Wolford et al v. Bayer Corporation et al

Filing 66

OPINION & ORDER: (1) This matter is REMANDED to the docket of the Pike County Circuit Court; (2) All remaining motions are DENIED AS MOOT; and (3) This case is STRICKEN from Court's active docket. Signed by Judge Karen K. Caldwell on 11/27/2017. (TDA) cc: COR & Pike Circuit Court w/ attested docket sheet

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT PIKEVILLE
SARANDA WOLFORD and
SHEILA TAYLOR,

CIVIL NO. 7:16-227-KKC-HAI

Plaintiffs,
V.

OPINION & ORDER

BAYER CORPORATION, et al.,
Defendants.

*** *** ***
This matter is before the Court on a motion to remand to Pike County Circuit Court filed
by plaintiffs (DE 22).

The plaintiffs have also requested a hearing with this Court in

connection with their motion to remand (DE 31). For the following reasons, plaintiffs’ motion
to remand (DE 22) is GRANTED and plaintiffs’ motion for hearing (DE 31) is DENIED.

I.

Background

Four plaintiffs originally filed this civil suit in Pike Circuit Court on September 22, 2016
(DE 1-1, at 7). Of the four original plaintiffs, only two remain: Saranda Wolford and Sheila
Taylor. See (DE 28,41). The plaintiffs have joined five defendants: Bayer Corporation, Bayer
Healthcare LLC, Bayer Essure, Inc., (f/k/a Conceptus, Inc.), and Bayer Healthcare
Pharmaceuticals, Inc. (collectively herein called the “Bayer defendants”), and Pikeville
Medical Center (“PMC”). The defendants filed a notice of removal to this Court on October
17, 2016 (DE 1). In that notice, the defendants argue that this Court has both federal
question and diversity jurisdiction (DE 1, at 2-3). On November 1, 2016, plaintiffs filed a

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motion to remand (DE 22), challenging this Court’s jurisdiction. The issues have been
sufficiently briefed by both parties and a hearing is not necessary.
This case involves the plaintiffs’ use of a permanent birth control device called “Essure.”
Plaintiff Wolford and Taylor both underwent surgery at PMC to have the Essure device
implanted, Wolford in 2014 and Taylor in 2013. Both plaintiffs allege that PMC failed to
properly inform them of the risks associated with the device, and failed to use reasonable
care in implanting the device (DE 1-1). Both plaintiffs allege that they suffered damages
following their Essure implantation, including device migration, pain, and subsequent
surgeries (DE 1-1). In September of 2014, Plaintiff Taylor learned that she was pregnant
and underwent a cesarean section in May of 2015. (DE 1-1, 93).
The plaintiffs contend that the device was originally created by Conceptus, Inc., a
company bought by Bayer in 2013 (DE 22-1, at 5). In 2002, Essure was granted pre-market
approval as a Class III medical device by the Food and Drug Administration, pursuant to the
Medical Device Amendments to the Federal Food, Drug, and Cosmetic Act (DE 8-6, at 2). The
plaintiffs do not attack the pre-market approval process. Instead, the plaintiffs allege the
Bayer defendants failed to conform to FDA requirements regarding post-market monitoring
of the device (DE 22-1, at 9). As a specific example of this conduct, plaintiffs allege that
Conceptus, subsequently purchased by Bayer, failed to report to the FDA adverse effects that
were discovered once Essure became widely used in the market, despite having an affirmative
duty to do so (DE 22-1, at 9). Plaintiffs allege that these actions constitute a violation of
various state tort laws and that, without the violations, the plaintiffs would never have used
the device (DE 1-1).

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II.

Analysis

Although several motions are pending in this matter, the Court must first determine
whether removal from Pike County Circuit Court was proper. Under 28 U.S.C. § 1441(a), the
defendants may remove this case to federal court if they could have originally brought it here.
On a motion to remand, the burden rests with the defendant to prove that this Court has
original jurisdiction. Eastman v. Marine Mech. Corp., 438 F.3d 544, 549 (6th Cir. 2006).
Original jurisdiction exists through either diversity of citizenship, see 28 U.S.C. §§ 1332(a)
and 1441(b), or federal question jurisdiction, see 28 U.S.C. §§ 1331 and 1441(a). When doubts
as to the appropriateness of removal exist, “the removal statute should be strictly construed
and all doubts resolved in favor of remand.” Eastman, 438 F.3d at 550. The Court considers
the parties’ arguments on jurisdiction below.

