Schulke v. Stryker Orthopaedics et al

Filing 30

MEMORANDUM Opinion and Order signed by the Honorable Thomas M. Durkin on 5/31/2016. Mailed notice (jh, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOSEPH SCHULKE,
PLAINTIFF,
v.
STRYKER ORTHOPAEDICS, DR. DAVID,
HOFFMAN, M.D., AND CHICAGO
ORTHOPAEDICS AND SPORTS MEDICINE, S.C.
DEFENDANTS.

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No. 16 C 2563
Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER
Schulke, an Illinois resident, brought this action in the Circuit Court of Cook
County seeking damages for injuries, pain, and suffering he sustained in connection
with a hip replacement surgery and two revision surgeries. Specifically, Schulke
alleges that device defects and negligent medical care caused him discomfort,
disability, and illness, ultimately necessitating a corrective surgery to address the
“significant symptoms,” which included blood toxicity, vision and hearing loss, and
compromised ambulation, among other injuries. Schulke named as defendants in
the matter his surgeon, Dr. Hoffman, and Dr. Hoffman’s medical practice, Chicago
Orthopedics and Sports Medicine (“the medical defendants”)—both Illinois
residents—and

Howmedica

Osteonics

Corporation, 1

the

New

Jersey-based

manufacturer of the hip implant components used in the various surgeries.

Defendant Howmedica Osteonics Corporation informs the Court in its Notice
of Removal that it was improperly named in this matter as Stryker Orthopaedics.

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Howmedica removed the case to this Court under 28 U.S.C. § 1332 and
§ 1441 on the basis that Howmedica is diverse from Schulke and damages in the
matter exceed $75,000. R. 1. Simultaneously, Howmedica moved for severance and
remand of Schulke’s claims against the non-diverse medical defendants, the joinder
of whom all parties agree divests this Court of subject matter jurisdiction. R. 2.
Schulke opposed the motion to sever, R. 18, and moved to remand the case to state
court, R. 17. For the reasons that follow, Howmedica’s motion to sever is denied,
Schulke’s motion for remand is granted, and the case, in its entirety, is returned to
the Circuit Court of Cook County.
Discussion
As the removing party, Howmedica has the burden to establish federal
subject matter jurisdiction. See Phillips v. Howmedica Osteonics Corp., 2007 WL
4441228, at *2 (S.D. Ill. Dec. 17, 2007) (citing Meridian Sec. Ins. Co. v.
Sadowski, 441 F.3d 536, 540 (7th Cir. 2006)). “Courts should interpret the removal
statute narrowly and presume that the plaintiff may choose his or her forum. Put
another way, there is a strong presumption in favor of remand.” Id. (quoting
authority). “All doubts about the propriety of removal are to be resolved in favor of
remand.” Kopitke v. Depuy Orthopaedics, Inc., 2011 WL 856865, at * 2 (N.D. Ill.
Mar. 8, 2011) (citing Doe v. Allied–Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993)).
Howmedica asserts two arguments in support of its motion to sever: (1) that
the defendants are misjoined under Rule 20; and (2) that because the medical
Plaintiff does not disagree. The Court therefore refers to the defendant in this
opinion by its proper name, though the case has not been re-captioned.
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defendants are not “indispensible parties” under Rule 19, and because Howmedica
intends to assert a federal preemption defense, the Court should exercise its
discretion to sever the medical defendants and retain Schulke’s claims against
Howmedica. Neither argument is availing.
A.

Defendants are properly joined.

