Robles Bush v. Thoratec Corporation

Filing 40

ORDER & REASONS granting 13 Motion to Dismiss Party. Party University Healthcare System, L.L.C. dismissed; denying 14 Motion to Remand to State Court. Signed by Judge Eldon E. Fallon on 10/24/11. (ala, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

DINA M. ROBLES BUSH
VERSUS
THORATEC CORPORATION, ET AL.

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CIVIL ACTION
NO. 11-1654
SECTION "L"(3)

ORDER & REASONS
The Court has pending before it Plaintiff Dina M. Robles Bush’s Motion to Remand
(Rec. Doc. 14) and Defendant University Healthcare System, LLC, doing business as Tulane
University Medical Center and Clinic (“Tulane”)’s Motion to Dismiss (Rec. Doc. 13). The
Court has reviewed the briefs and the applicable law and heard oral argument, and now issues
this Order and Reasons.
I.

BACKGROUND
This case arises out of the death of Pete Bush, a recipient of the Thoratec HeartMate II

Left Ventricular Assist System, a surgically-implanted heart pump manufactured by Defendant
Thoratec Corporation. According to the allegations in the petition, Mr. Bush had the LVAS
implanted on September 26, 2008, at the VA Hospital in Richmond, Virginia. On or about
October 24, 2008, the Food and Drug Administration issued a notice regarding the LVAS due to
issues with “wear and fatigue of the percutaneous lead connecting the [device] to the system
controller [which] may result in damage that could interrupt pump function, require re-operation
to replace the pump and potentially result in serious injury and death.”
Mr. Bush later returned to New Orleans with his wife, Plaintiff Linda Robles Bush. He
visited the Heart Failure Department at Tulane University Medical Center (“Tulane”) from early

2009 through May, 2010 to check the LVAS. Plaintiff alleges that Tulane did not inform Mr.
Bush of the notice issued regarding his implanted LVAS. On May 4, 2010, Mr. Bush’s LVAS
cased functioning, allegedly resulting in his cardiac arrest and death. Plaintiff alleges that
Tulane arranged for an autopsy and that the LVAS was removed and sent to Thoratec for
evaluation. Thoratec has not disclosed the findings of that evaluation, but Plaintiff alleges that
the evaluation demonstrates that the pump stopped due to the defect described in the FDA notice.
Plaintiff Linda Robles Bush, the decedent’s widow, filed suit in Civil District Court for
the Parish of Orleans against Defendants Thoratec, a California citizen, and University
Healthcare System, LLC, d/b/a Tulane University Medical Center and Clinic, a Louisiana
citizen. As to Thoratec, Plaintiff alleges that Thoratec misrepresented the safety of the LVAS
and knew of the risk of failure that caused the decedent’s death but failed to notify Plaintiff or
decedent of the dangerous defects. As to Tulane, Plaintiff alleges that Tulane failed to test the
LVAS to detect damage as set forth in the FDA recall notice and intentionally failed in a duty to
inform him of the known defect. As to both, Plaintiff alleges that Thoratec and Tulane
knowingly concealed defects from the FDA and concealed the results of an autopsy analysis
from Plaintiff.
Plaintiff filed suit on or about May 5, 2011. Thoratec and Tulane were served on May
16, 2011. On July 1, 2011, Tulane filed a dilatory exception of prematurity in Civil District
Court, contending that Plaintiff alleged medical malpractice claims but had not completed the
pre-lawsuit procedures required by the Louisiana Medical Malpractice Act. On July 14, 2011,
Thoratec removed to this Court. Although both Plaintiff and Tulane are alleged to be citizens of
Louisiana, Thoratec contends that Tulane’s dilatory exception revealed that Plaintiff stood no

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chance of recovery against Tulane and that Tulane had been improperly joined to defeat diversity
jurisdiction.
II.

PRESENT MOTIONS
The Court has pending before it two interrelated motions.
First, Plaintiff moves to remand on two grounds. She contends that Thoratec’s notice of

removal was untimely because Thoratec removed more than thirty days after being served with
the state court petition as required by 28 U.S.C. § 1446(b). Plaintiff also argues that she did not
improperly join Tulane, because she has stated claims that are not governed by the Louisiana
Medical Malpractice Act (“MMA”) and thus does not have to proceed through a required
Medical Review Panel before filing suit.
Second, Tulane moves to dismiss on the grounds that it was a qualified healthcare
provider under the MMA, that Plaintiff has failed to proceed through the necessary Medical
Review Panel process on her claims for malpractice, and that her suit is therefore premature.
This issue is the converse of Plaintiff’s second basis for remand.
III.

