Hullett et al v. Ethicon, Inc. et al
MEMORANDUM Opinion and Order written by the Honorable Matthew F. Kennelly on 11/13/2017: For the reasons stated, the Court denies Ethicon's motion to sever [dkt. no. 6]. And because there are Illinois citizens on both sides of the case and (fo r the reasons just discussed) no fraudulent joinder or misjoinder of the medical defendants, there is no basis for federal subject matter jurisdiction. Removal was therefore inappropriate. The Court remands the case to the Circuit Court of Cook County and directs the Clerk to transmit the remand order forthwith. The ruling date of November 14, 2017 is vacated. Mailed notice. (pjg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
ANN M. HULLETT and
SANDRA CULBERTSON, M.D.,
THE UNIVERSITY OF CHICAGO
MEDICAL CENTER, PALOS
COMMUNITY HOSPITAL, ETHICON,
INC., ETHICON US, LLC, and
JOHNSON & JOHNSON, INC.,
Case No. 17 C 6914
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
In May 2013, Ann Hullett had surgery that included implantation of Gynecare
mesh. She alleges that the mesh later migrated and disintegrated, causing injury and
requiring further surgery. Hullett and her husband (collectively Hullett) filed a lawsuit in
state court against Dr. Sandra Culbertson, who performed the 2013 surgery, as well as
the University of Chicago Medical Center and Palos Community Hospital, which
employed Culbertson (collectively the medical defendants). Hullett later amended her
complaint to add as defendants Ethicon Inc., Ethicon US, LLC, and Johnson & Johnson
(collectively Ethicon), which manufactured and designed the mesh product.
Ethicon removed the case to federal court, alleging "complete diversity among all
properly joined and served parties." Not. of Removal at 1. Both Hullett and the medical
defendants are Illinois citizens, but Ethicon alleges that they are improperly joined in
Hullett's suit against Ethicon. After removing the case, Ethicon moved to sever the
claims against it from those against the medical defendants. Both Hullett and the
medical defendants object, and both ask the Court to remand the case to state court
due to lack of complete diversity of citizenship.
Ethicon argues that severance is appropriate because Hullett's claims against the
medical defendants are improperly misjoined with the claims against Ethicon, or
because the medical defendants are not necessary parties with respect to Hullett's
claims against Ethicon.
The claims against the two groups of defendants are properly joined. Under
Federal Rule of Civil Procedure 20(a), joinder of defendants is proper if the claims
against them arise from the same transaction, occurrence, or series of transactions or
occurrences, and a question of law or fact common to all defendants will arise during
the course of the suit. All of Hullett's claims arise from the implantation of the Gynecare
mesh during her first surgery and the after-effects of that surgery. It is too early to say
what, if anything, went wrong, but the possibilities include a defective product, deficient
instructions regarding its implantation, medical negligence in connection with its
implantation, or some combination of these factors. And at this point, there is a
reasonably significant likelihood that Ethicon will contend that any problem resulted from
the manner in which the surgeon implanted the mesh and that the medical defendants
will contend that any problem resulted from the condition of the mesh or the instructions
on how to implant it. There is, therefore, a logical relationship between the claims
against the two groups of defendants, which is sufficient to establish that the claims
against them arise from the same transaction or occurrence. And these same
considerations establish that there are many common factual questions. For these
reasons, the requirements of Rule 20(a) are met, and it was proper for Hullett to join her
claims against the two groups of defendants. See, e.g., Bd. of Regents of Univ. of Wis.
Sys. v. Phoenix Int'l Software, Inc., 653 F.3d 448, 470 (7th Cir. 2011) (construing
"transaction or occurrence" as used in Fed. R. Civ. P. 13(a)); Saval v. BL Ltd., 710 F.2d
1027, 1031 (4th Cir. 1983) (applying "logical relationship" test under Fed. R. Civ. P. 20);
Schulke v. Stryker Orthopaedics, No. 16 C 2563, 2016 WL 3059114, at *2-2 (N.D. Ill.
