Stevens et al v. Medtronic, Inc. et al
Filing
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MEMORANDUM OPINION AND ORDER granting 8 Motion to Remand. This case is remanded to the Jefferson Circuit Court. Signed by Chief Judge Joseph H. McKinley, Jr on 10/30/12. cc:counsel, JCC (JBM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:12CV-00322-JHM
CRYSTAL STEVENS and ERIC STEVENS
PLAINTIFF
v.
MEDTRONIC, INC., MEDTRONIC SOFAMOR
DANEK USA, INC., NORTON HOSPITALS, INC.
d/b/a NORTON HOSPITAL, and JOHN DOE #1, A
Sales Representative for Medtronic, Inc.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiffs’ motion to remand pursuant to 28 U.S.C. §
1447(c) [DN 8]. Fully briefed, the matter is ripe for decision.
I. BACKGROUND
On May 10, 2012, Plaintiffs, Crystal Stevens and Eric Stevens, filed this action in the
Jefferson Circuit Court. The Complaint asserts claims arising out of the posterior spinal surgery of
Crystal Stevens (hereinafter Stevens or “Plaintiff”) on September 13, 2006, at Norton Hospital in
Louisville, Kentucky. Stevens underwent a posterior lumbar interbody fusion of her L4-5 and L5-S1
during which she was implanted with Infuse, a bone graft device manufactured by the Medtronic
Defendants. Plaintiff alleges that she was not informed prior to surgery that Infuse would be used
in her spine in an “off-label or experimental manner” or “that there were any risks specific to the use
of Infuse in the lumbar spine.” (Complaint ¶ 38-41.) Plaintiff alleges that Infuse was approved by
the FDA in 2002 for only one specific operation which was an anterior single level fusion using an
LT Cage and it was not approved for the posterior-approach lumbar spine surgery performed on
Stevens. Plaintiff asserts claims of fraud, negligent misrepresentation, strict products liability
manufacturing and design defects, failure to warn, negligence, breach of implied warranty, breach
of express warranty, failure to obtain informed consent, and violation of the Kentucky Consumer
Protection Act against the Medtronic Defendants. Plaintiff also asserts claims against Defendant
Norton Hospital for negligence, failure to obtain informed consent, and negligent misrepresentation.
(Complaint ¶¶ 85, 93-97, 96-104.) Eric Stevens asserts a claim for loss of consortium against the
Defendants.
On June 8, 2012, Defendants removed this action from the Jefferson Circuit Court to this
Court on the theory that Plaintiffs had fraudulently joined Defendant Norton Hospital in an effort
to defeat federal jurisdiction. Plaintiffs now move the Court to remand the case to the Jefferson
Circuit Court.
II. STANDARD OF REVIEW
At issue in this motion is whether Norton Hospital was fraudulently joined. “‘Fraudulent
joinder occurs when the non-removing party joins a party against whom there is no colorable cause
of action.’” Walker v. Philip Morris USA, Inc., 443 Fed. Appx. 946, 952 (6th Cir. Oct. 31,
2011)(quoting Saginaw Housing Comm’n v. Bannum, Inc., 576 F.3d 620, 624 (6th Cir. 2009)).
“The non-moving party’s motive for joining the non-diverse party to the lawsuit is ‘immaterial to
our determination regarding fraudulent joinder.’” Id. (quoting Jerome–Duncan, Inc. v. Auto-By-Tel,
L.L.C., 176 F.3d 904, 907 (6th Cir. 1999)). The burden is on the Defendants to show fraudulent
joinder, and as with any dispute over removal, all doubts are resolved in favor of remand. Brierly
v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 534 (6th Cir. 1999); Alexander v. Electronic
Data Sys. Corp., 13 F.3d 940, 949 (6th Cir.1994).
“To prove fraudulent joinder, the removing party must present sufficient evidence that a
plaintiff could not have established a cause of action against non-diverse defendants under state
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law.” Coyne v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir.1999). “Therefore the question is
whether there is arguably a reasonable basis for predicting that the state law might impose liability
on the facts involved.” Probus v. Charter Communications, LLC, 234 Fed. Appx. 404, 407 (6th Cir.