A. Federal Question Jurisdiction
Courts have consistently applied the “well-pleaded complaint” rule when reviewing
federal question jurisdiction on a motion to remand. “To determine whether the claim arises
under federal law, we examine the ‘well pleaded’ allegations of the complaint and ignore
potential defenses[.]” Mikuslki v. Centerior Energy Corp., 501 F.3d 555, 560 (2007) (quoting
Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003)). As a result of the rule, “federal
questions presented by defenses—or even by the plaintiff’s anticipatory rebuttal of an
expected defense—cannot support jurisdiction.” Dillon v. Medtronic, Inc., 992 F.Supp.2d 751,
755 (2014) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 10
(1983)).

“So, with only rare exception, a dispute over whether federal law trumps the

plaintiff’s state cause of action does not satisfy § 1331, since preemption is usually raised as
a defense.” Id. (citing Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987). “’[R]emoval and

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preemption are two distinct concepts,’ and the fact that plaintiffs’ claim might ultimately
prove to be preempted does not establish that it is removable to federal court.” Strong v.
Telectronics Pacing Systems, Inc., 78 F.3d 256, 261 (6th Cir. 1996) (quoting Warner v. Ford
Motor Co., 46 F.3d 531 (6th Cir. 1995).
In this case, plaintiffs do not rely on a federal cause of action within their complaint.
Instead, plaintiffs assert various state-law tort claims against the defendants. See (DE 1-1,
Pl. Complaint); see also (DE 22-1, Pl. Mem. in Support of Mtn. to Remand, at 15-16). As such,
the claims within the well-pleaded complaint do not directly arise under federal law or
jurisdiction.

The United States Court of Appeals for the Sixth Circuit, however,

acknowledges three exceptions to the well-pleaded complaint rule, by which the defendants
could still show that federal jurisdiction is proper. See Mikulski, 501 F.3d at 560. The first
two exceptions, artful-pleading and complete preemption, are inapplicable in this case. Only
the third exception, the substantial federal question doctrine, is at issue.
i. The doctrines of artful pleading and complete preemption
Under the artful pleading doctrine, a plaintiff may not “avoid removal jurisdiction by
artfully casting their essentially federal law claims as state-law claims.” Mikuslki, 501 F.3d
at 560. By its very nature, the artful pleading doctrine requires there first to be a federal
cause of action that the plaintiff is trying to avoid—one that might have been invoked absent
artful pleading. See id. at 561-563. In this case, Congress has provided no private right of
action under the FDCA, meaning the plaintiffs never had a federal claim to artfully plead
around. 21 U.S.C. § 337(a).
Related to the artful pleading doctrine, removal under complete preemption “is proper
‘when a federal statute wholly displaces the state-law cause of action[.]’” Id. (citing Federated
Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 397 (1981)). Thus far, complete preemption has

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been limited to three classes of cases by the Supreme Court: Section 301 of the Labor
Management Relations Act of 1947; the Employee Retirement Income Security Act of 1975;
and the National Bank Act. Mikulski, 501 F.3d at 563-564. Further, the Sixth Circuit has
specifically declined to extend the doctrine to the Medical Device Amendments of the FDCA.
See Strong, 78 F.3d at 259. As such, it is not applicable in this case.
ii. The substantial federal question doctrine
The remaining exception to the well-pleaded complaint rule is the substantial federal
question doctrine.

While a canvassing of the case law is necessary, the United States

Supreme Court distilled the essence of the doctrine in Grable & Sons Metal Products, Inc., v.
Darue Engineering & Manufacturing, 545 U.S. 308 (2005). In that case, a former landowner
brought a quiet title action under state law against a tax sale purchaser, alleging the Internal
Revenue Service had given him inadequate notice of sale. Id. After removal, the Court found
federal jurisdiction existed because the meaning of the federal statute requiring notice was
at issue; the Government had a strong interest in prompt and certain collection of delinquent
taxes; and there would be a microscopic effect on the federal-state division of labor if federal
jurisdiction was exercised. Grable, 545 U.S. at 314-315.
Reciting the Supreme Court’s decision in Grable, the Sixth Circuit has followed a threepart test when deciding if state-law claims implicate federal question jurisdiction:
(1) The state-law claim must necessarily raise a disputed federal issue; (2) the federal
interest in the issue must be substantial; and (3) the exercise of jurisdiction must not
disturb any congressionally approved balance of federal and state judicial responsibilities.
Mikuslki, 501 F.3d at 568. In another case, Gunn v. Miton, 568 U.S. 251, 258 (2013)
the Supreme Court provide more guidance as to the substantial federal question doctrine
describing the doctrine as applying only to a “special and small category of cases.” As to the
second element cited above, substantiality, the Supreme Court concluded that “it is not

