Poole et al v. Hologic Inc

Filing 23

MEMORANDUM RULING denying 17 Motion to Remand or in the Alternative for Stay. Signed by Magistrate Judge Mark L Hornsby on 5/10/2010. (crt,Keifer, K)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA S H R E V E P O R T DIVISION

K E L L Y POOLE, ET AL V ER SU S H O L O G I C , INC.

C IV IL ACTION NO. 10-cv-0314 J U D G E HICKS M A G I S T R A T E JUDGE HORNSBY

M E M O R A N D U M RULING K e lly and Benjamin Poole ("Plaintiffs") allege that two physicians with Christus S c h u m p e rt Hospital performed on Ms. Poole an endometrial ablation surgery that involved th e use of a NovaSure machine manufactured by Hologic, Inc. Plaintiffs allege that the m a c h in e did not get a good seal, so the physicians telephoned a representative of Hologic for in s tru c tio n s . Ms. Poole's uterus was perforated during the procedure, which required an e m e rg e n c y hysterectomy on the young woman. Plaintiffs filed a petition in state court against Hologic. They alleged that it was liable b a se d on the Louisiana Product Liability Act and because its representative instructed the p h ysician s to perform the procedure in a negligent manner. P la in tif f s filed on the same day a medical malpractice complaint with the Louisiana C o m m is s io n e r of Administration. They named as defendants the two physicians who p e rf o rm e d the surgery, Christus Health System, and Hologic. A medical malpractice d e f en d a n t may have a lawsuit dismissed as premature if it is a qualified healthcare provider a n d the plaintiff has not first exhausted her remedies under the medical malpractice

a d m in is tra tiv e system. Plaintiffs report that all of the named defendants, except Hologic, w e re determined to be qualified healthcare providers under Louisiana law. Hologic removed this case based on diversity jurisdiction. Plaintiff has filed a Motion to Remand or Alternatively For Stay (Doc. 17). Plaintiffs argue that the court should find th e re is not diversity because they intend to add the non-diverse physicians and hospital as d e f en d a n ts once the administrative proceedings are completed. Plaintiffs acknowledge that th e undersigned has held in a very similar case that such a possible future destruction of d iv e rs ity is not a proper ground for a remand. McQuiston v. Boston Scientific Corp., 2008 W L 104210 (W.D. La. 2008). Plaintiffs urge the court to reconsider that holding, but the c o u rt remains of the opinion that the result in McQuiston is correct. P la in tif f s ask in the alternative that this case be stayed pending the conclusion of the m e d ic a l review panel, after which the physician and hospital defendants can be joined so that t h e case may proceed (after remand to state court) with all likely defendants present. D e f e n d a n ts respond that a stay would deny them the opportunity to be quickly dismissed f ro m this case based on their pending motion to dismiss that invokes a preemption defense. T h e briefing of that motion has been stayed pending the resolution of this motion. D e f en d a n ts also express concern that a stay would deny them the opportunity to conduct d is c o v e ry and explore the facts while they are fresh. Both parties have done a good job of briefing the issues and expressing the competing c o n c ern s . After due consideration, the court finds that a stay is not the best exercise of the

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c o u rt's discretion at this time. The case will be allowed to go forward so that Judge Hicks m a y address the pending motion to dismiss. If there are any claims remaining against H o lo g ic after a ruling on the motion, the undersigned will hold a scheduling conference to d isc u ss a schedule for discovery and related issues. The case may reach a point where, with a n eye toward the status of the medical review process, a stay becomes appropriate. At this p o in t, however, the case will be allowed to go forward. A c c o rd in g ly, the Motion to Remand or in the Alternative For Stay (Doc. 17) is d e n ie d . T H U S DONE AND SIGNED in Shreveport, Louisiana, this 10th day of May, 2010.

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