Shapiro v. Nuvasive, Inc.

Filing 20

ORDER denying 8 Motion to Remand to State Court; denying as moot 13 Motion to Stay. Signed by Judge Robert N. Scola, Jr on 10/4/2019. See attached document for full details. (lk)

United States District Court
for the
Southern District of Florida
Karen Shapiro, Plaintiff,
v.
NuVasive, Inc., Defendant.

)
)
) Civil Action No. 19-23163-Civ-Scola
)
)

Order Denying Motion for Remand
This matter is before the Court upon Plaintiff Karen Shapiro’s motion for
remand. (ECF No. 8.) Upon review of the parties’ briefs, the record, and the
relevant legal authorities, the Court denies the motion (ECF No. 8).
1. Factual and Procedural Background
Shapiro originally filed her case in the Circuit Court of the Eleventh
Judicial Circuit in and for Miami-Dade County, Florida. (Compl., ECF No. 1-3,
4–11.) Shapiro’s lawsuit arises from a spinal surgery she had in July 2010 in
which the surgeon used the NuVasive SpheRx DBR II Spinal System and inserted
a number of polyaxial screws into her spine. (Id. at ¶ 7.) Years after Shapiro’s
surgery, in 2017, an x-ray exam revealed that certain screws had broken off and
fragments had become “contained within her bone,” so she had to undergo a
second spinal surgery. (Id. at ¶¶ 10, 11.) Shapiro now asserts negligence and
strict liability claims against Defendant NuVasive, Inc. based on its design and
manufacture of the medical hardware of the NuVasive SpheRx DBR II Spinal
System. Shapiro claims that as a result of NuVasive’s actions she
suffered serious bodily injuries and had to undergo a second
surgical procedure to remove the defective hardware, resulting in
pain and suffering, disability, disfigurement, mental anguish, loss
of the capacity for the enjoyment of life, the expenses of
hospitalization medical and nursing care and treatment, loss of
earning capacity, loss of the ability to earn money, and aggravation
of a previously existing condition.
(Id. at ¶¶ 23, 27, 31.) Shapiro alleges that these losses are “either permanent or
continuing in nature” so she “will suffer these losses in the future.” (Id.) Shapiro
states that her suit is for “damages in excess of Fifteen Thousand ($15, 000.00)
Dollars, exclusive of cost, interest, and attorney’s fees.” (Id. at ¶ 1.)
NuVasive first attempted to remove this case in September 2018. See
Shapiro v. NuVasive, Inc., Case No. 1:18-cv-23602-RNS (S.D. Fla. 2018). The
Court granted Shapiro’s motion to remand, however, because NuVasive, at that

time, had failed to carry its burden, by a preponderance of the evidence, of
showing that the amount in controversy more likely than not exceeds the
jurisdictional amount. See Shapiro v. NuVasive, Inc., 18-23602-CIV, 2019 WL
275689, at *3 (S.D. Fla. Jan. 22, 2019).
Since then, however, Shapiro, through counsel, has stated that the “actual
amount of billed [medical] damages are about $80,000.” (Def.’s Not. of Removal,
Exhibit A, Hr’g Tr. 6:4–11, ECF No. 1-2, 7.) NuVasive timely filed its notice of
removal within 30 days after its receipt of this information and asserts the parties
are diverse and the amount-in-controversy has been met. (Def.’s Not. at 3–8.)
Shapiro, in her motion, on the other hand, argues she has “stipulated and
affirmatively conceded that she does not seek and will not seek to recover in
excess of $75,000.00 in damages” and therefore this case should be remanded.
(Pl.’s Mot. at 5.) NuVasive has filed opposition (ECF No. 11) to Shapiro’s motion,
to which Shapiro has replied (ECF No. 14).
2. Legal Standard
A civil action may be removed from state court to federal district court if
the action is within the original jurisdiction of the federal court. 28 U.S.C. §
1441(a). Original jurisdiction exists when a civil action raises a federal question,
or where the action is between citizens of different states and the amount in
controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 1332. In evaluating
Shapiro’s motion for remand, the Court is bound to construe the removal statute
strictly, so “all doubts about jurisdiction should be resolved in favor of remand
to state court.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir.
1999).
When a complaint does not include a specific claim for damages, “removal
from state court is proper if it is facially apparent from the complaint that the
amount in controversy exceeds the jurisdictional requirement. If the
jurisdictional amount is not facially apparent from the complaint, the court
should look to the notice of removal.” Williams v. Best Buy Co., Inc., 269 F.3d
1316, 1319 (11th Cir. 2005). “A conclusory allegation in the notice of removal
that the jurisdictional amount is satisfied, without setting forth the underlying
facts supporting such an assertion, is insufficient to meet the defendant’s
burden.” Id. at 1319–20. Instead, “a defendant seeking removal based on
diversity jurisdiction must prove by a preponderance of the evidence that the
amount in controversy exceeds the $75,000 jurisdictional requirement.” Leonard
v. Enterprise Rent a Car, 279 F.3d 967, 972 (11th Cir. 2002). To meet this
burden, NuVasive need only show that it is “more likely than not” that the
amount in controversy requirements have been met. Lee-Bolton v. Koppers Inc.,
848 F. Supp. 2d 1342, 1346 (N.D. Fla. 2011). In evaluating whether the

