OSSIM et al v. ANULEX TECHNOLOGIES, INC. et al

Filing 22

ORDER denying without prejudice 12 Motion to remand. Consistent with the Court's order of 3/12/2014, the Ossims shall have 30 days from the date of this Entry to file their response in opposition to Anulex's motion to dismiss. Signed by Judge Tanya Walton Pratt on 6/24/2014. (CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JOHN OSSIM and KRISTEN OSSIM,
Plaintiffs,
v.
ANULEX TECHNOLOGIES, INC.,
ABC INC., and JOHN DOE, M.D.,
Defendants.

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) Case No. 1:14-cv-00254-TWP-DKL
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ENTRY ON PLAINTIFFS’ MOTION TO REMAND,
OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS
This matter is before the Court on Plaintiffs’, John Ossim and Kristen Ossim (“the
Ossims”), Motion to Remand, or in the Alternative, Stay Proceedings Pending Issuance of the
Medical Review Panel Opinion (Filing No. 12). The Ossims originally filed this action in state
court and it was removed by Defendant Anulex Technologies, Inc. (“Anulex”) on the basis of
diversity jurisdiction. The action involves the alleged medical malpractice of the anonymous
hospital ABC Inc. and John Doe, M.D., as well as product liability against Anulex. For the
reasons set forth below, the Motion is DENIED.
I. BACKGROUND
The Ossims’ claims arise out of a surgery performed by the anonymous doctor at the
anonymous hospital. The surgery involved the use of Anulex’s product, the Xclose Tissue
Repair System. Indiana’s Medical Malpractice Act, I.C. § 34-18-8-4, provides that a court
action cannot be filed against qualified medical care providers in their own names until a
Medical Review Panel issues an opinion in accordance with the Indiana Medical Malpractice Act
(“the Act”). However, the Act permits filing a lawsuit under the condition that 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. Thus, simultaneously to filing the
action before the Medical Review Panel, the Ossims filed their lawsuit in state court. Thereafter,
Anulex filed a notice of removal (Filing No. 1). The identities of the anonymous doctor and
hospital are known to the Ossims, Anulex, and the Medical Review Panel, but have not been
made known to the Court.
II. DISCUSSION
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(b). This Court has previously found that when “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.” Miller v. Anonymous Corp. A., No. 1:12cv-562-TWP-DML, 2012 WL 3236304, at *2 (S.D. Ind. Aug. 7, 2012).

In contrast, in

Thornburg v. Stryker Corp., No. 1:05-CV-1378-RLY-TAB, 2006 WL 211952, at *2 (S.D. Ind.
Jan. 27, 2006), when an anonymous healthcare provider’s identity was not known, its citizenship
was disregarded because, “[t]o hold otherwise would place [the healthcare defendants’] right to
removal in peril because the completion date of the medical panel process is uncertain and
removal is constrained by a statute of limitations.”
Here, the actual identities of the anonymous hospital and doctor are not known or before
the Court, unlike in Miller where the anonymous hospital had participated in the action prior to
remand.

This action is akin to Thornburg, therefore the Court will follow that approach.

Remand is not appropriate here where the identities are not known on the record and the medical

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review panel outcome is uncertain. Therefore, the Court will DENY the Ossims’ motion to
remand.
In the alternative, the Ossims have requested the Court stay the proceedings until 90 days
following the date an opinion is issued by the Medical Review Panel, to avoid duplicate
discovery and concurrent cases in federal and state court. Relevant to this matter is that Anulex
has already filed a Motion to Dismiss, asserting that Ossims’ claims against it are preempted by
federal law and fail to state a claim under Indiana law (Filing No. 6). The pending motion is
potentially dispositive, therefore in this instance, a stay would not ensure the proper
administration of justice, and the Court will DENY the Ossims’ alternative motion to stay.
III. CONCLUSION
Accordingly, the Motion for Remand, or in the Alternative, Stay Proceedings Pending
Issuance of the Medical Review Panel Opinion (Filing No. 12) is DENIED, without prejudice.
Consistent with the Court’s order on March 12, 2014 (Filing No. 10), the Ossims shall have
thirty (30) days from the date of this Entry to file their response in opposition to Anulex’s
Motion to Dismiss.
SO ORDERED.
06/24/2014
Date: ______________

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

DISTRIBUTION:
Robert Thomas Dassow
HOVDE DASSOW & DEETS LLC
[e-mail]

Janelle P. Kilies
LEWIS WAGNER LLP
[e-mail]

Dina M. Cox
LEWIS & WAGNER
[e-mail]

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