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enough that the federal issue be significant to the particular parties,” but must be an
important issue “to the federal system as a whole.” Gunn, 568 U.S. at 260.
The Sixth Circuit has also weighed in on the element of substantiality, reciting four
considerations:
(1) Whether the case includes a federal agency, and particularly, whether that agency’s
compliance with the federal statute is in dispute; (2) whether the federal question is
important (i.e., not trivial); (3) whether a decision on the federal question will resolve the
case (i.e. the federal question is not merely incidental to the outcome); and (4) whether a
decision as to the federal question will control numerous other cases.
Mikuslki, 501 F.3d at 570.
Although prior to both Grable and Gunn, another Supreme Court case is helpful in our
analysis. In Merrell Dow Pharmaceuticals Inc., v. Thompson, 478 U.S. 804 (1986), the Court
considered common law tort claims against a drug manufacturer that had been removed to
federal court. As part of the common law claims, “[plaintiffs] alleged that the drug Bendectin
was ‘misbranded’ in violation of the [FDCA]…because its labeling did not provide adequate
warning that its use was potentially dangerous.” Id. at 805-806. The Merrell Dow Court
quoted the Sixth Circuit Court of Appeals’ language when deciding federal jurisdiction was
improper:
Plaintiffs’ causes of action referred to the FDCA merely as one available criterion for
determining whether Merrell Dow was negligent. Because the jury could find negligence
on the part of Merrell Dow without finding a violation of the FDCA, the plaintiffs’ causes
of action did not depend necessarily upon a question of federal law.
Id. at 807. Further, the Merrell Dow Court held that “a complaint alleging a violation of
a federal statute as an element of a state cause of action, when Congress has determined that
there should be no private, federal cause of action for the violation, does not state a claim
‘arising under the Constitution….’” Id. at 817 (quoting 28 U.S.C. § 1331). Several years later
in Grable, however, the Supreme Court cautioned that “Merrell Dow should be read in its
entirety as treating the absence of a federal private right of action as evidence relevant to,
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but not dispositive of, the ‘sensitive judgments about congressional intent’ that § 1331
requires.” Grable, 568 U.S. at 318. Merrell Dow may have been limited, but was not
overturned.
Finally, the Supreme Court has specifically stated that the MDA only preempts state
requirements that are “different from, or in addition to” requirements imposed by federal
law, leaving room for independent state causes of action. Riegel v. Medtronic, Inc., 552 U.S.
312, 330 (2008). “Thus, § 360k does not prevent a State from providing a damages remedy
for claims premised on a violation of FDA regulations; the state duties in such a case
‘parallel,’ rather than add to, federal requirements.” Id.
iii. Application in our case
In this case, the plaintiffs have styled each of their claims under state law, rather than
federal law. Plaintiffs’ styling of the case will likely require a reviewing court to apply and
analyze defendants’ duties under the MDA, but it is not clear that the analysis will raise
questions of federal law that meet the Grable test. In particular, the questions raised in this
case are not substantial, nor are they the type to cause disruptions in the balance of federal
and state judicial responsibility.
a. Substantiality
Grable requires that state law claims raise a “substantial” issue of federal law, and the
Sixth Circuit has recited factors to consider when weighing substantiality. Mikuslki, 501
F.3d at 568-570. In this case, those factors cut against application of federal question
jurisdiction.
First, this case does not include a federal agency, or call upon this Court to review an
agency’s compliance with the federal statute in dispute. Id. In this case, it is the conduct of
private companies, the Bayer defendants, which allegedly violated state tort laws.

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Second, the federal questions that may be raised in this litigation do not appear to be
important in the manner required by Supreme Court precedent. While they will be important
to these particular parties, Gunn requires the questions raised be important to the federal
judicial system as a whole. Gunn, 568 U.S. at 263. Here, the defendants state that the
“federal issues are hotly contested,” but cite the conduct of the parties and the sufficiency of
plaintiffs’ allegations as contested, rather than any meaningful interpretation of the MDA or
federal law. See e.g., (DE 27, 8) (pointing the Court to plaintiffs’ failure to rely on statements
made by the defendants, and plaintiffs’ failure to show that defects in manufacturing and
training caused their injuries).

