Millman et al v. Biomet et al
Filing
78
OPINION AND ORDER DENYING 6 MOTION by Plaintiffs Leonard Millman, Rochelle Millman to remand and DISMISS their claims against defendants T.L. Weis & Associates, A. Garcia, and Adam Garcia contained in Counts III and IV of their complaint, and DENYING AS MOOT 30 MOTION TO DISMISS by defendants T.L. Weis & Associates, A. Garcia, and Adam Garcia. Signed by Judge Robert L Miller, Jr on 12/10/2013. (lyb)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ROCHELLE MILLMAN and
LEONARD MILLMAN,
Plaintiffs
vs.
BIOMET ORTHOPEDICS, INC.,
et al.,
Defendants
)
)
)
)
)
)
)
)
)
)
)
CAUSE NO. 3:13-CV-77 RLM-CAN
This Document Relates to:
Cause No. 3:12-MD-2391 RLM-CAN
OPINION and ORDER
Illinois citizens Rochelle and Leonard Millman brought suit against
defendants Biomet Orthopedics, LLC, and Biomet, Inc. (collectively, Biomet)1 and
T.L. Weis & Associates, Inc. and Adam Garcia (Weis defendants)2 in the Cook
County, Illinois, Circuit Court for strict product liability, negligence, and loss of
consortium. Biomet removed the case to the Northern District of Illinois, Eastern
Division, pursuant to 28 U.S.C. § 1446, alleging diversity of citizenship. The
Judicial Panel on Multidistrict Litigation transferred the case into the Biomet
multi-district litigation docket in this court.
1
Two other improperly named Biomet entities – Biomet and Biomet Orthopedics, Inc. – were
dismissed as defendants following transfer of the case to this court.
2
The complaint also names “A. Garcia” as a defendant; according to the defendants, A.
Garcia and Adam Garcia are the same person. Adam Garcia is an employee of T.L. Weis &
Associates, Inc.
The case is before me on the Millmans’ remand motion. For diversity
purposes, the Millmans are citizens of Illinois; the Biomet defendants are Indiana
citizens; T.L. Weis & Associates is an Illinois citizen; and Adam Garcia is a citizen
of Illinois. In removing the case to federal court, Biomet claimed that the Weis
defendants’ citizenship should be disregarded because those defendants were
fraudulently joined, i.e., the Millmans have no reasonable probability of
establishing or prevailing on any claim against the Weis defendants. The Millmans
argue in their remand motion that their complaint contains viable causes of action
against the Weis defendants.
Federal jurisdiction based on diversity of citizenship requires that the
parties be completely diverse. 28 U.S.C. § 1332(a). A plaintiff can’t join a nondiverse defendant for the sole purpose of destroying diversity jurisdiction. Schur
v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 763 (7th Cir. 2009). To establish
fraudulent joinder, a removing defendant must show that, “‘after resolving all
issues of fact and law in favor of the plaintiff, the plaintiff cannot establish a cause
of action against the in-state defendant.’ Framed a different way, the . . . court
must ask whether there is ‘any reasonable possibility’ that the plaintiff could
prevail against the non-diverse defendant. A defendant bears a ‘heavy burden’ to
demonstrate that the joinder is fraudulent. ” Schur v. L.A. Weight Loss Ctrs., 577
F.3d 752, 764 (7th Cir. 2009) (quoting Poulos v. Naas Foods, Inc., 959 F.2d 69, 73
(7th Cir. 1992)). Fraudulent joinder doesn’t require a showing of bad faith on the
plaintiff’s part, but exists if the claims against the non-diverse defendant have no
2
chance of success. Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992);
Scheinman v. BMW of North America, LLC, No. 10 C 4848, 2010 WL 3937489, at
*2 (N.D. Ill. Sept. 30, 2010). If the removing defendant can meet this “heavy
burden,” the court may “disregard, for jurisdictional purposes, the citizenship of
certain nondiverse defendants, assume jurisdiction over a case, dismiss the
nondiverse defendants, and thereby retain jurisdiction,’” Schur v. L.A. Weight Loss
Ctrs., 577 F.3d 752, 763 (7th Cir. 2009) (internal quotation and citation omitted);
see also Morris v. Nuzzo, 718 F.3d 660, 666 (7th Cir. 2013) (“Because the district
court may ‘disregard’ the nondiverse defendant, we have described the fraudulent
joinder doctrine as an ‘exception’ to the requirement of complete diversity.”).
