Sullivan v. Calvert Memorial Hospital et al
Filing
43
MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 7/30/2015. (kw2s, Deputy Clerk)
J',
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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LEEANNE MARIE SULLIVAN
Plaintiff
v,
CALVERT MEMORIAL
HOSPITAL, et al.
Defendants
MEMORANDUM
Leeanne Marie Sullivan ("Sullivan")
Civil No, P./M 15- II 88
OPINION
has asserted medical negligence claims against
Jcffrey Welgoss, MD, Barbara Kurtz Estes. MD, Patricia Gauch, RN, Marie Davis, RN,
Alexandria
Mason,
ORT,
and Calvert
Memorial
Hospital
(collectively,
"the
Maryland
Healthcare Defendants") for injuries resulting from her surgery at Calvert Memorial Hospital.
She also brings products liability claims against Ethicon, Inc,-
the manufacturer of a medical
device thaI thc surgical leam implanted in her during the surgery-
and its parent company,
Johnson & Johnson (collectively, "the Elhieon Defendants").
Suit was originally filed in the Circuit Court of Calvert County. The Ethicon Defendants
t
removed the case to this Court on the basis of true diversity jurisdiction on April 29, 2015.
ECF
No. I. On the same day, the Ethicon Defendants filed a Molion to Sever the claims brought
against it from the claims brought against the Maryland Healthcare Defendants.
ECF NO.7.
Ian the face orthe Complllint filed in state court there was incomplete diversity, since Sullivan and some arthe
Marytand Heallhcare Defendants were all apparently citizens of the State of Maryland. However, where thejoining
of non diverse defendants is used as a tactic to defeat removal to federal court. and is not otherwise justifiable. the
party seeking to establish or defeat complete diversity may remove the case to federal court and ask the federal court
to determine the bona fides of the joinder. See, e.g., Slater v. Hoffman-LaRoche, 77 I F, Supp. 2d 524, 529 (E.D, Pa.
201 I).
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Sullivan opposes the Motion to Sever, and has moved to remand the case to state court. ECF No.
19.
For the following reasons, the Court GRANTS the Ethicon Defendants' Motion to Sever
and GRANTS-IN-PART
AND DENIES-IN-PART
Sullivan's Motion to Remand.
A.
Factual and Procedural
Background
According to the Complaint, on November 8, 2011, Sullivan underwent surgical
procedures at Calvert Memorial Hospital in Prince Frederick. During the course of the surgery,
Jeffrey Welgoss, MD and his surgical team, including Barbara Kurtz Estes, MD, Patricia Gauch,
RN, Marie Davis, RN, and Alexandria Mason, ORT, inserted a catheter into Sullivan's bladder.
The team also inserted a transvaginal sling (TVT) into her pelvic region. The TVT had been
manufactured by Ethicon, Inc. At the conclusion of the surgery, a member of the surgical team
was tasked with removing the catheter. Unbeknownst to Sullivan, however, that team member
failed to fully remove the catheter, and left a piece of it in her bladder. On or about the first day
after the surgery, Sullivan began experiencing extreme pain and discomfort.
On March 5, 2012,
Dr. Welgoss attempted, unsuccessfully, to remove the piece of catheter, but instead removed a
piece of Sullivan's urethra. The same day, Sullivan was admitted to INOVA Hospital in Fairfax,
Virginia, where the piece of catheter was removed from her bladder. She continued to
experience pain and discomfort after the removal. Sullivan alleges that at the same time she
suffered pain and discomfort as a result of the indwelling piece of catheter she also suffered as a
result of the Ethicon Defendants' TVT sling implanted in her. See Compl.
NO.2.
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12-22,
54, ECF
Sullivan brings four counts of negligence against the Maryland Healthcare Defendants.
Count I allcges medical negligence for failure to remove a foreign object (i.e. the piece of the
catheter) from her bladder before discharging her from the hospital. Count II alleges medical
negligence based on the doctrine of res ipsa !aquilar, positing that the fact that a portion of the
catheter remained in her bladder after the surgery speaks for itself that there was negligence.
Count III alleges negligence for failing to properly perform the surgery, causing Sullivan's preoperative conditions and complaints to remain unresolved. Count IV alleges medical negligence
against the surgical team for installing an unsafe, dangerous, and defective TVT sling product.