First, the defendants are not misjoined. Rule 20 permits joinder of defendants
if “(A) any right to relief is asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same transaction, occurrence, or
series of transactions or occurrences; and (B) any question of law or fact common to
all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). Howmedica concedes
that Schulke’s complaint casts Howmedica and the medical defendants as joint
tortfeasors, but disputes that the claims against them arise out of the same
transaction and involve common questions of law and fact. Specifically, Howmedica
asserts that:
The claims against the Medical Defendants sound in medical
negligence and what did or did not happen in office visits and the
operating room. The claims against [Howmedica], on the other hand,
relate to the design, manufacturing, marketing, and distribution of
Plaintiffs’ various implant components.
R. 3 at 11. So finely parsing Schulke’s claims misses the critical point: all of
Schulke’s claims for relief arise out of his hip replacement and revision surgeries
and the after-effects of those surgeries, allegedly as a result of medical negligence,
product malfunction, or a combination of both. The extent of Schulke’s injuries and
what caused those injuries are questions of fact common to each of the separately
alleged claims for relief. In other words, under the circumstances of this case, “the
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medical malpractice and product liability claims are completely intertwined.”
Stephens v. Kaiser Found. Health Plan of the Mid-Atlantic States, Inc., 807 F. Supp.
2d 375, (D. Md. 2011).
Howmedica asserts that “courts have frequently severed claims [for
misjoinder] where, as here, the case involves concurrent claims for medical
negligence against healthcare defendants and product liability claims against
manufacturers.” R. 3 at 10. In support, Howmedica cites to two inapposite cases
severing claims for reasons not at issue here. The first case, Sutton v. Davol, Inc.,
251 F.R.D. 500 (E.D. Cal. 2008), severed a non-diverse, dispensable defendant “with
no real connection with the dispute” who was fraudulently named by the plaintiff
“for the purpose of precluding removal.” Id. at 503-04. There is no similar allegation
of fraudulent joinder to defeat diversity here. In the second case Howmedica cites,
Green v. Wyeth, 344 F. Supp. 2d 674 (D. Nev. 2004), the non-diverse, dispensable
defendants were severed because only two of five plaintiffs had claims against them
and because those two plaintiffs’ claims arose from entirely separate factual
circumstances. Id. at 683-84. By contrast, and as set forth above, Schulke’s claims
against the defendants arise from a single series of transactions (the hip
replacement and revision surgeries) and present common questions of law and fact
(such as the extent and cause of Plaintiff’s damages). While Howmedica is correct
that misjoinder has been found in combined medical malpractice/product defect
cases, the decisions it cites are constrained to their facts, which are distinguishable
from the facts of this case.

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More closely analogous to this case are the myriad district court opinions
holding joinder of medical and manufacturing defendants proper where, as here, the
plaintiff seeks redress for damages arising from the allegedly negligent
implantation or removal of an allegedly defective medical device. See, e.g., Stephens,
807 F. Supp. 2d at 384-85 (finding joinder proper where “the very genesis of this
case is the surgery and implantation of an allegedly faulty medical device in [the
plaintiff’s] body,” and noting that “[t]he fact that plaintiff might have to offer
different evidence to establish his medical negligence and product liability claims
cannot alter this analysis”); Wyatt v. Charleston Area Med. Ctr., Inc., 651 F. Supp.
2d 492, 499 (S.D.W.Va. 2009) (“All of these claims for relief arise out of the same
occurrence: [the plaintiff’s cardiac defibrillator] surgery and the after effects of that
surgery . . . In this case, the medical injuries are intertwined with the claims
against [the manufacturer defendant].”); see also Wolfe v. C.R. Bard, Inc., 2016 WL
2956557, at *6 (D. Ariz. May 23, 2016) (finding proper the joinder of the surgeon
who performed an inferior vena cava filter implant surgery with the manufacturer
of the filter); Hagensicker v. Bos. Scientific Corp., 2012 WL 836804, at *3 (W.D. Mo.
Mar. 12, 2012) (finding “a reasonable basis to join the treating healthcare
defendants with the product manufacturer” in an action for damages arising from
the implantation of three pelvic mesh products). This Court follows suit.
B.

Discretionary severance is not warranted.

Alternatively, Howmedica argues that the Court should exercise its
discretion under Rule 21 to sever the claims against the medical defendants because

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the medical defendants are not “persons required to be joined” under Rule 19 and
because of the “important and substantial interest in having a federal court” decide
“complex federal preemption issues.” R. 3 at 1; R. 19 at 3. The Court agrees with
Howmedica that the medical defendants are not indispensible under Rule 19. See
Temple v. Synthes Corp., Ltd., 498 U.S. 5, 7 (1990) (“It has long been the rule that it
is not necessary for all joint tortfeasors to be named as defendants in a single
lawsuit . . . [A] tortfeasor with the usual joint-and-several liability is merely a
permissive party to action against another with like liability.”) (internal
punctuation and citations omitted); see also Ropp v. Stryker Corp., 2011 WL 304770,
at *4-5 (S.D. Ind. Jan. 6, 2011). Thus, the medical defendants may be severed at the
Court’s discretion, provided severance is “on just terms.” Fed. R. Civ. P. 21 (“the
court may at any time, on just terms . . . drop a party”); see also Dexia Credit Local
v. Rogan, 2009 WL 230641, at *3 (N.D. Ill. Jan. 29, 2009) (“Courts may use Rule 21
to dismiss a dispensible non-diverse party to save diversity jurisdiction”); Livingston
v. Hoffman-LaRoche, Inc., 2009 WL 2448804, at *6-7 (N.D. Ill. Aug. 6, 2009)
(emphasizing that severance of dispensible parties is only permissible “on just
terms”). The “authority to dismiss a dispensable nondiverse party . . . should be
exercised sparingly,” with careful consideration for any prejudice severance may
cause to parties to the litigation. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S.
826, 837-38 (1989).
Severance here would not be just. In separate actions, the defendants could
exploit an “empty chair” defense not available in a joint trial. See Tinsley v. Streich,

