McFarland et al v. Smith & Nephew Inc et al

Filing 24

JUDGMENT granting 2 Motion to Remand; denying 2 Motion for Attorney Fees; denying 19 Motion for Hearing. Signed by Judge S Maurice Hicks on 6/11/2012. (crt,Kennedy, T)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
TOM McFARLAND, ET AL.

CIVIL ACTION NO. 11-1615

VERSUS

JUDGE S. MAURICE HICKS, JR.

SMITH & NEPHEW, INC., ET AL.

MAGISTRATE JUDGE HORNSBY
JUDGMENT

Before the Court is a Report and Recommendation (Record Document 17), wherein
the Magistrate Judge recommends that Plaintiffs’ Motion to Remand be granted and
Plaintiffs’ Motion for Attorney’s Fees be denied. Defendant Smith & Nephew, Inc. (“Smith
& Nephew”) has filed objections (Record Document 18) to the Report and
Recommendation and has also requested oral argument on such objections (Record
Document 19).
The undersigned has reviewed the record in this matter and concurs that the
appropriate improper joinder test in this matter is “whether the defendant has demonstrated
there is no reasonable basis for the district court to predict the plaintiff might be able to
recover against the in-state defendant.” Record Document 17 at 2. Here, the record easily
reveals that a Rule 12(b)(6) type analysis is proper in this matter as piercing the pleadings
would require the Court to make a joinder ruling that would essentially decide the case on
the merits under the guise of a jurisdictional analysis. Moreover, the undersigned finds
nothing in Smith & Nephew’s objections to alter his concurrence with Magistrate Judge
Hornsby’s finding that Smith & Nephew has not met its heavy burden of proving improper
joinder because it has not cited Louisiana precedent that would preclude a reasonable
basis to believe that Plaintiffs could state a claim against Michael Kremeier, the sales

representative. Finally, the Court notes that while it need not reach the issue of whether
the petition must be interpreted as pleading a Louisiana Products Liability Act claim against
Smith & Nephew under the Rule 12(b)(6) type analysis (Record Document 17 at 8), there
is case law recognizing that a defendant such as Smith & Nephew can wear two hats: one
as a manufacturer and one as an employer of a potentially negligent employee. See
Lavergne v. America’s Pizza Co., LLC, 2002-889 (La.App. 3 Cir. 2/5/03), 838 So.2d 845,
848.1
Accordingly, for the reasons assigned in the Report and Recommendation of the
Magistrate Judge previously filed herein, and having thoroughly reviewed the record,
including the written objections filed, and concurring with the findings of the Magistrate
Judge under the applicable law;
IT IS ORDERED that the Motion for Oral Argument (Record Document 19) be and
is hereby DENIED.
IT IS FURTHER ORDERED that the Motion to Remand (Record Document 2) is
GRANTED. This case is remanded to the 26th Judicial District Court, Webster Parish,
1

In Lavergne, the court reasoned:

While the LPLA’s exclusivity provision eliminates a general negligence cause
of action for damages caused by a product, it does not eliminate the liability
of a manufacturer for damages caused by the negligent use of its product by
one of its employees. Thus, America’s Pizza cannot escape its liability for the
negligence of its employee by claiming to be the manufacturer of the sauce,
even if it was, in fact, the manufacturer. This is a simple negligence claim, not
one under the LPLA. We agree with the trial court's disposition of this issue.
Lavergne, 838 So.2d at 848. In such a case, the defendant’s liability would flow from its
role as an employer of a negligent employee, not from its role as a manufacturer of a
defective product. See Bladen v. C.B. Fleet Holding Co., 487 F.Supp.2d 759, 771 (W.D.La.
2007).
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Louisiana, where it was pending as Case No. 71600. The request for attorney’s fees is
DENIED.
THUS DONE AND SIGNED, at Shreveport, Louisiana, this the 11th day of June,
2012.

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