To decide whether a defendant has been fraudulently joined, I can pierce the
pleadings to consider summary judgment-type evidence, such as affidavits and
deposition testimony. See Rutherford v. Merck & Co., Inc., 428 F. Supp. 2d 842,
848 (S.D. Ill. 2006) (fraudulent joinder considerations are limited to
“uncontroverted . . . evidence which establishes unmistakably that a
diversity-defeating defendant cannot possibly be liable to a plaintiff under
applicable state law”). “[A] limited use of affidavits and other evidence is
permissible so long as the evidence is not used to ‘pre-try’ the case.” Siegel v. H
Group Holding, Inc., No. 07 C 6830, 2008 WL 4547334, at * 3 (N.D. Ill. Apr. 9,
2008). Compare Wecker v. National Enameling & Stamping Co., 204 U.S. 176,
183-185 (1907) (concluding that non-diverse defendant was fraudulently joined
where uncontradicted affidavits showed the defendant was merely a draftsman
3
with no responsibility for designing the machine at issue), and Faucet v. IngersollRand Min. & Machinery Co., 960 F.2d 653, 654-655 (7th Cir. 1992) (fraudulent
joinder established via uncontroverted affidavit statement of defendant that he
“had absolutely nothing to do with” the machine alleged to have caused plaintiff’s
injury), with Momans v. St. John’s Northwestern Military Academy, Inc., No. 99
C 8510, 2000 WL 33976543, at *4 (N.D. Ill. Apr. 20, 2000) (court declined to
consider defendants’ affidavits on issue of fraudulent joinder where affidavits
contained “substantive, rather than jurisdictional facts” addressing “the merits of
the case” rather than the propriety of removal).
Strict Liability Claim
Biomet claims the Millmans’ complaint doesn’t contain allegations sufficient
to state a claim under the Illinois Distributor Statute, 735 Ill. Comp. Stat. 5/2621, which provides that “[i]n any product liability action based in whole or in part
on the doctrine of strict liability in tort,” a court must dismiss a non-manufacturer
defendant once that defendant “files an affidavit certifying the correct identity of
the manufacturer of the product allegedly causing injury, death or damage.”
Whelchel v. Briggs & Stratton Corp., 850 F. Supp. 2d 929, 932 (N.D. Ill. 2012)
(quoting Historical and Statutory Notes to 735 ILCS 5/2-621 (providing preamendment language of subsections (a) and (b)) and 735 ILCS 5/2-621(b)); South
Side Trust and Sav. Bank of Peoria v. Mitsubishi Heavy Indus., Ltd., 927 N.E.2d
179, 186 (Ill. App. Ct. 2010) (same). “A court may not order dismissal, however,
4
where a plaintiff shows that the distributor (1) participated in the design or
manufacture of the product, (2) had actual knowledge of the defect in the product,
or (3) created the defect in the product.” Whelchel v. Briggs & Stratton Corp., 850
F. Supp. 2d 929, 932 (N.D. Ill. 2012) (quoting 735 ILCS 5/2-621(c)).
Biomet relies on the declaration of Timothy Weis, owner of defendant T.L.
Weis & Associates, Inc., who states that Biomet Orthopedics, LLC is the
manufacturer of the Magnum Device and the components of the device at issue
in this case. Weis Decl. (Removal Notice, Exh. D), ¶ 4. Mr. Weis also says Weis &
Associates didn’t exercise any control over the design or manufacture of the
Magnum Device, played no role in the design, testing, or manufacture of the
Magnum Device, and delivers the Magnum Devices to hospitals “in sterile
packaging that has been labeled, packaged, and sealed by Biomet.” Weis Decl., ¶¶
6, 9, 10. The Millmans haven’t challenged any of Mr. Weis’s statements nor have
they come forward with any contrary evidence.
The complaint against the Weis defendants must be dismissed unless the
Millmans can demonstrate a reasonable possibility that the Weis defendants
“participated in the design and manufacturer of the allegedly defective product,
had actual knowledge of the alleged defect in the product, or created the defect.”
South Side Trust and Sav. Bank of Peoria v. Mitsubishi Heavy Indus., Ltd., 927
N.E.2d 179, 186 (Ill. App. Ct. 2010). They haven’t done so. The Millmans haven’t
set forth specific facts supporting their conclusion that a reasonable possibility
exists that the Weis defendants had actual knowledge of the defect in the product.
