Moll v. Ochsner Health System et al

Filing 25

ORDER & REASONS that Defendant Ochsner Health System's 7 Motion to Dismiss is GRANTED and Ms. Moll's claims against it are DISMISSED. IT IS FURTHER ORDERED that Plaintiff Christie Moll's 15 Motion to Remand is DENIED. Signed by Judge Eldon E. Fallon on 3/31/14. (dno)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

CHRISTIE MOLL

CIVIL ACTION

VERSUS

NO. 13-6086

INTUITIVE SURGICAL, INC., ET AL.

SECTION "L" (2)

ORDER & REASONS
Before the Court is Defendant Ochsner Health System's motion to dismiss based on
prematurity (Rec. Doc. 7) and Plaintiff Christie Moll's motion to remand (Rec. Doc. 15). Having
considered the parties' memoranda and applicable law, and after hearing oral argument, the Court
now issues this order.
I.

BACKGROUND
This class action was brought by Ms. Moll, on behalf of herself and others similarly

situated, in order to recover for injuries sustained as the result of a robot-assisted laparoscopic
hysterectomy. Ms. Moll initially filed suit in the 24th Judicial District Court for Jefferson Parish
on September 11, 2013, against Defendants Ochsner and Intuitive Surgical, Inc. According to
Ms. Moll's petition, Ochsner purchased a da Vinci Surgical System from Intuitive, who designed,
patented, manufactured, sold, and distributed the robotic device. Ms. Moll states that the device
was used during her May 3, 2011, robot-assisted laparoscopic hysterectomy. Ms. Moll alleges
that she suffered a left ureter cautery burn that prevented a post-operative stent. As a result, Ms.
Moll had to undergo an ureteral re-implantation.1

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Ms. Moll's petition alleges that on May 8, 2013, Intuitive, manufacturer of the da Vinci Surgical System,
sent an "urgent medical device notification" to Ochsner "warning [it] of a possible risk of internal burns during
surger[ies]." (Rec. Doc. 1-1 at 3).

Ms. Moll asserts a class action under Articles 591 through 597 of the Louisiana Code of
Civil Procedure, and defines that class as including "[a]ll Louisiana patients of Ochsner Health
System who were injured (burned or lacerated) during . . . robotic surgery at the Ochsner Health
System [facility] located in Jefferson, Louisiana." (Rec. Doc. 1-1 at 3). Specifically, she alleges:
that Ochsner breached its duty to "furnish its hospital with reasonably adequate surgical
equipment," as required by Article 2315 of the Louisiana Civil Code, that Ochsner had
"custody[,] garde[,] and control" over the device and "knew or should have known of [its]
unreasonably dangerous nature," making it strictly liable for her injuries under Article 2317; and
that Intuitive both had and breached its "duty to exercise reasonable care when designing,
testing, manufacturing, marketing, advertising, promoting, distributing and/or selling [the device]
for [use in] hysterectom[ies]," as required by the Louisiana Products Liability Act. (Id. at 7-8).
On October 8, 2013, Intuitive removed to this Court, on the basis of diversity jurisdiction. (Rec.
Doc. 1).
II.

PRESENT MOTIONS
There are several interrelated motions currently before the Court.2 First, Ochsner moves

to dismiss on the basis that it is a qualified healthcare provider under the Louisiana Medical
Malpractice Act ("MMA") and that, because Ms. Moll has not proceeded through the necessary
medical review panel process, any claim against it is therefore premature. Second, Ms. Moll,
who is a Louisiana resident, moves to remand on the basis that the presence of Ochsner, which is
a Louisiana corporation, defeats diversity jurisdiction. She asserts that her claims against
Ochsner are not governed by the MMA and thus properly joined. The parties also dispute

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On October 15, 2013, Ochsner filed the present motion to dismiss based on prematurity. (Rec. Doc. 7),
and on November 7, 2013, Ms. Moll filed the present motion to remand (Rec. Doc. 15). Both motions were
submitted on February 4, 2014. (Rec. Doc. 23).

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whether Ms. Moll's claims are governed by the Class Action Fairness Act ("CAFA"). If they are,
only minimal—not complete—diversity is required.
III.