LAW AND ANALYSIS

A.

Plaintiff’s Motion to Remand (Timeliness Argument)
Plaintiff’s first argument in favor of remand is that Thoratec did not timely file its notice

of removal. Deadlines for removal are provided by 28 U.S.C. § 1446(b):
The notice of removal of a civil action or proceeding shall be filed within thirty
days after the receipt by the defendant, through service or otherwise, of a copy of
the initial pleading setting forth the claim for relief upon which such action or
proceeding is based, or within thirty days after the service of summons upon the
defendant if such initial pleading has then been filed in court and is not required
to be served on the defendant, whichever period is shorter.
If the case stated by the initial pleading is not removable, a notice of removal may
be filed within thirty days after receipt by the defendant, through service or
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otherwise, of a copy of an amended pleading, motion, order or other paper from
which it may first be ascertained that the case is one which is or has become
removable.
28 U.S.C. § 1446(b).
Thoratec was served with the petition on May 16, 2011 and filed its notice of removal on
July 14, 2011, more than thirty days after being served with the petition. Thus, if the first
paragraph of § 1446(b) provides the applicable thirty-day removal window, Thoratec’s removal
was untimely and the case must be remanded. If the first paragraph of § 1446(b) does not apply,
then removal was timely.1
The Fifth Circuit has opined on “the standard for determining whether a notice of
removal is timely field under the first paragraph of section 1446(b).” Bosky v. Kroger Texas, LP,
288 F.3d 208, 210 (5th Cir. 2002). In the context of removal based on diversity jurisdiction
where the amount in controversy is uncertain, “[t]he time limit in the first paragraph is triggered
‘only when that pleading affirmatively reveals on its face that the plaintiff is seeking damages in
excess of the minimum jurisdictional amount of the federal court.’” Id. (quoting Chapman v.
Powermatic, Inc., 969 F.2d 160, 163 (5th Cir. 1992)) (emphasis in original). In the Fifth Circuit,

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The Court does not have to address the second paragraph of § 1446(b) and whether
Tulane’s dilatory exception was an “other paper from which it may first be ascertained that the
case is one which is or has become removable.” If the thirty-day removal window began upon
service on May 16, 2011, it had already expired by July 14, 2011, and Tulane’s dilatory
exception would not give Thoratec a second chance for removal on the same grounds. See 14C
Charles Alan Wright, et al., Federal Practice & Procedure § 3731 (4th ed. 2009) (explaining that
the period for removal will not be “revived” “when any other change occurs or any other paper is
interposed that shows a ground for removal that previously was palpable but was not invoked by
the defendant”). But if the case stated by the petition was not removable, then the thirty-day
window provided by the first paragraph § 1446(b) never began to run and Thoratec’s removal
was timely regardless of whether Tulane’s dilatory exception started a thirty-day removal
window under the second paragraph of § 1446(b).
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“the plaintiff, if he wishes the thirty-day time period to run from the defendant’s receipt of the
initial pleading, [must] place in the initial pleading a specific allegation that damages are in
excess of the federal jurisdictional amount.” Chapman, 969 F.2d at 163. The Fifth Circuit has
specifically “rejected a due diligence requirement for determining whether a case is removable,”
at least with respect to the amount in controversy. See Bosky, 288 F.3d at 210. Other courts
have also held that diversity of citizenship must also be apparent from the facts contained in the
initial pleading to make the case initially removable so as to trigger the thirty-day removal
window under the first paragraph of § 1446(b). See Whitaker v. Am. Telecasting, Inc., 261 F.3d
196, 206 (2d Cir. 2001) (document which did not disclose addresses of all defendants made it
“impossible to assess whether there is complete diversity and, hence, a basis for removal.”).
In support of remand, Plaintiff argues that the case stated by the petition served on
Thoratec on May 16, 2011 was removable. She argues that all of the information supporting the
improper joinder argument was reasonably available to Thoratec within thirty days of service of
the petition. She suggests that Thoratec could have immediately found Tulane’s certificate that
it was a qualified healthcare provider on the Louisiana Patient’s Compensation Fund website.
Then, Thoratec “could have conducted legal research to determine whether the petition’s claims
against [Tulane] are covered under the MMA.” (Rec. Doc. 14-1). Thus, Plaintiff alleges that all
of the elements for the improper joinder argument were “publicly accessible and easy to obtain”
and Thoratec should have removed within thirty days of service of the petition.2