5
See Pooh-Bah Enterprises, Inc. v. County of Cook, 905 N.E.2d 781, 789 (Ill. 2009)
(“A plaintiff may not rely on mere conclusions of law or fact unsupported by
specific factual allegations.”); Beahringer v. Page, 789 N.E.2d 1216, 1221 (Ill.
2003) (“A plaintiff must allege facts sufficient to bring his or her claim within the
scope of the cause of action asserted.”). Nor have they set forth any facts that
could reasonably support their conclusion that the Weis defendants created a
defective condition by mishandling or altering the Magnum Device. See Weidner
v. Midcon Corp., 767 N.E.2d 815, 819 (Ill. App. Ct. 2002) (“[A]n actionable wrong
cannot be made out merely by characterizing acts as having been wrongfully
done.”).
The Millmans claim in their reply that because a defendant dismissed under
the distributor statute may be reinstated, a dismissal under that statute is merely
conditional, the dismissed defendant remains a party to the action, and no
fraudulent joinder can be found. While the distributor statute allows a plaintiff “‘at
any time’ to move to reinstate a dismissed defendant upon a showing that an
action against the manufacturer is time-barred, the manufacturer was incorrectly
identified, the manufacturer is not subject to the court’s jurisdiction, or the
manufacturer cannot satisfy a judgment or settlement,” Scheinman v. BMW of
North America, LLC, No. 10 C 4848, 2010 WL 3937489, at *3 (N.D. Ill. Sept. 30,
2010) (citing 735 ILCS 5/2–621(b)), the Millmans haven’t alleged that any of those
scenarios apply here. In addition, more recent cases have held to the contrary: “To
allow the conditional nature of a § 2-621 dismissal to defeat diversity jurisdiction
6
in all cases where a distributor is nondiverse would change the Poulos ‘reasonable
possibility’ test into an ‘any possibility’ test. The question, therefore, is whether
there is a ‘reasonble possibility’ that plaintiff can establish one of the § 2-621(c)
factors and, if not, whether there is a ‘reasonable possibility’ that the plaintiff will
be unable to recover from the manufacturer for one of the reasons stated in § 2621(b).” Whelchel v. Briggs & Stratton Corp., 850 F. Supp. 2d 926, 934 (N.D. Ill.
2012); see also Xiaofa Shi v. American Honda Motor Co., Inc., No. 11 C 2682,
2011 WL 5403618, at * 2 (N.D. Ill. Nov. 8, 2011); Steel v. Ford Motor Co., No. 11
C 460, 2011 WL 1485380, at * 4 (N.D. Ill. Apr. 19, 2011).
The Millmans haven’t established a reasonable possibility that they could
prevail on their claim of strict liability against the Weis defendants.
Negligence Claim
The Millmans allege in their complaint that the Weis defendants were
negligent when they “recommended” that the Biomet hip be implanted in Ms.
Millman. A claim of negligence may be established under Illinois law by showing
that the defendant owed a duty of care to the plaintiff, the defendant breached
that duty, and the breach was the proximate cause of plaintiff’s injury. F.D.I.C.
v. Masarsky, No. 12 C 6353, 2013 WL 4560057, at *10 (N.D. Ill. Aug. 27, 2013);
Calles v. Scripto-Tokai Corp., 864 N.E.2d 249, 263 (Ill. 2007). Under the learned
intermediary doctrine, the duty of care relating to a medical device is owed to a
patient by the physician, not by the distributor of the device: “[The] doctor, not the
7
manufacturer or distributor of the medical device, owes [the patient] a duty to
warn of potential risks.” Rumick v. Stryker Corp., No. 09 C 7736, 2010 WL
5060251, at *4 (N.D. Ill. Dec. 3, 2010); see also Kennedy v. Medtronic, Inc., 851
N.E.2d 778, 784 (Ill. App. Ct. 2006) (the prescribing doctor “acts as a ‘learned
intermediary’ between the manufacturer and the consumer”). The Millmans
haven’t alleged that the Weis defendants owed them a duty of care.3 “Lacking a
threshold allegation of the existence of a duty, allegations that certain acts or
omissions are negligent are conclusory and are insufficient to state a cause of
action for negligence.” McLean v. Rockford Country Club, 816 N.E.2d 403, 407 (Ill.
App. Ct. 2004).