There is little evidence that applying the federal

requirements in issue, particularly reporting requirements, to the parties’ conduct will
implicate broader or more substantial federal issues, or control numerous other cases going
forward. See Mikulski, 501 F.3d at 570-571. Further, it appears that at least some of the
reporting obligations may be fairly unique to these defendants. In a premarket approval
letter, some of the reporting obligations were described as “[i]n addition to the post approval
requirements,” and “agreed to” by the Bayer defendants and an agency of the FDA. (DE 1-2,
Premarket Approval Letter). But regardless, it is unclear that applying routine provisions
of the MDA to defendants’ conduct, without more, places this case in the “special and small
category of cases” that raise issues important to the federal system as a whole. Gunn, 568
U.S. at 258-260.
While federal preemption will be raised in this case, that alone does not raise a
substantial issue of federal law. “[State] courts are capable of deciding whether the plaintiffs’
claims against [the defendant] are preempted,” and it is not a basis for conferring federal
jurisdiction. In Re Darvocet, Darvon and Propoxyphene Products Liability Litigation, 889

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F.Supp.2d 931, 938 (E.D. Ky 2012); see also Strong, 78 F.3d at 261 (quoting Warner v. Ford
Motor Co., 46 F.3d 531 (6th Cir. 1995).
Finally, since plaintiffs have brought various state-law tort claims, each with various
elements and none of which are compliance with the MDA, it is unclear that the federal issues
in this case will be dispositive. Ultimately, it appears that any violation of federal law will
only be used as evidence to prove a broader violation of Kentucky state law. That federal
issues may be raised among state law claims is not enough to confer jurisdiction, since state
courts are presumptively competent to apply federal law. See Mikulski, 501 F.3d at 560.
b. Federal/State balance
The final element of Grable also fails here. Canvassing of the case law shows that
this is the type of case that may disturb the congressionally approved balance of federal and
state judicial responsibilities.

While Merrell Dow has been narrowed, the opinion still

compels us to consider whether Congress created a federal private right of action under the
statute in dispute, and whether Congress would have meant to welcome the particular statelaw tort case into federal court. See Grable, 545 U.S. at 318-319. In this case, Congress has
neither provided a private right of action, “nor completely precluded state jurisdiction over
claims alleging violations of the MDA.” Schilmiller, 44 F.Supp.3d at 731. Further, the
Supreme Court has made it clear that states have the power to provide damage actions
premised on violations of the FDCA, and that such actions merely parallel federal law.
Riegel, 552 U.S. at 330. Given such, this Court once again joins the many district courts
finding that the types of claims raised here do not pass the Grable test, and do not confer
federal question jurisdiction. See Johnson v. Bayer Corp., No. 4:16-CV-729 (CEJ), 2016 WL
3015187 (E.D. Mo. 2016); Dorman v. Bayer Corp., No. 4:16-CV-601 (HEA), 2016 WL 7033765
(E.D. Mo. 2016); Dillon v. Medtronic, Inc., 992 F.Supp.2d 751 (E.D. Ky. 2014); Schilmiller v.

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Medtronic, Inc., 44 F.Supp.3d 721 (W.D. Ky. 2014); McCann v. West Chester Hospital, LLC,
233 F.Supp.3d 607 (S.D. Ohio 2017); Lee v. Kirkpatrick, No. 1:16-CV-123 (GNS), 2016 WL
7197478 (W.D. Ky. 2016).

B. Diversity Jurisdiction
In opposition to the plaintiffs’ motion to remand, the defendants allege that this Court
has diversity jurisdiction. (DE 27 at 12-21). Since two of the original plaintiffs are no longer
parties to this suit—Ms. Atkinson and Ms. Johnson—the Court finds that the defendants’
arguments related to severing the claims of those two former parties have become moot.
Further, arguments that plaintiff Wolford’s claims should be transferred to the eastern
district of Missouri under the first to file rule are unavailing, as Wolford has previously and
voluntarily dismissed any claims without prejudice in that venue. (DE 30-23, at 2-3). Thus,
the only issues remaining for this Court are defendants’ arguments that PMC has been
fraudulently joined. Specifically, defendants allege that all claims against PMC by plaintiffs
Wolford and Taylor are foreclosed by the Kentucky statute of limitations, and PMC’s joinder
is an attempt to improperly destroy diversity jurisdiction.
At the outset, it should be noted that, while some circuits have allowed defendants to
establish fraudulent joinder by raising the affirmative defense of an expired statute of
limitations, the Sixth Circuit has yet to rule on the issue. See Williams v. Altman, 2013 U.S.
Dist. LEXIS 281 (E.D. Ky. 2013). However, since the defendants have not carried their
burden of establishing the affirmative defense, this Court need not resolve the issue of
whether it is even proper to consider an affirmative defense when reviewing a motion to
remand based upon fraudulent joinder. See e.g., Williams, 2013 U.S. Dist. LEXIS 281, at *13
n.2.