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Plaintiff relies on Skidmore v. Beech Aircraft Corp., 672 F. Supp. 923 (M.D. La. 1987),
for the proposition that a defendant has a duty to research to determine if a case is removable,
but Skidmore has very different facts and limited applicability to the present circumstances. In
Skidmore, a plaintiff in Louisiana state court filed suit against multiple defendants and then
settled with and released all but one diverse defendant; however, although the release named all
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In opposition, Thoratec argues that the petition “does not allege medical malpractice
within the meaning of the [MMA]” “because Plaintiff does not believe that [Tulane] committed
medical malpractice as evinced by her motion to remand.” (Rec. Doc. 28 at 3). Although
Thoratec also necessarily contends that Plaintiff is mistaken regarding the joinder question,
Thoratec nonetheless argues that “it would be highly inequitable if this Court were to remand
this case on the basis that a manufacturer defendant ... should somehow have had a different
understanding of Plaintiff’s claim against the medical provider defendant than Plaintiff does
herself.” Id. at 4. Thoratec does not cite any authority on the issue of timeliness.
The scope and requirements of the MMA will be discussed below. For the purposes of
the timeliness analysis, it is enough to note that a plaintiff under Louisiana law may not bring a
malpractice suit against qualified defendants without first having obtained an opinion from a
Medical Review Panel. Thus, the predicate for the improper joinder argument is both that the
Plaintiff state a malpractice claim governed by the MMA, and that the Plaintiff has failed to
satisfy the pre-suit requirements of the MMA by obtaining an opinion from a Medical Review
Panel. Even if Thoratec had some duty of reasonable diligence to conduct legal research
regarding whether the claims stated in the petition are or are not governed by the MMA, the
petition is silent regarding proceedings before a Medical Review Panel; thus, a critical element

the settling plaintiffs, the motion to dismiss the settling defendants omitted the name of one nondiverse settling defendant. See id. at 924. Thus, the suit inadvertently continued with
incomplete diversity because the non-diverse settling defendant was not dismissed. The nonsettling, diverse defendant later sought to remove to federal court, but the district court denied
the motion as untimely because the motion should have been filed within thirty days of the
incorrectly-filed motion to dismiss, which “sufficiently allowed defendants to ascertain that the
case at issue had become ripe for removal to federal court.” Id. at 926. Factually, Skidmore is
not on point, as Thoratec points out.
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of the improper joinder argument is simply not apparent from the face of the petition. The
petition does not “affirmatively reveal on its face” the necessary ingredients that would make the
case removable on the basis of diversity of citizenship and improper joinder. Therefore, service
of the petition did not begin the thirty-day removal window under the first paragraph of §
1446(b). Whether or not Tulane’s dilatory exception of prematurity started a thirty-day removal
window on July 1, 2011, Thoratec’s removal on July 14, 2011 was timely.
B.

Plaintiff’s Motion to Remand (Joinder) and Tulane’s Motion to Dismiss
Plaintiff also moves to remand for lack of subject matter jurisdiction. Thoratec is a

citizen of California, but Plaintiff and Tulane are citizens of Louisiana. Complete diversity of
citizenship is lacking unless some exception applies. In opposing remand, Tulane and Thoratec
argue that Plaintiff has failed to comply with the pre-suit Medical Review Panel procedures
required by the MMA, and therefore Tulane was improperly joined. Tulane has also filed its
own motion to dismiss for the same reason.
1)