2007)(internal citation omitted). See also Walker, 443 Fed. Appx. at 952. In making this
determination, the Sixth Circuit recognizes that the district court may “pierce the pleadings and
conduct a summary inquiry” to determine whether the a plaintiff’s complaint has misstated or
omitted “discrete and undisputed facts” that would determine the propriety of joinder. Walker, 443
Fed. Appx. at 953 (citation omitted). However, this standard of review is not as broad as suggested
by Defendants. In adopting the approach articulated by the Fifth Circuit, the Sixth Circuit in Walker
stated in relevant part:
[A]lthough the fraudulent joinder and Rule 12(b)(6) standards appear similar, the
scope of the inquiry is different. For Rule 12(b)(6) motions, a district court may only
consider the allegations in the complaint and any attachments. For fraudulent
joinder, the district court may . . . “pierce the pleadings” and consider summary
judgment-type evidence in the record, but must also take into account all
unchallenged factual allegations, including those alleged in the complaint, in the
light most favorable to the plaintiff. Any contested issues of fact and any ambiguities
of state law must be resolved in [the plaintiff’s] favor. The burden of persuasion on
those who claim fraudulent joinder is a heavy one.
Id. (quoting Travis v. Irby, 326 F.3d 644, 648–49 (5th Cir. 2003)). Therefore, “[w]hen deciding a
motion to remand, including fraudulent joinder allegations, we apply a test similar to, but more
lenient than, the analysis applicable to a Rule 12(b)(6) motion to dismiss.” Casias v. Wal-Mart
Stores, Inc., — F.3d —, 2012 WL 4096153, *3(6th Cir. September 19, 2012)(citing Walker, 443
Fed. Appx. at 952–54)).
III. DISCUSSION
Plaintiffs argue that the instant case should be remanded because the Medtronic Defendants
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have failed to prove the fraudulent joinder of Norton Hospital, the non-diverse forum-defendant.
The Medtronic Defendants, on the other hand, contend that Norton Hospital was fraudulently joined
because (1) “Plaintiffs’ utterly conclusory and boilerplate references to Norton Hospital in the
Complaint provide no basis for recovery against Norton Hospital” and (2) Plaintiffs’ claims against
Norton Hospital are barred by the applicable one-year Kentucky statute of limitations. (Medtronic
Defendants’ Response at 2.)
A. Colorable Claim for Negligence
A negligence action requires: “(1) a duty on the part of the defendant; (2) a breach of that
duty; and (3) consequent injury.” Mullins v. Commonwealth Life Ins. Co., 839 S.W.2d 245, 247
(Ky.1992). In a medical malpractice case, the burden of proof is upon the plaintiff to establish the
applicable standard of care and the breach thereof by medical or expert testimony. Green v.
Owensboro Medical Health Sys., Inc., 231 S.W.3d 781, 783 (Ky. Ct. App. 2007); Vandevelde v.
Poppens, 552 F. Supp. 2d 662, 668 (W.D. Ky. 2008). A hospital, such as Norton Hospital, has a
duty to use the same degree of care and skill as would be expected of a reasonably competent
hospital in similar circumstances. See, e.g., Miller ex rel. Monticello Baking Co. v. Marymount
Medical Center, 125 S.W.3d 274, 286 (Ky. 2004). Further, Kentucky recognizes that the failure to
obtain informed consent is an actionable form of negligence. Cordle v. Merck & Co., Inc., 405 F.
Supp. 2d 800, 804 (E.D. Ky. 2005)(citing Hawkins v. Rosenbloom, 17 S.W.3d 116, 118-19 (Ky. Ct.
App.1999)); see also Keel v. St. Elizabeth Medical Center, 842 S.W.2d 860, 862 (Ky. 1992); Rogers
v. T.J. Samson Community Hosp., 276 F.3d 228, 234 (6th Cir. 2002).
Plaintiffs’ Complaint states a colorable claim for negligence against Norton Hospital.
Plaintiff alleges that on September 13, 2006, she was admitted to Norton Hospital for spine surgery
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to address chronic lower back pain; that Norton Hospital “by and through its agents, servants and/or
employees, ostensible agents, servants and/or employees undertook to provide appropriate medical
care and treatment to Crystal Stevens and allowed Infuse to be used in its operating room;” and that
Norton Hospital “allowed John Doe #1 to be present during the surgery of Crystal Stevens, and
allowed John Doe #1 to provide advice, direction, and counsel to Crystal Stevens’ surgeon.”