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i. Legal standards
Fraudulent joinder of a local party “will not defeat removal on diversity grounds.”
Saginaw Housing Com’n v. Bannum, Inc., 576 F.3d 620, 624 (6th Cir. 2009) (quoting Coyne v.
Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999)). Joinder of a party is fraudulent “when
the non-removing party joins a party against whom there is no colorable cause of action.” Id.
The burden of proof rests with the removing party, and requires showing that the nonremoving party could not have established a cause of action under state law against the nondiverse party that was joined. Coyne, 183 F.3d at 493. In reviewing such a claim, this Court
must resolve “all disputed questions of fact and ambiguities in the controlling state law in
favor of the non-removing party [and] [a]ll doubts as to the propriety of removal are resolved
in favor of remand.” Id. (quoting Alexander v. Electronic Data Sys. Corp., 13 F.3d 940, 949
(6th Cir. 1994)). A district court is generally limited to piercing the pleadings in search of
undisputed facts that negate the underlying claim and, even within this context of limited
piercing, must draw any contested issues of fact in the plaintiff’s favor. See Casias v. Walmart Stores, Inc., 695 F.3d at 428, 433 (6th Cir. 2012); see also Walker v. Philip Morris USA,
Inc., 443 Fed. Appx. 946, 954-956 (6th Cir. 2011).
While the Court is confined to the above mentioned review of defendants’ fraudulent
joinder claim, the statute of limitations is an affirmative defense that the defendants must
prove themselves. See Ky. R. Civ. P. 8.03; Lynn Mining Co. v. Kelly, 394 S.W.2d 755, 759
(Ky. 1965). Kentucky has a one-year statute of limitations for medical malpractice claims.
Ky. Rev. Stat. Ann. § 413.140(1)(e), (2). The claim begins to accrue at the time the injury is
first discovered, or when it should have been discovered in the exercise of reasonable care.
Id. To discover an injury, a plaintiff must know two things: (1) that she has been wronged;
and (2) the identity of the person who wronged her. Wiseman v. Alliant Hosps., Inc., 37

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S.W.3d 709, 712 (Ky. 2000). The Sixth Circuit has guided our analysis on the knowledge
necessary to trigger the Kentucky statute of limitations:
In constructing knowledge, [] a court must give special consideration to the patient’s
perspective because ‘[o]ne who possesses no medical knowledge should not be held
responsible for discovering an injury based on the wrongful act of a physician’…In
Kentucky, when there is a disputed issue of fact as to when a plaintiff ‘discovered or
should have discovered’ his cause of action, that factual issue should be resolved by the
jury in cases in which the plaintiff has asked for a jury….Federal law does not present a
conflict with Kentucky law.
Elam v. Menzies, 594 F.3d 463, 466-467 (6th Cir. 2010) (quoting Wiseman, 37 S.W.3d at
712-713). Since the plaintiffs filed this case on September 22, 2016, the defendants must
prove that, prior to September 22, 2015, plaintiffs Wolford and Taylor knew, or should have
known, that they were injured by PMC.
In Williams v. Altman, 2013 U.S. Dist. LEXIS 281 (E.D. Ky. 2013), this Court ruled on
arguments very similar to the ones brought by the defendants in this case. In Williams, the
Court reiterated that inferences arising from factual disputes about when a plaintiff knew or
should have known of an injury under the Kentucky statute of limitations must be drawn in
favor of the plaintiff at this stage. See id. at *15-17. In reviewing the defendants’ arguments
that the plaintiff should have known of her medical injury years before she filed her
complaint, this Court held that, “[defendants] may ultimately be correct, but that is not for
this Court to say at this juncture.” Id. Instead, the Court reasoned:
[W]hen [plaintiff’s] pain and suffering began is not dispositive. What matters is when she
should have realized that she had been wronged. Under Kentucky law that is a question
of fact for the jury. And the defendants offer no evidence that would prevent a reasonable
jury from accepting [plaintiff’s] claim that she had no reason to suspect medical
malpractice until her appointment on October 4, 2011…The defendants point to the fact
that she experienced pelvic pain before her October 2011 appointment, and that the FDA
issued Public Health Notifications. But those facts do not definitively establish that
[plaintiff] should have known she was the victim of malpractice. She has no medical
expertise. So a jury could find it reasonable for [plaintiff] not to realize that the symptoms
she experienced were the result of medical malpractice…Judging this evidence and
drawing factual inferences based on the weighing of that evidence is for a jury, not a
judge.
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Id. at 15-17 (citations omitted). Similarly in this case, the defendants have pointed only
to inferences arising from facts that are disputed by the plaintiffs. As such, the defendants
have not carried their burden of proving that the Kentucky statute of limitations prevents
the plaintiffs from having a colorable basis of recovery under Kentucky law.
i.