Improper Joinder Standard

“The improper joinder doctrine constitutes a narrow exception to the rule of complete
diversity.” McDonal v. Abbott Labs., 408 F.3d 177, 183 (5th Cir. 2005). “To establish a claim
for improper joinder, the party seeking removal must demonstrate either (1) actual fraud in the
pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action
against the non-diverse party in state court.” Id. (quotation omitted). Actual fraud in the
pleading is not implicated here; with respect to the second prong, the court must examine
“whether the [removing] defendant has demonstrated that there is no possibility of recovery by
the plaintiff against an in-state defendant, which stated differently means that there is no

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reasonable basis for the district court to predict that the plaintiff might be able to recover against
an in-state defendant.” Id. (quotation omitted). The removing defendant has the burden, and it is
a heavy one. See id.
To determine if joinder was improper, the court “may conduct a Rule 12(b)(6)-type
analysis, looking initially at the allegations of the complaint to determine whether the complaint
states a claim under state law against the in-state defendant. “Ordinarily, if a plaintiff can
survive a Rule 12(b)(6)-type challenge, there is no improper joinder.” Guillory v. PPG Indus.,
Inc., 434 F.3d 303, 309 (5th Cir. 2005) (quotation omitted).
In its notice of removal, Thoratec argued that Tulane was improperly joined because
Plaintiff did not go through the requirements of the MMA before filing suit. Plaintiff moves to
remand on the basis that complete diversity is lacking because it states a claim against Tulane
not governed by the MMA. Tulane has filed a 12(b)(6) motion to dismiss on the basis that all of
Plaintiff’s claims are governed by the MMA, and the review panel procedure was not followed
so Plaintiff’s claims against Tulane are premature. Thus, Plaintiff’s motion to remand and
Tulane’s motion to dismiss are tested under the same 12(b)(6) standard and depend on resolving
whether Plaintiff’s claims governed by the MMA, such that Plaintiff must proceed through a
Medical Review Panel before filing suit.
2)

Louisiana Medical Malpractice Act

The MMA governs malpractice claims against “healthcare providers.” Tulane has
submitted a Certificate of Enrollment establishing that at all material times it was a qualified
healthcare provider under the provisions of the Act, and Plaintiff does not dispute that fact. The
MMA defines “malpractice” as:

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any unintentional tort or any breach of contract based on healthcare or
professional services rendered, or which should have been rendered, by a
healthcare provider, to a patient, including failure to render services timely in the
handling of a patient, including loading and unloading of a patient, and also
includes the legal responsibility of a healthcare provider arising from acts or
omissions ... from defects and/or failures of prosthetic devices implanted in or
used on or in the person of a patient.
La. Rev. Stat. 40:1299.41(A)(13). The act defines “health care” as:
any act or treatment performed or furnished, or which should have been
performed or furnished, by any health care provider for, to, or on behalf of a
patient during the patient’s medical care, treatment, or confinement....
Id. at 40:1299.41(A)(9). All malpractice claims against healthcare providers must be reviewed
by a Medical Review Panel, and a plaintiff cannot file suit until the “an opinion is rendered by
the panel.” La. Rev. Stat. § 40:1299.47(A), (B)(1)(a)(i). “In general, any conduct by a hospital
complained of by a patient is properly within the scope of the [MMA] if it can reasonably be said
that it comes within the definitions of the act, even though there are alternative theories of
liability.” Rogers v. Synthes, Ltd., 626 So. 2d 775, 777 (La. App. 2 1993).
Several issues regarding the scope of the act are relevant to resolving the pending
motions. First, intentional torts are not governed by the MMA. See La. Rev. Stat.
40:1299.41(A)(13). But merely labeling an act “intentional” in a pleading does not necessarily
skirt the MMA. “Use of the word ‘intent’ in the pleadings is not a talisman that can convert
unsubstantiated negligence allegations into colorable claims of true intentional torts for purposes
of fulfilling an intentional tort exception to controlling legislation.” Richardson v. Advanced
Cardiovascular Sys., Inc., 865 F. Supp. 1210, 1218-19 (E.D. La. 1994). Thus, courts should not
be “swayed by semantic manipulations” that attempt to dress up simple negligence claims with
labels of intentional torts, without factual allegations rising to the level of actual intentionally