(Complaint ¶¶ 38, 85.) Plaintiff maintains that prior to the surgery the Defendants failed to inform
her that Infuse would be used in the spine in an off-label or experimental manner and failed to
inform her that there were any risks specific to the use of Infuse in the lumbar spine. (Complaint
¶¶ 10, 38-41, 93, 94.) Plaintiff further alleges that before and after the 2006 surgery using Infuse,
Defendants knowingly concealed from Plaintiff the high risk of significant danger from using Infuse
off-label. (Id. at ¶ 11.) Plaintiff alleges that she would not have consented to the off-label use of the
product. (Id. at ¶ 46.) Finally, Plaintiff avers that she has suffered grievous personal injuries as a
direct and proximate result of Defendants’ misconduct. (Id. at ¶ 45.) While the Medtronic
Defendants classify these allegations as “conclusory and boilerplate” and as insufficient to establish
negligence under Kentucky law, the appropriate inquiry in this case is not whether Plaintiff will
ultimately lose on the merits; rather, it is simply whether Plaintiff has “at least a colorable cause of
action against [Norton Hospital] in the [Kentucky] state courts.” Probus, 234 Fed. Appx. at 408 (6th
Cir. 2007)(quoting Jerome-Duncan, Inc. v. Auto-By-Tel, LLC, 176 F.3d 904, 907 (6th Cir. 1999)).
See also Sprowls v. Oakwood Mobile Homes, Inc., 119 F. Supp. 2d 694, 697 (W.D. Ky. 2000).
Plaintiff’s allegations state a colorable cause of action in negligence against Norton Hospital and
provide a reasonable basis to predict that a Kentucky court might impose liability on Norton
Hospital.
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In as much as the Medtronic Defendants argue that Plaintiff’s reference to “Defendants” is
not sufficient to assert a claim against Norton Hospital, this argument has been rejected by Hart v.
Fifth Third Bank, Inc., 2009 WL 3171950, *1 (W.D. Ky. Sept. 28, 2009)(citing Brewer Machine &
Conveyor Mfg. Co., Inc. v. Old National Bank, 248 F.R.D. 478 (W.D. Ky. 2008)). The “use of the
phrase ‘Defendants’ naturally incorporate[s] all defendants into the allegations made by the
plaintiffs.” Hart, 2009 WL 3171950, *2. Since Plaintiff has identified Norton Hospital as one of
the Defendants involved in this case, all allegations against “Defendants” incorporate allegations
against Norton Hospital.
Additionally, in its Notice of Removal, the Medtronic Defendants also argued that the claims
against Norton Hospital are inconsistent with the allegations against the Medtronic Defendants and,
as a result, demonstrate that the non-diverse defendants have been fraudulent joined. Specifically,
the Medtronic Defendants note that the allegations against Norton Hospital “cannot be squared with
Plaintiffs’ own allegations throughout the Complaint that Medtronic actively concealed the risk of
off-label uses of Infuse from health care providers, including her own physicians.” (Notice of
Removal at 8-9.) This argument is inconsistent with the pleading rules. Both the Kentucky and
Federal Rules of Civil Procedure allow plaintiffs to enter alternative or inconsistent pleadings.
Cordle, 405 F. Supp. 2d at 805-806; Smith v. Smithkline Beecham Corp., 2010 WL 3432594, *2
(E.D. Ky. August 30, 2010). Thus, in the present case, any inconsistencies or alternative pleadings
against the Medtronic Defendants and Norton Hospital do not warrant a finding that Plaintiff failed
to allege a colorable claim against Norton Hospital in state court. Cordle, 405 F. Supp. 2d at 806.
Accordingly, the Court finds that the Medtronic Defendants have failed to meet “the heavy
burden of proving that there is not even arguably a reasonable basis for predicting Kentucky law
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might impose liability” on Norton Hospital. Jones Body Shop, Inc. v. PPG Industries, Inc., 2012
WL 1984292, *2 (E.D. Ky. June 4, 2012.)
B. Statute of Limitations
Under Kentucky law, an “action against a physician, surgeon, dentist, or hospital” for
“negligence or malpractice” must be “commenced within one (1) year after the cause of action
accrued.” KRS § 413.140(1)(e). “The cause of action shall be deemed to accrue ‘at the time the
injury is first discovered or in the exercise of reasonable care should have been discovered.’” Elam
v. Menzies, 594 F.3d 463, 466 (6th Cir. 2010)(citing KRS § 413.140(2)). In Kentucky, the
discovery rule can toll a statute of limitations.
The Kentucky Supreme Court has defined the discovery rule as follows: “‘A cause of action
will not accrue under the discovery rule until the plaintiff discovers or in the exercise of reasonable
diligence should have discovered not only that he has been injured but also that his injury may have
been caused by the defendant’s conduct.’” Faulkner v. ABB, Inc., 2011 WL 1225697, *2 (W.D. Ky.
2011)(quoting Louisville Trust Co. v. Johns–Manville Prods. Corp., 580 S.W.2d 497, 501 (Ky.1979)
(internal quotations omitted)). See also Elam, 594 F.3d at 466. The plaintiff must have a “basis for
a claim before the statute of limitations begins to run.” Elam, 594 F.3d at 466 (quoting Wiseman v.