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MD, 2015 WL 7009488, at *9 (W.D. Va. Nov. 12, 2015). Although it is possible that
each jury could find the defendants jointly and severally liable, it is also possible
that a jury could find in favor of each in-court defendant, thus exposing Schulke to
the risk of inconsistent judgments and incomplete recovery. See Echols v. Omni
Med. Grp., Inc., 751 F. Supp. 2d 1214, 1217 (N.D. Okl. 2010). Severance would also
require Schulke to litigate on two fronts in two separate courts with duplicative
discovery and all the cost and delay that entails. See Bostic v. Glaxosmithkline, 2015
WL 84868181, at *2 (E.D. Ky. Dec. 9, 2015). The overlap between the two cases
would mean that Schulke would have to double its efforts. See Johnson v. Bartley,
2015 WL 5612251, at *2 (E.D. Ky. Sept. 21, 2015). Given the prejudice to Schulke of
severance, the Court declines to exercise its discretion under Rule 21.
The Court recognizes that there are a handful of cases severing medical
defendants to retain diversity jurisdiction, and Howmedica cites extensively to one
of them, Mayfield v. London Women’s Care PLLC, 2015 WL 3440492 (E.D. Ky. May
28, 2015), in its briefs. Unlike this case, however, the manufacturer defendant in
Mayfield was already defending a multidistrict litigation regarding the product
defects alleged in the plaintiff’s complaint. Under those circumstances, the district
court found that justice favored severance so that the product liability claims could
be transferred to the consolidated multidistrict action. Id. at *5 (noting that if the
product claims were severed, “[t]he cost and burden of litigating against [the
manufacturer] would drop considerably, and Plaintiffs’ ability to potentially
negotiate a settlement would be greatly enhanced”); see also Sullivan v. Calvert

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Mem’l Hosp., 117 F. Supp. 3d 702, 707 (D. Md. 2015) (“Severance is particularly
appropriate in this case because it would allow for the transfer of [the plaintiff’s]
claims against [the manufacturer defendant] to multi-district litigation currently
pending . . . where over 25,000 products liability cases based on the [medical device
in issue] are being litigated.”). There is no multidistrict litigation regarding the
component parts at issue in this case, so the efficiencies noted in Mayfield and
Sullivan would not be achieved by severing the defendants here. In summary, then,
the cases Howmedica relies upon to support discretionary severance turn on policy
considerations not present in this case. Accordingly, they are not persuasive.
Nor does fact that Howmedica intends to assert a federal preemption defense
weigh in favor of severance. Howmedica does not cite any district court opinions
severing a non-diverse defendant because a diverse defendant asserted a
preemption (or other federal law) defense. This is likely because state courts
routinely consider federal preemption, including preemption under the Medical
Device Amendments to the Federal Drugs and Cosmetics Act at issue here. See, e.g.,
Haudrich v. Howmedica, 662 N.E.2d 1248 (Ill. 1996). Howmedica’s concern for a
consistent corpus of federal preemption case law is thus overstated. Federal
preemption law applies, and can be applied properly, no matter what court the case
is heard in, whether state or federal.
Finally, a plaintiff is generally the master of his complaint and can choose
who he wants to sue (subject to rules of joinder of necessary parties) wherever there
is jurisdiction to sue them. See Bostic, 2015 WL 84868181, at *2 (citing Lincoln

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Prop. Co. v. Roche, 546 U.S. 81, 91 (2005)). Here, Schulke chose to sue all
defendants together in state court. There was no fraudulent or bad faith joinder of a
plainly irrelevant party for the sole purpose of destroying diversity. The defendants
are properly joined here and severing them would be prejudicial to Schulke’s case,
both logistically and substantively. There is no thus good reason to contravene
Schulke’s choice of parties and forum.
Conclusion
For these reasons and for the reasons stated orally in open court,
Howmedica’s motion to sever, R. 2, is denied and Schulke’s motion for remand,
R. 17, is granted. The case shall be returned to the Circuit Court of Cook County.
Defendant’s motion to dismiss, R. 10, is denied as moot.
ENTERED:

Honorable Thomas M. Durkin
United States District Judge
Dated: May 31, 2016

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