The Millmans claim that evidence establishing “substantial involvement” by
the Weis defendants demonstrates “a reasonable possibility that [they] can prevail
against the Weis defendants in a negligence claim.” The Millmans first point to
Timothy Weis’ declaration in which, as they read it, he acknowledged that the
Weis defendants disseminated information concerning the prosthetic hip device,
displayed samples of the device, and delivered the device to Good Shepherd
Hospital the day it was implanted. The Millmans’ argument in this regard only
tells part of the story: Mr. Weis’s declaration statements are that the information
disseminated by his company about the device was “created and prepared by
3
To the extent the Millmans present a claim for negligent misrepresentation, they haven’t
alleged any duty on the part of the Weis defendants “to use due care in obtaining and
communicating information upon which others may reasonably be expected to rely in the conduct
of their economic affairs.” Fox Assocs., Inc. v. Robert Half Int’l, Inc., 777 N.E.2d 603, 609 (Ill. App.
Ct. 2002).
8
Biomet;” the devices supplied to hospitals were “pre-ordered Biomet devices . . .
with the package inserts and marketing materials accompanying the prosthesis;”
the devices were “delivered to the hospital in sterile packaging that [have] been
labeled, packaged, and sealed by Biomet;” and [i]in no event does or did Weis or
any Weis representatives remove the implant from the inner sterile packaging
prior to it being implanted in the patient.” Weis Dec., ¶ 10. Mr. Weis says, too,
that the Weis defendants don’t “offer or make any warranties on any Biomet
product” and have never made “any representations or statement or provided any
express or implied warranties to any physician or to any member of the public,
including the plaintiffs in this case.” Weis Dec., ¶ 12. Mr. Weis adds that “[t]he
decision to implant a certain prosthesis is made by a physician and not by Weis
or its representatives,” Weis Dec., ¶ 12, and neither he nor any Weis
representative “had any direct dealings or communications with either of the
plaintiffs in this case.” Weis Dec., ¶ 13. Although the Millmans point to portions
of Mr. Weis’s declaration statements, they haven’t challenged those statements or
any other statements made by Mr. Weis in his declaration.
The Millmans also contend that hospital records show the Weis defendants
participated in the surgical procedure – the Millmans assert that “[b]y remaining
in the operating room throughout the procedure, the Weis defendants were far
more involved with the subject prosthetic hip than its mere delivery to the hospital
as Timothy Weis’ declaration asserts.” Remand Mot., ¶ 15. The document upon
which they rely, entitled “Operative Nursing Record,” lists “A. Garcia, Biomet Rep.”
9
as an “Observer” on April 16, 2008. The Millmans’ complaint alleges that the Weis
defendants “recommended” implantation of the Magnum Device, an allegation that
doesn’t equate to a claim that the Weis defendants “participated” in the surgical
procedure. See Cangemi v. Advocate South Suburban Hosp., 845 N.E.2d 792, 804
(Ill. App. Ct. 2006) (“a plaintiff must allege facts sufficient to bring his or her claim
within the scope of the cause of action asserted”). The Millmans have alleged no
facts to support their conclusions that the Weis defendants “improperly or
incompletely disseminated information [that] resulted in incomplete information
or negligent advice being provided to the plaintiff’s surgeon,” Remand Mot., ¶ 17,
or that the Weis defendants “mishandled or altered the product and thereby
created the defective condition that caused the plaintiff’s damages.” Remand Mot.,
¶ 18. See Montgomery v. American Airlines, Inc., 626 F.3d 382, 389 (7th Cir.
2010) (conclusory statements are not admissible as evidence); Marshall v. Burger
King Corp., 856 N.E.3d 1048, 1053 (Ill. 2006) (“The plaintiff must allege facts
sufficient to bring a claim within a legally recognized cause of action, not simply
conclusions.”). Thus, the Millmans haven’t demonstrated that they have a
reasonable possibility of prevailing on a negligence claim against the Weis
defendants. See Poulos v. Naas Foods, Inc., 959 F.2d 69, 74 (7th Cir. 1992)
(defendant not required to “negate any possible theory that [plaintiffs] may allege
in the future: only [their] present allegations”).
Based on the foregoing,
10
(a) I DENY the plaintiffs’ motion to remand [docket # 6] and
DISMISS their claims against defendants T.L. Weis & Associates, A.
Garcia, and Adam Garcia contained in Counts III and IV of their
complaint, and
(b) I DENY AS MOOT the motion to dismiss of defendants T.L.
Weis & Associates, A. Garcia, and Adam Garcia [docket # 30].
SO ORDERED.
ENTERED:
December 10, 2013
/s/ Robert L. Miller, Jr.
Judge, United States District Court
11
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?