Thompson v. Medtronic, Inc. et al
Filing
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MEMORANDUM OPINION AND ORDER granting 7 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-00456-JHM
RODNEY THOMPSON, II
PLAINTIFF
v.
MEDTRONIC, INC., MEDTRONIC SOFAMOR
DANEK USA, INC., NORTON HOSPITALS, INC.
d/b/a NORTON HOSPITAL, JOHN DOE #1, A
Sales Representative for Medtronic, Inc.,
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff’s motion to remand pursuant to 28 U.S.C. §
1447(c) [DN 7]. Fully briefed, the matter is ripe for decision.
I. BACKGROUND
On June 27, 2012, Plaintiff, Rodney Thompson, filed this action in the Jefferson Circuit
Court. The Complaint asserts claims arising out of the posterior spinal surgery of Thompson on
April 4, 2008, at Norton Hospital in Louisville, Kentucky. Thompson underwent a posterior lumbar
interbody fusion of his L5-L6 during which he was implanted with Infuse, a bone graft device
manufactured by the Medtronic Defendants. Plaintiff alleges that he was not informed prior to
surgery that Infuse would be used in his 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 ¶ 37-39.) 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 Thompson. 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 ¶¶ 83, 91-95, 96-102.)
On June 8, 2012, Defendants removed this action from the Jefferson Circuit Court to this
Court on the theory that Plaintiff had fraudulently joined Defendant Norton Hospital in an effort to
defeat federal jurisdiction. Plaintiff now moves 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
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
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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
Plaintiff argues that the instant case should be remanded because the Medtronic Defendants
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
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because (1) “Plaintiff’s utterly conclusory and boilerplate references to Norton Hospital in the
Complaint provide no basis for recovery against Norton Hospital” and (2) Plaintiff’s claims against
Norton Hospital is 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).
Plaintiff’s Complaint states a colorable claim for negligence against Norton Hospital.
Plaintiff alleges that on April 4, 2008, he was admitted to Norton Hospital for spine surgery 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
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care and treatment to Rodney Thompson, II 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 Rodney
Thompson, II, and allowed John Doe #1 to provide advice, direction, and counsel to Rodney
Thompson, II’s surgeon.” (Complaint ¶¶ 36, 83.) Plaintiff maintains that prior to the surgery the
Defendants failed to inform him that Infuse would be used in the spine in an off-label or
experimental manner and failed to inform him that there were any risks specific to the use of Infuse
in the lumbar spine. (Id. at ¶¶ 10, 37-39, 44, 92, 93.) Plaintiff further alleges that before and after
the 2008 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 he would not have
consented to the off-label use of the product. (Id. at ¶ 44.) Finally, Plaintiff avers that he has
suffered grievous personal injuries as a direct and proximate result of Defendants’ misconduct. (Id.
at ¶ 43.) 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.
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.
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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 Norton Hospital has been fraudulent joined. Specifically, the Medtronic
Defendants note that the allegations against Norton Hospital “cannot be squared with Plaintiff’s own
allegations throughout the Complaint that Medtronic actively concealed the risk of off-label uses
of Infuse from health care providers, including his own physicians.” (Notice of Removal at 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 the non-diverse defendants 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
might impose liability” on Norton Hospital. Jones Body Shop, Inc. v. PPG Industries, Inc., 2012
WL 1984292, *2 (E.D. Ky. June 4, 2012.)
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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
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
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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)). Thompson filed his lawsuit on June 27, 2012, so if he discovered or should have
discovered the injury before June 26, 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 his alleged injury well over a year before he filed suit on
June 27, 2012. As support, the Medtronic Defendants contend that Plaintiff knew he had spinal
surgery on April 4, 2008 and that his “post-operative period was marked by severe painful and
debilitating complications.” (Complaint ¶¶ 37, 41.) Further, the Medtronic Defendants argue that
Plaintiff admits that he discovered Norton Hospital’s culpability for his alleged injury through
“discussions with the physicians involved” in Thompson’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 he discovered the injury. (See
July 1, 2008, FDA Online Public Health Notification regarding Recombinant Human Bone
Morphogenetic Protein.) According to the Medtronic Defendants, extensive media coverage
developed in 2008 concerning the alleged inappropriate relationship between Medtronic and
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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 his
cause of action against Norton Hospital. Elam, 594 F.3d at 467. The fact that Thompson had spinal
surgery on April 4, 2008, and that his recovery was “marked by severe painful and debilitating
complications” does not, in itself, demonstrate that Thompson discovered or should have discovered
that he 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 his injury through discussions with
his physicians prior to June 26, 2011, does not definitively demonstrate that Thompson 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 his Complaint that he “did not know, and could not have known by the exercise
of reasonable diligence, until April, 2012 at the earliest that the off-label use of Infuse caused
abnormal ectopic bone growth in Rodney Thompson, II, which in turn caused his ongoing, chronic
pain and other complications.” (Complaint ¶ 10.) Based on Thompson’s lack of medical knowledge
and the conflicting evidence submitted by the parties, “a jury should decide when the 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.
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Resolving all contested issues of fact and ambiguities of state law in Plaintiff’s 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 Plaintiff’s motion to remand
[DN 7] 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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