Application in our case
a. Plaintiff Wolford

It is undisputed that the Essure device was implanted by PMC in May of 2014, the device
was removed by PMC in March of 2015, and plaintiff Wolford filed this lawsuit in Pike Circuit
Court on September 22, 2016, which was ultimately removed to this Court. (DE 1-1, at 7).
Wolford brings various claims against PMC for their original selling of the Essure device,
alleged negligence in placing the device during implantation surgery, and alleged negligence
in failing to extract all pieces of the device upon removal. Wolford asserts that she first knew
removal of the device had failed when fragments of the device showed up on a transvaginal
ultrasound in 2016. (DE 22-1, at 32). Wolford argues that review of her medical records
following the ultrasound in 2016 led to her discovery that PMC had been negligent when
originally placing the device. (DE 22-1, at 32). In contrast, defendants argue that evidence
within Wolford’s medical records show that she knew, or should have known, of any injury
caused by PMC prior to the removal of the device in 2015. (DE 27, at 12-14). While
defendants may ultimately be correct, their arguments rely on inferences from disputed facts
in the record and, at this stage in the proceedings, all inferences must be drawn in favor of
plaintiffs. Casias, 695 F.3d at 433.
While the defendants are correct to point out that Wolford called PMC on September 16,
2014, complaining of pain and being afraid that it “was something to do with her Essure or
cyst,” those very same notes from the phone call show that Wolford was told by PMC that the
location of the pain (above the naval) was inconsistent with gynecological problems. (DE 2213

4, at 1019). Defendants’ attempts to show that non-gynecological problems were later ruled
out by other medical testing (DE 27, at 13-14) is unpersuasive. The medical tests cited by
the defendants are records of an emergency department visit in which an ultrasound was
taken of Wolford’s gallbladder. (DE 22-4, at 1043-1050). While the ultrasound showed no
abnormalities of the gallbladder, this is hardly proof that Wolford knew, or should have
known, of an injury inflicted by PMC relating to her Essure device. See e.g., Elam, 594 F.3d
at 466 (“[A] court must give special consideration to the patient’s perspective because one
who possesses no medical knowledge should not be held responsible for discovering an injury
based on the wrongful act of a physician”) (internal quotations omitted).
Defendants also point the Court to three Hysterosalpingogram (HSG) tests that
specifically reference migration of the Essure device, and the ultimate removal of the device,
since those events all occurred prior to September 22, 2015. (DE 27, at 13-14). Plaintiff
Wolford counters, however, arguing that she was never informed that her pain was related
to the misplacement of the device by PMC, and was only ever told that removal was necessary
because “the device had ‘failed,’” not because PMC had misplaced the device. (DE 22-1, at 2).
Disputed facts therefore exist as to what plaintiff Wolford was told by PMC, and what she
should have learned from her medical reports about PMC’s role in her injury. In reviewing
fraudulent joinder, disputes of fact are to be drawn in favor of the plaintiff and remand.
Coyne, 183 F.3d at 493.
Finally, defendants reference the early onset of Wolford’s pain and suffering, arguing that
this gave her “reason to know…that Dr. Hobb’s surgery implanting the device had been
deficient from the start.” (DE 27, at 13-14) (internal quotations omitted). First, such an
argument rests on an inferential leap, which must be drawn in favor of Wolford at this stage.
Second, “when [Wolford’s] pain and suffering began is not dispositive…[w]hat matters is

