Marie et al v. Boneafied Orthopaedics, Inc. et al

Filing 41

OPINION AND ORDER: GRANTING the Marie's 31 and 32 Motions to Remand Case, DENYING their request for fees, and ORDERING this action REMANDED to the Civil District Court, Parish of Jefferson, Louisiana for further proceedings. Signed by Judge Robert L Miller, Jr on 5/15/17. (certified copy of Opinion and Order and Docket Sheet sent to Clerk, Civil District Court, Parish of Jefferson, PO Box 10, Gretna, LA 70054-0010)(jld)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CAROL MARIE, et al.,
Plaintiff
vs.
BIOMET, INC., et al.,
Defendants

)
)
)
)
)
)
)
)
)

CAUSE NO. 3:16-CV-872 RLM-MGG

OPINION and ORDER
Carol and Mary Marie filed suit in Louisiana state court against defendants
Biomet Inc.; Biomet Orthopedics, LLC; Biomet U.S. Reconstruction, LLC; Biomet
Manufacturing, LLC (collectively Biomet); Boneafied Orthopaedics, Inc. (formerly
known as Vallette and Associates); and Steve Vallette, alleging negligence,
misrepresentation, claims under the Louisiana Products Liability Act, violations
of the Louisiana Unfair Trade Practice and Consumer Protection Act, and loss of
consortium, all in relation to the alleged failure of Mr. Marie’s Biomet M2aMagnum hip implant. The defendants removed the case to the Eastern District
of Louisiana based on diversity of citizenship, and the Judicial Panel on
Multidistrict Litigation transferred the case into the Biomet multi-district
litigation docket in this court.
This matter is before me on the Maries’ motion to remand the case to the
Civil District Court of Jefferson Parish, Louisiana, where the action originated.
For diversity purposes, the Maries and defendants Boneafied and Mr. Vallette
are citizens of Louisiana; the Biomet defendants are citizens of Indiana. The

defendants removed this case to federal court based on their claim that the
Maries can’t prevail on any of their claims against Boneafied and Mr. Vallette,
meaning they were fraudulently joined solely to defeat diversity and their
citizenship should be disregarded for diversity purposes. The Maries counter that
Boneafied and Mr. Vallette are proper defendants, so complete diversity is
lacking and remand is proper. The Maries also ask that they be awarded
attorneys’ fees for the costs they have incurred in opposing Biomet’s removal of
this case to federal court.

I. STANDARD OF REVIEW
For a federal court to have jurisdiction over a suit based on diversity, there
must be complete diversity of citizenship; no defendant may share the citizenship
of any plaintiff. 28 U.S.C. § 1332(a). A plaintiff can’t fraudulently join a nondiverse defendant solely for the purpose of destroying diversity jurisdiction.
Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 763 (7th Cir. 2009).
“Fraudulent” in this context doesn’t mean bad faith on the plaintiff’s part; it
means that the claims against the non-diverse defendant have no chance of
success. Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992).
“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.” Morris v.
Nuzzo, 718 F.3d 660, 666 (7th Cir. 2013) (internal quotation marks omitted).
The party seeking removal – or, as here, resisting remand – bears the heavy
2

burden of showing that joinder was fraudulent. Schur v. L.A. Weight Loss Ctrs.,
577 F.3d 752, 763 (7th Cir. 2009). If the removing defendant meets that heavy
burden, the district court “may disregard the nondiverse defendant” for
jurisdictional purposes, such that the fraudulent joinder doctrine acts as “an
exception to the requirement of complete diversity.” Morris v. Nuzzo, 718 F.3d
660, 666 (7th Cir. 2013) (internal quotation marks omitted).
A court deciding whether a defendant has been fraudulently joined isn’t
limited to the pleadings, but may also consider evidence of the sort seen in
summary judgment motions, such as affidavits and deposition testimony.
Millman v. Biomet Orthopedics, Inc., No. 3:13-CV-77, 2013 WL 6498394, at *2
(N.D. Ind. Dec. 10, 2013); Siegel v. H Group Holding, Inc., No. 07 C 6830, 2008
WL 4547334, at *3 (N.D. Ill. Apr. 9, 2008) (“[A] limited use of affidavits and other
evidence is permissible so long as the evidence is not used to ‘pre-try’ the case.”);
see also Hack v. SAI Rockville L, LLC, No. WDQ-14-1985, 2015 WL 795853, at
*4 (D.Md. Feb. 24, 2015) (“The Court may consider the entire record, not only
the complaint, to determine the basis of joinder by any means available. But, it
may not act as a factfinder or delve too far into the merits in deciding a
jurisdictional question.”) (internal quotations marks and citations omitted). The
fraudulent joinder analysis requires a district court to apply state law to
determine whether the plaintiff would have any reasonable possibility of success
against the non-diverse defendant in state court. Schur v. L.A. Weight Loss Ctrs.,
577 F.3d 752, 764 (7th Cir. 2009). The parties agree that Louisiana law governs
this case.
3