defendant has met this burden, the Court may consider information relating to
the amount in controversy in the record of the state-court proceeding or in
response to discovery. See Lambertson v. Go Fit, LLC, 918 F. Supp. 2d 1283,
1285 (S.D. Fla. 2013) (Moore, J.) (“The definition of “other paper” is broad and
may include any formal or informal communication received by a defendant.”).
3. Analysis
Shapiro’s unspecified demand for damages, in her complaint, requires
NuVasive to “prove by a preponderance of the evidence that the amount in
controversy more likely than not exceeds the jurisdictional amount.” Roe v.
Michelin N. Am., Inc., 613 F.3d 1058, 1061 (11th Cir. 2010) (internal quotation
marks and alterations omitted). Shapiro does not deny that she revealed her
“medical bills total approximately $80,000.” (Pl.’s Mot. 7.) Instead, she argues
record evidence and “papers” to the contrary outweigh this unchallenged
evidence. (Id. at 7–8.) In support, Shapiro points to (1) her responses to
NuVasive’s requests for admission; (2) her proposals for settlement; and (3) her
complaint. The Court is not persuaded.
Shapiro directs the Court’s attention to her responses to NuVasive’s
requests for admissions “wherein Plaintiff clearly stipulated and affirmatively
conceded that she does not seek and will not seek to recover in excess of
$75,000.00 in damages.” (Pl.’s Mot. at 5.) According to Shapiro, these “affirmative
responses and concessions” are “dispositive as to the amount in controversy at
the time of removal.” (Id. at 6.) In support of her position, she points to the
reasoning set forth in Hernandez v. Globe Life & Accident Ins. Co., 6:09-CV-1118LSC, 2009 WL 10703680, at *2 (N.D. Ala. Nov. 4, 2009). Her reliance on this
case, however, is misplaced. While indeed the plaintiff in that case had made
similar admissions, those admissions were not the basis for the court’s decision
to remand. Instead, the court remanded because the defendant there had not
come forward with any evidence, other than those admissions, to support
removal. Here, in contrast, the Defendant does not even rely on Shapiro’s
admissions to support removal and instead comes to this Court armed with
$80,000 in medical bills that the Plaintiff herself has acknowledged.
Additionally, while Shapiro indeed admitted she does not currently seek
and will not seek to recover more than $75,000 in this lawsuit, she
simultaneously was unable to admit or deny that (1) she would not pursue or
accept an award of damages over $75,000; or (2) she would not later ask the jury
for an award over $75,000. (Pl.’s Resp., Ex. B, Rev’d Disc. Resp. ¶¶ 3, 5; ECF No.
8-2, 2–3.) These averments are thus, in any event, far too ambiguous and evasive
to outweigh the unchallenged evidence submitted regarding Shapiro’s medical’s
bills.

Similarly, Shapiro’s attempt to avoid removal based on her presentation of
two proposals for settlement to NuVasive, both for under $75,000, is unavailing.
Although in the Eleventh Circuit a settlement offer may “count for something,”
it is by no means determinative of the amount in controversy. Burns v. Windsor
Ins. Co., 31 F.3d 1092, 1097 (11th Cir. 1994). And Shapiro’s argument, without
any support whatsoever, that her “proposals along with [her] affirmative
admissions[] should be enough to establish the amount in controversy,” falls
short of the mark. Shapiro does not point to any objective calculations within
the offers that would allow the Court to infer that they are in any way a
reasonable assessment of the value of her claims as opposed to mere posturing
or stratagem. Golden v. Dodge-Markham Co., Inc., 1 F. Supp. 2d 1360, 1364 (M.D.
Fla. 1998) (“Defendant has not persuaded this Court that Plaintiff's settlement
demand was an honest assessment of damages.”).
Lastly, Shapiro argues the allegations in her complaint cannot be used to
bolster NuVasive’s amount-in-controversy allegations. Because the Court finds
NuVasive’s presentation regarding Shapiro’s admitted $80,000 in medical bills
sufficient to establish jurisdiction, it is unnecessary to address this final issue.
4. Conclusion
For the reasons stated above, the Court denies Shapiro’s motion for
remand (ECF No. 8). As a result, the Court also denies Shapiro’s motion for a
stay (ECF No. 13) as moot.
Done and ordered, at Miami, Florida, on October 4, 2019.

________________________________
Robert N. Scola, Jr.
United States District Judge