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tortious acts. See id.
Second, “malpractice” is not defined by the MMA, but the term does not include every
claim against a healthcare provider. For example, purely ministerial actions unrelated to “health
care” are not malpractice and do not have to proceed through Medical Review Panels. In
Garnica v. LSU Medical Center, the plaintiff had a prosthesis implanted in her jaw in 1979 by
the LSU Dental School, and in 1990 the manufacturer notified oral surgeons to stop using the
implant. 744 So. 2d 156, 157 (La. App. 4 1999). The plaintiff later experienced problems with
the implant and had to have it removed. She filed suit against the Dental School, alleging that if
they had timely notified her of the product alert she would not have suffered damages. The
Dental School filed an exception of prematurity, contending that the plaintiff should have
proceeded through a medical review panel before filing suit. The lower court denied the
exception of prematurity and the Fourth Circuit Court of Appeal affirmed, holding that “the duty
to notify the patient is a ministerial or clerical function and does not require any specialized
training or knowledge” and “did not arise from the performance of health care.” See id. at 160.
Therefore, the alleged failure to notify was not malpractice governed by the MMA.
Likewise, in DeRouen v. Park Place Surgical Center, LLC , the plaintiff had surgery in
which a mesh patch was implanted. 37 So. 3d 525, 526 (La. App. 3 2010). A month after she
was discharged from the hospital, the FDA recalled the patch. Plaintiff filed suit, alleging that
the hospital received notice of the recall but failed to notify her which resulted in a delay and
caused injury. Plaintiff requested a medical review panel, but also filed suit before the panel
rendered an opinion. The hospital filed an exception of prematurity, which the trial court
granted. The Third Circuit Court of Appeal reversed, concluding that “while the insertion of the

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patch in the course of her surgery was related to the treatment that she received ... failure to
notify is not ‘treatment related’” but was only a “clerical or ministerial duty.” Id. at 530.
In Coleman v. Deno, the Louisiana Supreme Court promulgated a six-part test for
determining whether particular conduct is “malpractice” within the scope of the MMA. 813 So.
2d 303, 315 (La. 2002). Those factors are: (i) whether the particular wrong is “treatment
related” or caused by a dereliction of professional skill; (ii) whether the wrong requires expert
medical evidence to determine whether the appropriate standard of care was breached; (iii)
whether the pertinent act or omission involved assessment of the patient’s condition; (iv)
whether an incident occurred in the context of a physician-patient relationship, or was within the
scope of activities which a hospital is licensed to perform; (v) whether the injury would have
occurred if the patient had not sought treatment; and (vi) whether the tort alleged was
intentional. 813 So. 2d at 316-18.
Nonetheless, if the pleading states malpractice claims against a qualified healthcare
provider and the plaintiff has not completed the required Medical Review Panel process, courts
routinely find that the healthcare provider has been improperly joined and deny motions to
remand. See Garcia v. Covidien, Inc., No. 10-4184, 2011 WL 4550809 (E.D. La. Sept. 28,
2011); Pardo v. Medtronic, Inc., No. 10-1562, 2010 WL 4340821 (E.D. La. Oct. 26, 2010);
Jones v. Centocor, Inc., No. 07-5681, 2007 WL 4119054 (E.D. La. Nov. 15, 2007).
3)

Analysis

As explained above, Plaintiff’s motion to remand and Tulane’s motion to dismiss are
governed by the 12(b)(6) standard. Accordingly, the Court looks to the state-court petition, in
which Plaintiff made the following allegations regarding Tulane’s conduct:

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Mr. Bush and petitioner returned to Louisiana where Mr. Bush began followup,
examination and treatment at Tulane Medical Center regarding his failing
heart condition and the function of the LVAS
Beginning in early 2009 through May 2010, Mr. Bush visited the Tulane Heart
Failure Department to check his LVAS, and was advised that there was [sic] no
problems related thereto.
...
Despite its duties to Mr. Bush, Tulane failed to perform tests on the
percutaneous lead necessary to detect damage as set forth in the recall notice,
and intentionally refused to perform its duty to inform patients of known defects
in medical devices such as the LVAS and the need for re-operation and
replacement.
Additionally, both Thoratec and Tulane knowingly concealed known defects from
the FDA and the results of the analysis of the LVAS in Mr. Bush, which
constitutes fraudulent concealment.
(Pet., 1-2 at ¶¶ 5-6, 14-15) (emphasis added).
These allegations comfortably fall within the scope of a claim for medical malpractice
governed by the MMA. Plaintiff has alleged that the decedent “began followup, examination
and treatment” and that “Tulane failed to perform tests ... necessary to detect damage” to the
LVAS. An allegation that a healthcare provider failed to perform a necessary test during a
patient’s examination and treatment is an assertion of malpractice in the course of healthcare.
Thus, the MMA governs at least some of Plaintiff’s claims and those claims, at the very least,
must proceed through a Medical Review Panel. This is the case even if some of the claims
involve only failure to give notice which may not be malpractice. See Rogers v. Synthes, Ltd.,
626 So. 2d at 777. Although the record suggests Plaintiff has begun that process, no opinion has
been rendered. The claim is premature and Tulane was improperly joined in the initial petition
as to that claim.
Plaintiff argues that she states other claims not governed by the MMA, and that Tulane
was properly joined on those claims. For example, she argues that the MMA does not govern

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her claim that Tulane failed to notify the decedent of warnings regarding his LVAS device.
Relying on Garnica and DeRouen, she characterizes this as a ministerial failure to pass along the
warning, and not a healthcare or treatment decision. However, the Garnica and DeRouen cases
are distinguishable. In those cases, the plaintiffs had been discharged from care and there was no
ongoing relationship with the defendant or any medical treatment of the plaintiff after the
hospitals had notice of the product issues. Here, according to the allegations in the petition, the
decedent was being actively treated by Tulane at the same time Tulane allegedly had a
“ministerial” duty to notify of the product issue. Any “ministerial” duty to transmit a warning
thus arose in the context of ongoing healthcare, unlike in Garnica and DeRouen, and a breach of
that duty is necessarily intertwined with Plaintiff’s malpractice claim. Thus, it is appropriate to
require the matter to proceed before the Medical Review Panel in the first instance.
Plaintiff also argues, in the context of the Coleman factors, that she has alleged
intentional torts not governed by the MMA. The Richardson decision is directly on point;
although Plaintiff has used the words “intentionally” and “knowingly,” she has not asserted any
facts to back up those labels or to suggest that Tulane intended the decedent’s death. See
Richardson, 865 F. Supp. at 1218-19. To the extent she can support those allegations, they are
“fair grist for a medical review panel.” See id. at 1219.
The parties also frame the allegations in terms of the Coleman factors, although Tulane
argues that the Court need not apply the factors at all because the allegations unambiguously fall
within the definition of “malpractice” and “health care” in the Act. Even if it is necessary or
appropriate to conduct a Coleman analysis, those factors support the conclusion that the Plaintiff
has alleged claims for malpractice governed by the MMA. The state-court petition clearly

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alleges a failure to perform required tests during the course and scope of a provider-patient
relationship, which directly implicates the first, second, third, and fourth Coleman factors. And
with respect to the sixth factor, as noted above, Plaintiff has not adequately alleged any
intentional torts.
In short, the face of the petition alleges claims of malpractice against Tulane. Those
claims are premature because Plaintiff has not first complied with the applicable requirements of
the MMA. Plaintiff cannot state a claim against Tulane at this time, and Tulane was improperly
joined. Tulane’s citizenship is therefore ignored for the purposes of analyzing diversity of
citizenship. Diversity of citizenship is present and Plaintiff’s motion to remand is denied. For
the same reasons that Tulane was improperly joined, Tulane’s motion to dismiss is granted and
Plaintiff’s claims against Tulane are dismissed without prejudice as premature. Cf. May v.
Texaco, Inc., 73 F. App’x 78, 2003 WL 21756370, at *3 (5th Cir. June 19, 2003) (affirming
denial of remand on basis of improper joinder and grant of improperly joined defendant’s motion
to dismiss).
IV.

CONCLUSION
For the foregoing reasons, IT IS ORDERED that Plaintiff’s motion to remand (Rec. Doc.

14) is DENIED and Tulane’s motion to dismiss (Rec. Doc. 13) is GRANTED. Plaintiff’s claims
against Tulane are DISMISSED WITHOUT PREJUDICE.
New Orleans, Louisiana, this 24th day of October, 2011.

UNITED STATES DISTRICT JUDGE

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