II. DISCUSSION
Biomet maintains that joinder of Boneafied and Mr. Vallette was
fraudulent. It contends that the Maries’ complaint doesn’t contain allegations
sufficient to state a failure to warn claim, arguing that (1) Boneafied and Mr.
Vallette had no knowledge that the Magnum device was defective, (2) Louisiana's
learned intermediary doctrine shields them from a duty to warn, and (3) they
couldn’t alter or deviate from the FDA-approved labels and warnings supplied by
Biomet.

Actual or Constructive Knowledge of a Defect
Under Louisiana law, “the seller of a defective product may be liable in tort
if he knew or should have known that the product was defective, and he failed
to declare it.” Kelley v. Price-Macemon, Inc., 992 F.2d 1408, 1414 (5th Cir. 1993).
Courts apply the same standard in cases involving a product’s distributor. See,
e.g., Brown v. Johnson & Johnson, Inc., No. CIV.A. 15-2308, 2015 WL 6128706,
at *2 (E.D. La. Oct. 16, 2015).
Biomet asserts that neither Mr. Vallette nor Boneafied had knowledge of
any alleged risks associated with the Magnum device other than what was in the
device’s warnings and instructions, relying on the declarations of Mr. Vallette
and Greg Baffes, sales representative of Boneafied [Doc. No. 34-2 at 4; Doc. No.
34-3 at 4]. The Maries allege in their complaint that Boneafied and Mr. Vallette
knew or should have known that the Magnum device was not clinically safe [Doc.
4

No. 21 at 12, 19]. The Maries claim that the defendants received “a high number
of reports and warnings from surgeons and others regarding failed Magnum
components” and “were aware of defects and unreasonably high rates of
problems with the Magnum, including . . . high levels of metal wear causing local
and/or systematic damage in patients’ bodies.” Id. at ¶ 85, 91. Because I must
resolve all issues of fact in favor of the plaintiff when considering Biomet’s
fraudulent joinder claim, I can’t find that Boneafied and Mr. Vallette didn’t know
or shouldn’t have known that the device was allegedly defective. See Morris v.
Nuzzo, 718 F.3d 660, 666 (7th Cir. 2013) (requiring that a court resolve all issues
of fact in favor of the plaintiff when considering whether a defendant was
fraudulently joined).

Louisiana's Learned Intermediary Doctrine
Biomet next argues that Boneafied and Mr. Vallette didn’t owe a duty to
warn because, under the learned intermediary doctrine, a duty to warn the
physician is owed by the manufacturer of the product, not the manufacturer’s
sales representative or distributor. Instructive to my determination of this
question is Wells v. Medtronic, Inc., 171 F. Supp. 3d 493 (E.D. La. 2016), in
which the court considered whether a third party sales representative for a
medical device company was fraudulently joined. On a set of facts similar to
those before me in this case, the Wells court concluded that, under Louisiana
law, there was a possibility of recovery against a sales representative. Id. at 508–
509.
5

In Wells, as here, the defendants argued that the plaintiffs couldn’t state
a

claim

against

the

sales

representative

because

Louisiana's

learned

intermediary doctrine shields sales representatives from a duty to warn. Id. at
507. The court noted that “inquiries into similar situations by other courts have
resulted in different conclusions,” but the court’s review of relevant law didn’t
allow the court “to make an Erie guess that Louisiana law precludes recovery
against a sales representative, and as such, [d]efendants have not demonstrated
that there is no possibility of recovery by the plaintiff against an in-state
defendant.” Id.
Biomet argues that I shouldn’t be persuaded by Wells because it runs
contrary to prior cases from the Eastern District of Louisiana denying remand in
similar circumstances. See, e.g., Brown v. Johnson & Johnson, Inc., No. CIV.A.
15-2308, 2015 WL 6128706 (E.D. La. Oct. 16, 2015); Daniels v. Touro Infirmary,
No. CIV.A. 11-1586, 2011 WL 6140869 (E.D. La. Dec. 9, 2011). When
considering a motion to remand, I must resolve all ambiguities of law in favor of
the Maries and the Wells decision at least suggests that Louisiana's learned
intermediary doctrine might not be an obstacle to the Maries’ claim against
Boneafied and Mr. Vallette. See Morris v. Nuzzo, 718 F.3d 660, 666 (7th Cir.
2013).

