaintiff, exclusive of interest and costs. 28 U.S.C. § 1332(a). " When a plaintiff sues more than one defendant in a diversity action, the plaintiff must meet the requirements of the diversity statute for each defendant or face dismissal." Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) (citing Strawbridge v. Curtiss, 7 U.S. 267, 3 Cranch 267, 267, 2 L.Ed. 435 (1806)); see also In re Lorazepam & Clorazepate Antitrust Litig., 631 F.3d 537, 542, 394 U.S.App.D.C. 108 (D.C. Cir. 2011) (describing origin of complete diversity requirement). Courts must strictly construe removal statutes, resolving any ambiguities regarding the existence of removal jurisdiction in favor of remand. See Williams v. Howard Univ., 984 F.Supp. 27, 29 (D.D.C. 1997) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 107-09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941)).

         III. DISCUSSION

         The Court first considers whether there is diversity jurisdiction over this action under 28 U.S.C. § 1332(a). The Court next considers whether Defendant Boston Scientific, who removed the action to this Court under the general removal statute, 28 U.S.C. § 1441(a), properly complied with the requirements of the removal statute, specifically with respect to the forum defendant rule and with respect to the requirement that properly joined defendants join in or consent to the removal. See 28 U.S.C. § 1441(b)(2) (forum defendant rule); id. § 1446(b)(2)(A) (consent requirement). The Court lastly considers the Healthcare Provider Defendants motion to dismiss and Boston Scientific's request to stay this action.

         A. Diversity Jurisdiction

         Plaintiff argues that this Court does not have subject matter jurisdiction over this action because there is not complete diversity among the parties. Defendant Boston Scientific argues that there is subject matter jurisdiction because the citizenship of the Healthcare Provider Defendants should be disregarded because those parties were misjoined (that is, improperly joined). The Healthcare Provider Defendants argue that there is no subject matter jurisdiction over the claims against them and that the claims against them should be severed and remanded to the D.C. Superior Court because they were improperly joined to the claims against Boston Scientific. All of the defendants argue that, even if the Court determines that joinder is proper, the Court should exercise its discretion under Rule 21 to sever the claims against the Healthcare Provider Defendants, remand those claims to the D.C. Superior Court, and exercise jurisdiction over the claims against Boston Scientific.

         " 'The usual rule is that removability is determined from the record before the court at the time the notice of removal ... is filed in federal court.'" Henok v. JPMorgan Chase Bank, N.A., No. CV 12-0292 (PLF), 106 F.Supp.3d 1, 2015 WL 2121788, at *3 (D.D.C. May 6, 2015) (quoting 14B Charles Alan Wright et al., Fed. Prac. & Proc. Juris. § 3723, at 690 (4th ed. 2009)). " In addition, '[a] large minority of courts require complete diversity not only when removal is sought, but also when the original action is filed in the state court.'" Id. (quoting 13E Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Fed. Prac. & Proc. Juris. § 3608, at 357-58 (3d ed. 2009)). The question in this case is whether an exception to that usual rule is applicable. Before addressing the parties' legal arguments, the Court notes that there are no factual disputes underlying the question of diversity jurisdiction.[3] There is no question that, if all of the defendants are considered for the diversity analysis--whether based on their citizenship at time the complaint was filed in D.C. Superior Court, the time of the notice of removal, or at present--the parties are not diverse: MFA and Dr. Hendricks are citizens of Washington, D.C., as is Plaintiff. Compl. ¶ ¶ 3-6. Boston Scientific is the only party alleged not to be a citizen of Washington, D.C.; it is a Delaware corporation with is principal place of business in Massachusetts and is, therefore, a citizen of those two states. Notice of Removal ¶ 6. Similarly, it is clear that, if the citizenship of the Healthcare Provider Defendants is disregarded--as Defendants advocate--there would be diversity: Plaintiff is a citizen of Washington, D.C., and Boston Scientific is not. Therefore, the key jurisdictional question is whether the citizenship of MFA and Hendricks should be disregarded for the purposes of determining the diversity of the parties.

         Altogether, Defendants suggest three possible bases for disregarding the citizenship of the Healthcare Provider Defendants in determining whether there is complete diversity among the parties: that the Healthcare Provider Defendants were fraudulently joined to this action; that the claims against those defendants were misjoined (or improperly joined) to the claims against Boston Scientific and must be severed pursuant to Rule 21; and that, in the alternative, the Court should exercise its discretion to sever the claims against the Healthcare Provider Defendants in order to exercise diversity jurisdiction over the claims against Boston Scientific. The Court notes at the outset that, despite some lack of precision in the language the parties use to discuss misjoinder and fraudulent joinder, the Court concludes that fraudulent joinder and misjoinder are distinct bases for disregarding the citizenship of a nondiverse defendant, with a separate analysis required for each of those bases. SeeKips Bay Endoscopy Ctr., PLLC v. Travelers Indem. ...


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