Alliant Hospitals, Inc., 37 S.W.3d 709, 712 (Ky. 2000)). The “knowledge necessary to trigger the
statute is two-pronged; one must know: (1) he has been wronged; and (2) by whom the wrong has
been committed.” Id. “Although what the plaintiff actually knew often triggers discovery, the rule
can also be satisfied by what the plaintiff should have known.” Id. “In constructing knowledge,
however, 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
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the wrongful act of a physician.’” Id. (citing Wiseman, 37 S.W.3d at 712–13).
Both Kentucky law and federal procedural law used in diversity cases specify that “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.” Elam, 594 F.3d at 467. “Although the validity of the defense of statute of
limitations is determined by the court as a matter of law, where ‘there is a factual issue upon which
the application of the statute depends, it is proper to submit the question to the jury.’” Id. (quoting
Lynn Mining Co. v. Kelly, 394 S.W.2d 755, 759 (Ky. 1965); see generally 13 Ky. Prac. Tort Law
§ 10:39 (2009)). Stevens filed her lawsuit on May 10, 2012, so if she discovered or should have
discovered the injury before May 9, 2011, this action is barred.
The Medtronic Defendants maintain that Plaintiff’s claims against Norton Hospital are barred
by the one-year statute of limitations and, as a result, Norton Hospital was fraudulently joined.
Defendants argue that Plaintiff knew of her alleged injury well over a year before she filed suit on
May 10, 2012. As support, the Medtronic Defendants contend that Plaintiff knew she had spinal
surgery on September 13, 2006, and that her “post-operative period was marked by severe painful
and debilitating complications.” (Complaint ¶¶ 43, 45.) Further, the Medtronic Defendants argue
that Plaintiff admits that she discovered Norton Hospital’s culpability for her alleged injury through
“discussions with the physicians involved” in Stevens’s treatment. According to the Medtronic
Defendants, these discussions should have occurred within the applicable one-year limitation period.
Finally, the Medtronic Defendants contend that publically available documents discussing the
potential risks of Infuse were available long before Plaintiff alleges she discovered the injury. (See
July 1, 2008, FDA Online Public Health Notification regarding Recombinant Human Bone
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Morphogenetic Protein.) According to the Medtronic Defendants, extensive media coverage
developed in 2008 concerning the alleged inappropriate relationship between Medtronic and
physicians and hospitals and concerning the lawsuits regarding the off-label uses of Infuse.
(Medtronic Defendants’ Response, Exhibit B.)
While Defendants have raised a potentially valid statute of limitations defense, the Court
finds that questions of fact remain as to when Plaintiff discovered or should have discovered her
cause of action against Norton Hospital. Elam, 594 F.3d at 467. The fact that Stevens had spinal
surgery on September 13, 2006, and that her recovery was “marked by severe painful and
debilitating complications” does not, in itself, demonstrate that Stevens discovered or should have
discovered she had suffered an injury from the off-label use of Infuse. Similarly, the Medtronic
Defendants’ stated belief that Plaintiff should have discovered the reason for her injury through
discussions with her physicians prior to May 9, 2011, does not definitively demonstrate that Stevens
discovered or should have discovered the injury. “‘[O]ften the patient cannot know whether the
undesirable outcome is simply an unfortunate result of proficient medical care or whether it is the
consequence of substandard treatment.’” Elam, 594 F.3d at 467 (quoting Harrison v. Valentini, 184
S.W.3d 521, 524 (Ky. 2005)). Additionally, the Medtronic Defendants have presented no evidence
that Plaintiff was aware of the FDA Public Health Notification or the media coverage in question.
Significantly, Plaintiff states in her Complaint that she “did not know, and could not have known
by the exercise of reasonable diligence, until August, 2011 at the earliest that the off-label use of
Infuse caused abnormal ectopic bone growth in Crystal Stevens, which in turn caused her ongoing,
chronic pain and other complications.” (Complaint ¶ 10.) Based on Stevens’s lack of medical
knowledge and the conflicting evidence submitted by the parties, “a jury should decide when the
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statute begins to run in accordance with Kentucky law and the Seventh Amendment requiring a jury
trial in civil cases at law.” Elam, 594 F.3d at 471.
Resolving all contested issues of fact and ambiguities of state law in Plaintiffs’ favor, the
Court finds that the Medtronic Defendants have not established that Norton Hospital was
fraudulently joined and, therefore, complete diversity is lacking and remand is proper.
IV. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiffs’ motion to remand
[DN 8] is GRANTED. The case is remanded to the Jefferson Circuit Court.
cc: counsel of record
Jefferson Circuit Court
October 30, 2012
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