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when she should have realized that she had been wronged.” See Williams, 2013 U.S. Dist.
LEXIS 281, 15-17.
The defendants have not proven that the Kentucky statute of limitations prevents
Wolford from making out a colorable claim against PMC. Specifically, the defendants have
pointed to no facts preventing a reasonable jury from concluding that Wolford did not and
should not have known of PMC’s role in her injury—their alleged malpractice in placing the
device—before September 22, 2015. At best, the defense asks this Court to infer such
knowledge from other facts within the record, facts that are disputed by Wolford. While the
defendants may ultimately be correct as to knowledge, such disputes are best resolved by
juries, not a court reviewing fraudulent joinder. See Williams, 2013 U.S. Dist. LEXIS 281,
15-17; see also Elam, 594 F.3d at 466-467.
b. Plaintiff Taylor
1. Continuous course of treatment doctrine
Plaintiff Taylor alleges that PMC implanted the device in 2013, and she thereafter
continued to treat with PMC up to and including August 2, 2016, when she underwent
surgery for the removal of the Essure device. (DE 22-1). Taylor argues that the continuous
course of treatment doctrine tolls the Kentucky statute of limitations during the time she
continued to treat with PMC. (DE 22-1, at 33-36). If correct, the statute of limitations would
not have begun running until 2016, making her complaint filed on September 22, 2016,
timely. The doctrine’s effect on the statute of limitations for medical malpractice has been
explained by the Kentucky Supreme Court:
[W]here a patient, in good faith, on his physician’s advice and treatment or, knowing that
the physician has rendered poor treatment, but continues treatment in an effort to allow
the physician to correct any consequences of the poor treatment, the continuous course of
treatment doctrine operates to toll the statute of limitations until the treatment
terminates at which time running of the statute begins.
Harrison v. Valentini, 184 S.W.3d 521, 525 (Ky. 2005).
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Defendants cite Harrison as standing for the proposition that the continuous treatment
doctrine tolls the statute of limitations only when the continuing care is performed by the
same physician, and not simply the same medical center. (DE 27, at 15). Here, defendants
argue that the doctrine does not apply, because Taylor was treated originally by Dr. Hobbs,
and then by subsequent, and different, doctors working for PMC. Id. at 15-16.
This Court does not read Harrison as resolving whether the treating physician must be
the same throughout the course of treatment, or whether differing physicians connected
through the same medical center satisfy the doctrine. See generally Harrison, 184 S.W.3d at
525 (discussing limitations of the doctrine based on good faith of the patient). This Court
does not find, and the parties do not cite a Kentucky case that has directly answered this
question in the medical malpractice context. Within Harrison, the Kentucky Supreme Court
does cite to analogous authority allowing the doctrine to toll the statute of limitations for
legal malpractice where a client was represented by multiple members of the same law firm.
Harrison, 184 S.W.3d at 524 (citing Alagia, Day, Trautwein & Smith v. Broadbent, 882
S.W.2d 121, 123 (Ky. 1994)). But it is clear that the doctrine does have a limit, and does not
toll the statute of limitations when treatment takes place at two different facilities having
only a tenuous connection. See e.g., Mullins v. Graber, 2016 WL 4098760, 3 (Ky. Ct. App.
2016) (finding no application for the doctrine when patient received treatment at UK Medical
Center and Department of Corrections simply because both were state entities).
Due to the posture of this case, however, this Court must construe “ambiguities in the
controlling state law in favor of the non-removing party [and] [a]ll doubts as to the propriety
of removal are resolved in favor of remand.” Coyne, 183 F.3d at 493 (quoting Alexander, 13
F.3d at 949). As such, the fact that Kentucky courts have not specifically addressed the
connection required between initial and subsequent treating physicians for application of the

