MILLER et al v. ANONYMOUS CORPORATION A

Filing 23

Order of Remand - Plaintiffs' Motion for Remand (Dkt. 14 ) is GRANTED. The court is without subject matter jurisdiction and therefore REMANDS this case to Marion Superior Court under cause no. 49D05-1203-CT-012241. Signed by Judge Tanya Walton Pratt on 8/7/2012.(JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ASHLEY MILLER and JUSTIN MILLER,
Parents of JONAH EDMUND MILLER,
Deceased minor,
Plaintiffs,
v.
ANONYMOUS CORPORATION A d/b/a
ANONYMOUS HOSPITAL B,
ANONYMOUS DOCTOR A, and
BOSTON SCIENTIFIC CORPORATION,

)
)
)
)
)
)
) CASE NO. 1:12-cv-562-TWP-DML
)
)
)
)
)
)

Defendants.

Order of Remand
This matter is before the court on the plaintiffs’ motion to remand. (Dkt. 14). The
plaintiffs’ suit asserts medical malpractice claims against a hospital and doctor and products
liability claims against Boston Scientific Corporation. The plaintiffs allege that their baby’s
death was caused by a defective feeding tube placed in the baby’s abdomen while under the care
and treatment of defendants Anonymous Hospital and Anonymous Doctor. The identities of the
hospital and doctor are not disclosed by the complaint because Indiana’s Medical Malpractice
Act prohibits the plaintiffs from doing so. Ind. Code § 34-18-18-7. The parties and this court
know, however, that Anonymous Hospital and Anonymous Doctor are Indiana citizens, and thus
share citizenship with the plaintiffs. Plaintiffs contend, therefore, that the court lacks diversity
jurisdiction and must remand to state court. Boston Scientific argues that until the names of
Anonymous Hospital and Anonymous Doctor are disclosed in a complaint, the court must
disregard their citizenship. In its view, because the plaintiffs and Boston Scientific are diverse in

citizenship and the citizenship of the other defendants should not be counted, the court is
obligated to exercise jurisdiction and may not remand.
As explained below, the court agrees with the plaintiffs.
I.

Procedural History
The plaintiffs filed their complaint in Marion Superior Court on March 26, 2012, and the

action was removed to this court on April 27, 2012. Under the Indiana Medical Malpractice Act,
a complaint of medical malpractice must first be evaluated in a quasi-administrative proceeding
in which a panel of medical experts determines whether the healthcare providers were negligent
and whether any negligence proximately caused the plaintiff’s injuries. Ind. Code § 34-18-8-4.
Generally, litigation may not be commenced until the panel issues its expert opinion. Id. In
some circumstances—as with this case in which medical malpractice claims against healthcare
providers covered by the Act are joined with products liability claims against medical device
manufacturers who do not fall within the Act—a complaint is filed in court before the expert
medical panel opines regarding the healthcare providers’ alleged negligence. The Act permits
such litigation, but the plaintiff’s “complaint filed in court may not contain any information that
would allow a third party to identify the [healthcare] defendant.” Ind. Code § 34-18-8-7. The
purpose for shielding the provider’s identity until the expert medical panel reaches its decision is
to protect the professional reputation of the provider from unfounded malpractice claims. Kho v.
Pennington, 875 N.E.2d 208, 214 (Ind. 2007).
As noted, the plaintiffs’ complaint complied with the Act by identifying the defendant
hospital and doctor as “Anonymous Hospital” and “Anonymous Doctor,” although all parties
know who they are, they have been served with process, and the court has personal jurisdiction
over them. The hospital has appeared in this case by counsel and filed a corporate disclosure

2

statement identifying itself as Indiana University Health, Inc. d/b/a Riley Hospital for Children
(“IU/Riley”). (Dkt. 11). The doctor has also appeared by counsel, and although the doctor
apparently still prefers his or her name not be used until the medical review panel acts, counsel
has disclosed that the doctor is an Indiana citizen. (Dkt. 14-3).
II.

Analysis
The removal statute directs that in determining whether an action can be removed on

diversity jurisdiction grounds, the citizenship of “defendants sued under fictitious names shall be
disregarded.” 28 U.S.C. § 1441. Based on this provision, Boston Scientific’s removal papers
disregarded the hospital’s and doctor’s citizenship. Whether or not removal itself was proper
(because the complaint did not disclose the identities of the healthcare defendants and Boston
Scientific may not have known their identities upon removal), the issue here is whether the court
can or should continue to exercise diversity jurisdiction when the court and the parties know the
identities and citizenship of the defendants and know that diversity in citizenship is (or, in
Boston Scientific’s view, will be) lacking. Judges in this district have resolved the issue by
determining that a healthcare provider defendant who was named “anonymous” in the complaint
only because of the Act but whose identity becomes known (and is indeed disclosed in public
filings with the court) is not “fictitious” and its citizenship cannot be disregarded. Caywood v.
Anonymous Hospital, Case No. 1:11-cv-1313-TWP-MJD, Dkt. 38 (S.D. Ind. March 29, 2012);
Ropp v. Stryker, Case No. 1:10-cv-0008-JMS-DML, Dkts. 41 and 54 (S.D. Ind. Nov. 23, 2010
and Jan. 26, 2011).
The court is not persuaded it should change course for this case and agrees with
Magistrate Judge Dinsmore’s analysis in Caywood. There is no principled basis for classifying
as fictitious the healthcare defendants in this case when they have been served with the

3

complaint, are represented by counsel, have declared their citizenship, and, in the case of the
hospital, identified itself by name. A “fictitious” defendant, for purposes of the removal statute,
or at least for purposes of determining whether the court can continue to exercise jurisdiction
once removed, is one whose identity is unknown and whose citizenship thus cannot be
determined. See Caywood, Case No. 1:12-cv-562, Dkt. 38, at p.4 (citing Commentary of 1988
and 1990 Revisions of Section 1441).
Because IU/Riley and “Anonymous” Doctor are Indiana citizens and share citizenship
with the plaintiffs, the court lacks subject matter jurisdiction. This case must be remanded to the
Marion Superior Court.
Conclusion
The plaintiffs’ motion (Dkt. 14) for remand is GRANTED. The court is without subject
matter jurisdiction and therefore REMANDS this case to Marion Superior Court under 28 U.S.C.
§ 1447(c).
So ORDERED.
08/07/2012
Date: __________________

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

Distribution to all counsel of record via CM/ECF

4