Constraints of FDA-Approved Labels and Warnings
Biomet contends that the Maries’ failure to warn claim against Boneafied
and Mr. Vallette is groundless because distributors have no authority to, and are
6

prohibited from, altering or deviating from the FDA-approved labels and
warnings provided for the device by the manufacturer. Biomet’s argument relies
on PLIVA, Inc. v. Mensing, 564 U.S. 604, 613 (2011), in which the Supreme Court
held that federal law preempted state law failure to warn claims to the extent
that they required generic drug manufacturers to unilaterally strengthen the
warnings contained on an FDA-approved label.
At least some courts have declined to interpret Mensing as a bar to failure
to warn claims against a distributor. See, e.g., Brush v. Bayside Orthopaedics,
Inc., No. 8:14-CV-2163-T-36EAJ, 2014 WL 5426643, at *4 (M.D. Fla. Oct. 22,
2014); Fronczak v. Depuy Orthopaedics, Inc., No. 8:14-CV-2162-T-30MAP, 2014
WL 5175857, at *3 (M.D. Fla. Oct. 14, 2014); J.F. ex rel. Moore v. McKesson
Corp., No. 1:13-CV-01699-LJO, 2014 WL 202737, at *9 (E.D. Cal. Jan. 17,
2014); Smith v. Amylin Pharm., LLC, No. 13CV1236 AJB MDD, 2013 WL
3467442, at *4 (S.D. Cal. July 10, 2013). When considering a motion to remand
in product liability case involving the distributor of a hip implant, the Fronczak
court distinguished Mensing, noting that “[t]he question of a generic drug
manufacturer's ability to simultaneously comply with both state law and specific
federal regulations governing pharmaceuticals is not analogous to the question
of a distributor of a brand name medical device's ability to comply with both
[state] law and federal regulations governing medical devices.” Fronczak v. Depuy
Orthopaedics, Inc., No. 8:14-CV-2162-T-30MAP, 2014 WL 5175857, at *3 (M.D.
Fla. Oct. 14, 2014). These cases suggest that “the question of Mensing[’s] . . .

7

applicability to the instant case presents considerable doubts,” and I must
“resolve the uncertainty . . . in favor of [the p]laintiff.” Id.
When I resolve all issues of fact and law in favor of the Maries, as I must
on this motion to remand, I conclude that Biomet hasn’t met its heavy burden
of showing that there is no possibility that the Maries could succeed on their
failure to warn claim against Boneafied and Mr. Vallette. If proven, the
allegations in the Maries’ complaint could show that Boneafied and Mr. Vallette
knew or should have known that the Magnum device was defective and it isn’t
clear that Louisiana's learned intermediary doctrine or federal preemption render
the Maries’ claim groundless. Boneafied and Mr. Vallette weren’t fraudulently
joined, jurisdiction in this court isn’t proper under 28 U.S.C. § 1332, and I must
grant the Maries’ motion for remand.1

Request for Fees
The Maries’ motion also requests that they be awarded the fees they
incurred in opposing Biomet’s removal of this case to federal court pursuant to
28 U.S.C. § 1447(c). Plaintiffs are entitled to attorneys’ fees in removal cases
“only where the removing party lacked an objectively reasonable basis for seeking
removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). A
defendant will be found to lack an objectively reasonable basis for seeking

1 Because the Maries state a failure to warn claim such that Louisiana law might impose
liability on Boneafied and Mr. Vallette under the facts alleged, I needn’t address whether
Boneafied and Mr. Vallette could be held liable for misrepresentation, violations of the
Louisiana Unfair Trade Practice and Consumer Protection Act, and loss of consortium.

8

removal if “clearly established law demonstrated that he had no basis for
removal.” Lott v. Pfizer, Inc., 492 F.3d 789, 793 (7th Cir. 2007).
Biomet didn’t carry its burden of establishing that the Maries had no
possibility of recovery against Boneafied or Mr. Vallette, but its bases for removal
weren’t objectively unreasonable. As the Wells court noted in a procedurally and
factually similar case, “[t]here is no controlling authority on point” for the precise
issue presented “and inquiries into similar situations by other courts have
resulted in different conclusions.” Wells v. Medtronic, Inc., 171 F. Supp. 3d 493,
508 (E.D. La. 2016). Therefore, I will deny the Maries’ request for fees.

III. CONCLUSION
For the foregoing reasons, the court GRANTS the Maries’ motion to remand
[Doc. No. 31 and 32], DENIES their request for fees, and ORDERS this action
REMANDED to the Civil District Court, Parish of Jefferson, Louisiana for further
proceedings.
SO ORDERED.
ENTERED:

May 15, 2017
/s/ Robert L. Miller, Jr.
Judge, United States District Court

9