Garcia et al v. Covidien Inc. et al

Filing 13

ORDER and REASONS denying without prejudice the 8 Motion to Remand to State Court and Alternative Motion for Stay as stated within document. Signed by Judge Kurt D. Engelhardt on 9/28/2011. (cab)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CLAUDIA GARCIA, ET AL.

CIVIL ACTION

VERSUS

NO. 10-4184

COVIDIEN, INC., ET AL.

SECTION "N" (4)

ORDER AND REASONS
Presently before the Court is Plaintiffs' "Motion to Remand to State Court and
Alternative Motion for Stay" (Rec. Doc. 8). As stated herein, IT IS ORDERED that both motions
are DENIED WITHOUT PREJUDICE.
BACKGROUND
Plaintiffs originally filed this action against Defendants Anchor Products Company,
Inc., Covidien, Inc., Ochsner Medical Center-Westbank, LLC, and Dr. Jennifer Lohmann-Bigelow
in the Twenty-Fourth Judicial District Court, Parish of Jefferson, State of Louisiana. Plaintiffs’
claims allegedly arise out of an October 19, 2009 laparoscopic surgery undergone by Claudia Garcia
at Ochsner Medical Center-Westbank, LLC. Specifically, Plaintiffs contend that Dr.
Lohmann-Bigelow negligently performed the surgery below the required standard of care by failing
to remove a five-inch piece of metal wire from Claudia Garcia’s body. Defendant Ochsner is
alleged to be the supplier of the allegedly defective tissue removal device utilized during Garcia's
surgery. Defendants Anchor and Covidien have been sued as the alleged manufacturer(s) of the
tissue removal device. Contemporaneously with commencing their state court action, Plaintiffs also

filed a "Petition to Form a Medical Review Panel," pursuant to Louisiana Revised Statute
40:1299.47(B), with the State of Louisiana’s Division of Administration against Defendants
Lohmann-Bigelow and Ochsner.
LAW AND ANALYSIS
Asserting jurisdiction under 28 U.S.C. §1332, Defendants Anchor Products
Company, Inc. and Covidien, Inc. removed this matter to the Eastern District of Louisiana on
November 4, 2010. The subject matter jurisdiction provided by §1332 is present only when
complete diversity of citizenship exists between the plaintiff(s) and all properly joined defendants,
and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332.
Seeking remand, Plaintiffs contend that complete diversity is absent because
Defendants Lohmann-Bigelow and Ochsner are Louisiana citizens. In opposition, Defendants
Anchor and Covidien contend that Louisiana law requires plaintiffs to exhaust an administrative
procedure (a medical review panel determination) before filing a medical malpractice lawsuit, and
because Plaintiffs here did not, Ochsner and Dr. Jennifer Lohmann-Bigelow are not properly joined
defendants.1 Accordingly, Defendants maintain that diversity is complete such that Plaintiffs'
request for remand should be denied.
“The burden of proving [improper] joinder is a heavy one” that is borne by the
removing party. Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir. 1983). Specifically, the
removing party must show either: “(1) actual fraud in the pleading of jurisdictional facts, or (2) the
inability of the plaintiff to establish a cause of action against the non-diverse party in state court.”

1

The Fifth Circuit now refers to “fraudulent joinder” as “improper joinder.” See, e.g.,
Melder v. Allstate Corp., 404 F.3d 328, 329 (5th Cir. 2005). Nevertheless, the term “fraudulent
joinder” is still frequently used.
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McKee v. Kan. City S. Ry. Co., 358 F.3d 329, 333 (5th Cir. 2004) (citation omitted). The Fifth
Circuit has historically used different phrases in describing the standard for improper (fraudulent)
joinder. Whether using the phrase “no possibility of recovery” or “no reasonable basis for the
plaintiff to establish liability,” however, the essential standard has been the same. See Travis v. Irby,
326 F.3d 644, 647 (5th Cir. 2003). In Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co.,
the Fifth Circuit explained and clarified the standard:
[T]he court determines whether the [plaintiff] has any possibility of
recovery against the party whose joinder is questioned. If there is a
arguably a reasonable basis for predicting that the state law might
impose liability on the facts involved, then there is no fraudulent
joinder. This possibility, however, must be reasonable, not merely
theoretical.
313 F.3d 305, 312 (5th Cir. 2002) (internal citation and quotations omitted). See also Smallwood v.
Illinois Cent. R. Co., 385 F.3d 568, 573 (5th Cir. 2004).
In Ohler v. Purdue Pharma, L.P., No. 01-3061, 2002 WL 88945 (E.D. Jan. 22, 2002)
La) (Engelhardt, J.) , the undersigned granted remand under similar circumstances. Considering the
Fifth Circuit's interim decisions in Holder v. Abbot Laboratories, Inc., 444 F.3d 383 (5th Cir. 2006),
and Melder v. Allstate Corp., 404 F.3d 328 (5th Cir. 2005), however, the undersigned joins other
district courts within the Fifth Circuit in now reaching a contrary result. See, e.g., Pardo v.
Medtronic, Inc., No. 10-1562, 2010 WL 4340821 (E.D. La. Oct. 26, 2010) (Lemelle, J.); Marcel
v. Rehabcare Group, Inc., 2008 WL 4657258 (E.D. La. Oct. 20, 2008) (Africk, J.); Valence v.
Jefferson Parish Hosp. Serv. No. 2, No. 08-1121, 2008 WL 1930524 (E.D. La. May 1, 2008)
(Lemmon, J); Jones v. Centocor, Inc., No. 07-5681, 2007 WL 4119054 (E.D. La. Nov. 15, 2007)
(Beer, J); Senia v. Pfizer, Inc., No. 06-1997, 2006 WL 1560747 (E.D. La. May 23, 2006) (Africk,
J.); see also Fontenot v. Johnson & Johnson, No. 10-162, 2010 WL 2541187 (W.D. La. Apr. 30,
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2010); Ellis v. Ethicon, Inc., No. 09-949, 2010 WL 1251640 (M.D. La. Feb. 19, 2010). Thus, for
the reasons aptly set forth in the Pardo, Marcel, Valence, Jones, Senia, Fontenot, and Ellis
decisions, and by Defendants Anchor and Covidien in their opposition memoranda (Rec. Docs. 9
and 10), Plaintiffs' present request for remand is denied.
As previously stated, Plaintiffs additionally ask that, if this matter is not remanded,
it instead be stayed pending a determination by the medical review panel. On the limited showing
made, the Court is not presently convinced that a stay is warranted and, thus, denies Plaintiffs'
alternative request. This ruling is without prejudice, however, to Plaintiffs' right to renew or re-urge
their motion to stay if additional, updated information is available and demonstrative of the propriety
of a stay under these circumstances. Cf. Marcel, 2008 WL 4657258, *4.
New Orleans, Louisiana, this 28th day of September 2011.

__________________________________
KURT D. ENGELHARDT
UNITED STATES DISTRICT JUDGE

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