LAW & ANALYSIS
In its notice of removal, Intuitive asserts that both minimal diversity and complete

diversity exist. First, in a class action governed by CAFA, minimal diversity exists where "the
matter in controversy exceeds the sum or value of $5,000,000 . . . and any member of [the] class
. . . is a citizen of a State different from [that of] any defendant." 28 U.S.C. § 1332(d)(2). The
class must also include more than 100 individuals. Id. § 1332(d)(5). The removing party bears
the burden of establishing CAFA jurisdiction, and once established, the non-removing party
bears the burden of establishing any exception. Preston v. Tenet Healthsystem Mem'l Med. Ctr.,
Inc., 485 F.3d 793, 797 (5th Cir. 2007). Here, minimal diversity exists because Ms. Moll, a
Louisiana resident, is diverse from Intuitive, a Delaware corporation. Further, it is undisputed
that the class includes more than 100 individuals.
Ms. Moll, however, suggests that CAFA's local-controversy exception applies. Under
that exception, CAFA jurisdiction is precluded if (1) more than two-thirds of the class is from the
state in which the action was filed, (2) significant relief is sought from a non-diverse defendant
whose conduct forms a significant basis for the action, (3) the principal injuries were sustained in
the state in which the action was filed, and (4) a similar action has not been filed within the past
three years. 28 U.S.C. § 1332(d)(4). As this Court has previously noted, "[t]he language of
CAFA 'favors federal jurisdiction over class actions and CAFA's legislative history suggests that
Congress intended the local controversy exception to be a narrow one, with all doubts resolved in
favor of exercising jurisdiction over the case.'" Sherman v. Mantle Oil & Gas, LLC, No. 10–
2774, 2011 WL 130240, at *2 (E.D. La. Jan. 14, 2011) (quoting Evans v. Walter Indus., Inc., 449

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F.3d 1159, 1163 (11th Cir. 2006)). Here, the class is defined narrowly as including only
Louisianans. However, there does not appear to be any substantive reason for this distinction
except to escape jurisdiction. There is nothing about Ms. Moll's alleged injury that suggests it is
unique to individuals in Louisiana. In fact, the machine that caused her injury appears to have
been distributed and used throughout the United States. Further, the entity that created, designed,
manufactured, and distributed the machine that allegedly caused the injury is not a Louisiana
entity. Therefore, this is simply not the type of dispute for which CAFA's local-controversy
exception was created. To the extent that this matter has a provincial aspect, it is not sufficient to
overcome jurisdiction under CAFA.
Second, Intuitive argues that, notwithstanding the existence of minimal diversity and
resulting CAFA jurisdiction, the parties are also completely diverse, allowing the exercise of
ordinary diversity jurisdiction. In an action that is not governed by CAFA, complete diversity
exists where "the matter in controversy exceeds the sum or value of $75,000" and all adverse
parties are "citizens of different States." Id. § 1332(a). "But a defendant may [also] remove by
showing that the nondiverse party was joined improperly." Taylor v. Ochsner Clinic Found.,
Nos. 11–1926, 11–2221, 2011 WL 6140885, at *2 (E.D. La. Dec. 9, 2011) (Vance, C.J.) (citing
Smallwood v. Ill. Cent. R.R. Co., 352 F.3d 220, 222 (5th Cir. 2003)). Here, Ms. Moll, a Louisiana
resident, is diverse from Intuitive, a Delaware corporation, but not diverse from Ochsner, a
Louisiana corporation. Accordingly, complete diversity may only exist in the event that Ochsner
has been improperly joined.
"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

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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. (internal quotation marks omitted). Actual fraud
in the pleading is not implicated here. With respect to the inability to establish a cause of action,
a 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 reasonable basis for the district court to predict that the
plaintiff might be able to recover against an in-state defendant." Id. (internal quotation marks
omitted). The removing defendant has the heavy burden of establishing this. See id. To
determine if joinder was improper, a court uses a Rule 12(b)(6) analysis. "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) (internal quotation marks omitted).
Here, both the motion to dismiss and the motion to remand revolve around the issue of
whether Ochsner was improperly joined. If improperly joined, Ochsner's dismissal would create
complete diversity. If properly joined, Ochsner may not be dismissed and its presence will
destroy the existence of diversity, mandating remand (provided there is not another basis for
jurisdiction, such as CAFA).
Specifically, the issue here is whether the claims against Ochsner sound in medical
malpractice. If so, Ms. Moll's failure to proceed through a medical review panel process prior to
filing this action will mandate dismissal. In determining the applicability of the MMA to the
claim here, it is necessary to ascertain whether it was made against a healthcare provider, which
is a "corporation, facility, or institution licensed or certified by this state to provide health care or
professional services as a physician [or] hospital." Id. § 40:1299.41(a)(10). Ochsner has