May 31, 2016) (Durkin, J.) (addressing a situation similar to this one; collecting cases);
Stephens v. Kaiser Found. Health Plan of Mid-Atl. States, Inc., 807 F. Supp. 2d 375,
382-85 (D. Md. 2011) (same). See generally United States v. State of Mississippi, 380
U.S. 128, 142-43 (1965) (allowing related claims against different defendants as part of
It is likely true, as Ethicon argues, that the medical defendants are not necessary
or indispensable parties under Federal Rule of Civil Procedure 19 with regard to
Hullett's claims against Ethicon. But that does not require severance of the two sets of
claims. Severance, which is governed by Federal Rule of Civil Procedure 21, is
discretionary, as Ethicon concedes. Mem. in Support of Defs.' Mot. to Sever at 8.
Specifically, a court "has the discretion to sever any claims that are 'discrete and
separate' in the interest of judicial economy and to avoid prejudice." Vermillion v.
Levenhagen, 604 F. App'x 508, 513 (7th Cir. 2015) (quoting Gaffney v. Riverboat Servs.
of Indiana, Inc., 451 F.3d 424, 442 (7th Cir. 2006)). Claims are discrete and separate if
each is capable of resolution despite the outcome of the other, as distinguished from
claims that are "factually interlinked, such that a separate trial may be appropriate, but
final resolution of one claim affects the resolution of the other." Gaffney, 451 F.3d at
The Court is not persuaded that severance of the claims against the two groups
of defendants is appropriate here. The Court cannot say it much better than Judge
Durkin did in Schulke, so it will quote his decision here:
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, 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 incourt defendant, thus exposing [plaintiff] 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 [plaintiff] 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 [plaintiff] would have to
double its efforts. See Johnson v. Bartley, 2015 WL 5612251, at *2 (E.D.
Ky. Sept. 21, 2015).
Schulke, 2016 WL 3059114, at *3.
It is true that here, unlike in Schulke, claims against Ethicon involving surgical
mesh are part of a multi-district litigation (MDL) proceeding pending in another district.
But severance of Hullett's claims against Ethicon and transfer of those claims to the
MDL proceeding would not eliminate the need for Hullett to conduct duplicative
discovery; to the contrary, it would require her to litigate in two different states, thus
adding significantly to her costs. The other prejudicial factors that Judge Durkin
identified in Schulke would also continue to exist. The prejudice to Hullett that would
result from transfer is not outweighed by Ethicon's interest in consolidating mesh-related
claims against it in a single forum. 1 Finally, as Judge Durkin stated in Schulke:
[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. Here, [plaintiff] 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 [plaintiff's] case, both logistically and substantively.
There is no thus good reason to contravene [plaintiff's] choice of parties
Id. at *4.
For the reasons stated above, the Court denies Ethicon's motion to sever [dkt.
no. 6]. And because there are Illinois citizens on both sides of the case and (for the
reasons just discussed) no fraudulent joinder or misjoinder of the medical defendants,
there is no basis for federal subject matter jurisdiction. Removal was therefore
inappropriate. The Court remands the case to the Circuit Court of Cook County and
directs the Clerk to transmit the remand order forthwith. The ruling date of November
14, 2017 is vacated.
MATTHEW F. KENNELLY
United States District Judge
Date: November 13, 2017
The Court notes that it is likely that Ethicon has already faced and will continue to face
mesh-related claims that have to be litigated in state court and cannot be part of the
MDL even though it has no co-defendants, specifically, claims against Ethicon by
citizens of the state in which Ethicon is incorporated and has its principal place of
business. This happens in virtually all product liability-related MDLs, including a large
MDL proceeding over which this Court is presiding, In re Testosterone Replacement
Therapy Prods. Liability Litig., MDL No. 2545 (N.D. Ill.), in which claims against various
defendants remain in and are being litigated in state court for this same reason. This
adds a layer of complexity to an MDL proceeding but, in the Court's experience, does
not typically undermine the interests served by MDL consolidation.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?