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continuous course of treatment doctrine, must be construed in favor of the plaintiff and
remand.
2. Disputed questions of fact exist
Even if the continuous course of treatment doctrine was found not to apply, defendants
have failed to prove that the statute of limitations prevents plaintiff Taylor from having a
colorable claim against PMC under Kentucky law. Similar to plaintiff Wolford, disputed
questions of fact exist and the inferences drawn from those facts by the defendants are best
resolved by a jury, and favor remand.
Defendants argue that Taylor knew by September 2014, that Dr. Hobbs had trouble
inserting the Essure device on the right side during implantation. (DE 27, at 15). For proof,
defendants cite plaintiffs’ complaint at paragraph 397, showing that Taylor “reported that
Dr. Hobbs had difficulty placing the Essure coil on the right side,” when presenting to the
emergency room with pain on June 28, 2016. (DE 27, at 15). However, knowledge that Dr.
Hobbs’ had difficulty placing the device is different from knowledge that the device was
negligently placed, or knowledge that Taylor was injured from placement. In any event, proof
that Taylor knew of the difficulty at an emergency room visit in 2016 does little to prove that
she knew of the difficulty prior to September 22, 2015—the date necessary to show a violation
of the Kentucky statute of limitations.
As with Wolford, defendants reference the early onset of Taylor’s pain and suffering,
arguing that this contributed to her knowledge that the Essure procedure had been defective.
(DE 27, at 15). First, such an argument rests on an inferential leap, which must be drawn
in favor of Taylor at this stage. Second, “when [Taylor’s] pain and suffering began is not
dispositive…[w]hat matters is when she should have realized that she had been wronged.”
See Williams, 2013 U.S. Dist. LEXIS 281, 15-17.

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Defendants point to a Hysterosalpingogram (HSG) test from 2013 showing displacement
of the Essure device on the right side as evidence that Taylor did know, and should have
known, of her injury from PMC. (DE 27, at 15; DE 30-1, at 1284). While the HSG test did
show that the “right stent appears to be displaced,” Taylor’s knowledge of the displacement
is heavily contested. Taylor argues that she was never told by any healthcare provider of the
displacement, and “PMC’s failure in this regard is exactly why she became pregnant.” (DE
30, at 2). Further, Taylor points to notes written by a PMC nurse detailing a conversation
between the two occurring on December 17, 2013, and allegedly showing Taylor’s and the
nurse’s lack of knowledge as to misplacement. The nurse wrote:
Patient states that she had ESSURE precedure [sic] June 26, 2013 and had a depo
injection at that time. Patient states that she has not had a period since then. Patient
had HSG on 10/1/13 that confirmed placement and no spill of contrast through tubes.
(DE 30-2, at 1286).
The exchange of information between Taylor and PMC regarding placement of the Essure
device, and the point at which Taylor learned that the device had been improperly placed, is
a question of fact in heavy dispute. In reviewing fraudulent joinder, disputes of fact are to
be drawn in favor of the plaintiff and remand. Coyne, 183 F.3d at 493.
Finally, defendants point out that Taylor learned she was pregnant in September of 2014.
(Pl. Compl. at ¶400). Defendants’ argue that Taylor thereby knew of PMC’s role in the Essure
procedure, and the failure of that procedure by 2014. (DE 27, at 15). But while this may
establish that Taylor knew there had been some type of failure with the device, it does not
establish that she knew it to be PMC’s placement of the device that harmed her. See
Wiseman, 37 S.W.3d at 712 (“To discover an injury, a plaintiff must know two things: (1)
that she has been wronged; and (2) the identity of the person who wronged her”). As did
Wolford, plaintiff Taylor vigorously denies having been told or otherwise knowing, prior to

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September 22, 2015, that it was misplacement of the device by PMC that led to her injuries.
(DE 30, at 1-7).
The defendants have not proven that the Kentucky statute of limitations prevents Taylor
from making out a colorable claim against PMC. Specifically, the defendants have pointed
to no facts preventing a reasonable jury from concluding that Taylor did not and should not
have known of PMC’s role in her injury—their alleged malpractice in placing the device—
before September 22, 2015. At best, the defense asks this Court to infer such knowledge from
other facts within the record, facts that are disputed by Taylor. While the defendants may
ultimately be correct as to knowledge, such disputes are best resolved by juries, not a court
reviewing fraudulent joinder. See Williams, 2013 U.S. Dist. LEXIS 281, 15-17; see also Elam,
594 F.3d at 466-467.
III.

Conclusion

The defendants have not carried their burden of showing that this Court has original
jurisdiction. Original jurisdiction exists through either diversity of citizenship, see 28 U.S.C.
§§ 1332(a) and 1441(b), or federal question jurisdiction, see 28 U.S.C. §§ 1331 and 1441(a).
Finding neither, this Court must remand.
Accordingly, it is hereby ORDERED as follows:
(1) This matter is REMANDED to the docket of the Pike County Circuit Court;
(2) All remaining motions are DENIED AS MOOT; and
(3) This case is STRICKEN from the Court’s active docket.
Dated November 27, 2017.

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