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produced the requisite licensure or certification to establish its status as a healthcare provider.
(Rec. Docs. 7-4, 7-5). Ms. Moll does not appear to dispute this.
Next, it is necessary to consider Ochsner's alleged conduct. The MMA defines the term
"malpractice" as:
[A]ny unintentional tort or any breach of contract based on health
care or professional services rendered, or which should have been
rendered, by a health care provider, to a patient, . . . including
. . . all legal responsibility of a health care provider arising from
acts or omissions during the procurement of blood or blood
components, in the training or supervision of health care providers,
or from defects in blood, tissue, transplants, drugs, and medicines,
or from defects in 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). In turn, the term "healthcare" refers to "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. § 40:1299.41(a)(9). "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,
626 So.2d at 777. Further, "[m]alpractice includes a health care provider's strict liability for some
defective items used during the course of a patient's treatment; [that is], defective blood, tissues,
transplants, drugs, medicine, and prosthetic devices." Id. "When the tort alleged relates to an
injury caused by a m[al]function in a medical device instrumental in providing medical services,
the case for classifying the associated negligence as medical malpractice becomes stronger."
Taylor, 2011 WL 6140885, at *9.
Here, the MMA applies to the claims made by Ms. Moll against Ochsner. This is an
unintentional tort that is based on healthcare services rendered. It clearly involves the

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responsibility of a healthcare provider with regard to "defects in 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). It does
not matter that the device at issue is not the patient's prosthetic, but the doctor's.3
This conclusion is reinforced by the Louisiana Supreme Court's six-factor test for
determining whether particular conduct is considered malpractice within the scope of the MMA.
Coleman v. Deno, 813 So. 2d 303, 315-18 (La. 2002). Those factors are: (1) whether the
particular wrong is “treatment related” or caused by a dereliction of professional skill, (2)
whether the wrong requires expert medical evidence to determine whether the appropriate
standard of care was breached; (3) whether the pertinent act or omission involved assessment of
the patient's condition, (4) 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, (5)
whether the injury would have occurred if the patient had not sought treatment, and (6) whether
the tort alleged was intentional. Id.
First, the defect in the device is properly considered treatment related because, unlike a
hospital bed or other object the hospital owns, the device is only used in medical procedures.
Second, expert testimony is likely necessary to test the surgeon's decision as to whether and how
to use the device. Third, the decision as to whether and how to use the device necessarily
involved a decision regarding the patient's condition, including the condition before and during
the surgery itself. Fourth, the incident occurred during a surgical procedure, which is clearly
within the context of the physician-patient relationship and the scope of a hospital's activities.
Fifth, the injury would not have occurred if the patient had not sought treatment. Sixth, while

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Steadman's Medical Dictionary defines the term "surgical prosthesis" as "an appliance prepared as an aid
or as part of a surgical procedure." Prosthesis, Steadman's Med. Dict. (27th ed. 2000).

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there is some suggestion of an improper financial motive in Ochsner's decision to use the device,
this does not appear to be well-grounded, given the context of the entire petition.
In short, the face of the petition alleges claims of malpractice against Ochsner. Those
claims are premature because Ms. Moll has not first complied with the applicable requirements
of the MMA. Ms. Moll cannot state a claim against Ochsner at this time, and accordingly,
Ochsner was improperly joined. Therefore, Ochsner's citizenship is ignored and complete
diversity exists.4
IV.

CONCLUSION
For these reasons, IT IS ORDERED that Ochsner's motion to dismiss (Rec. Doc. 7) is

GRANTED and Ms. Moll's claims against it are DISMISSED.
IT IS FURTHER ORDERED that Ms. Moll's motion to remand (Rec. Doc. 15) is
DENIED.
New Orleans, Louisiana, this 31st day of March, 2014.

UNITED STATES DISTRICT JUDGE

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As noted above, minimal diversity under CAFA also exists.

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