Count V alleges vicarious liability against Calvert Memorial Hospital based on the four counts of
negligence allegedly com milled by the surgical team.
Sullivan also asserts four counts against the Ethicon Defendants. Count VI alleges strict
products liability for failure to warn of the dangers of the TVT sling. Count VII alleges that the
Ethicon Defendants were negligent in failing to warn about the risks of the TVT sling when used
as designed. Count VIII alleges that the Ethicon Defcndants are liable for the negligent
provision of a dangerous instrument that was unreasonably dangerous when put to a reasonably
anticipated use without the user having knowledge of its characteristics.
Count IX alleges that
the Ethicon Defendants fraudulently concealed from Sullivan and the general medical
community dangers known to them about the sling.
It is undisputed that Sullivan is a citizen of Maryland and the Ethicon Defendants are not
citizens of Maryland. See Compl. ~~ 1,9-10, ECF NO.2. It is further undisputed that at least
some, ifnot all, of the Maryland Healthcare Defendants are citizens of Maryland. See id.
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2-7.
On April 29, 2015, the Ethicon Defendants removed the case to this Court on the basis of
true diversity jurisdiction, ECF No. I, simultaneously moving to sever the claims against the
nondiverse defendants, the Maryland Healthcare Defendants, ECF NO.7.
The Ethicon Defendants argue that Sullivan's claims against the Maryland Health
Defendants should be severed from the claims against them either (I) because the Maryland
Healthcare Defendants are not necessary parties to the claims against the Ethicon Defendants, or
(2) because the claims against the Maryland Healthcare Defendants have been fraudulently
misjoined.
Sullivan opposes the Motion to Sever, and has moved to remand all claims to state court.
ECF No. 19. She argues that the Court does not have the discretion to drop the Maryland
I-Iealthcare Defendants from this action in order to achieve complete diversity because the
Maryland Healthcare Defendants are indeed necessary and proper parties to the claims against
the Ethicon Defendants. Additionally, Sullivan contends, there has been no fraudulent
misjoinder, since her claims against all of the Defendants stem from the same transaction or
occurrence, and questions of law and fact common to all defendants will arise during the course
of litigation.
Calvert Memorial Hospital has filed a Motion to Sever and Remand, ECF No. 22,
adopting the arguments of the Ethicon Defendants.
B.
The Court has discretion, under Federal Rule of Civil Procedure 21, to drop nondivcrse
parties to achieve complete diversity.
1998).
See Koehler v. Dodwell, 152 F.3d 304, 308 (4th Cir.
That discretion is guided by consideration of whether dismissal of the nondiverse party
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or parties will prejudice any of the parties remaining in the case, and whether the presence of the
nondiverse party provides a tactical advantage for one party. Newman-Green,
Inc. v. A/jimzo-
Larrain, 490 U.S. 826, 838 (1989).
The United States Court of Appeals for the Sixth Circuit has further undertaken this
prejudice analysis by determining whether the party sought to be severed is a necessary and
indispensable party under Federal Rule of Civil Procedure 19. See Safeco Ins. Co. of Am. v. Cily
of While House, Tenn., 36 F.3d 540, 545-46 (6th Cir. 1994).
If the party is found to be
necessary, then diversity remains incomplete and the case must be remanded to state court.
A party is deemed necessary if "the court cannot accord complete relief among existing
parties; or that person claims an interest relating to the subject of the action and is so situated that
disposing of the action in the person's absence may: (i) as a practical matter impair or impede the
person's ability to protect the interest; or (ii) leave an existing party subject to a substantial risk
of incurring double, multiple, or otherwise inconsistent obligations because of the interest." Fed.
R. Civ. P. 19(a)(l). A necessary party is indispensable if the action cannot proceed without that
party "in equity and good conscience."
See Fed. R. Civ. P. 19(b). The general consensus is that
parties may be severed under Rule 21 even when they have been properly joined, so long as the
party is not necessary and indispensable under Rule 19. See Safeco, 36 F.3d at 546.
c.
Sullivan argues that the Maryland Healthcare Defendants arc necessary parties to her
claims against the Ethicon Defendants because if the medical negligence and products liability
claims were tried separately, she contends, each set of defendants could usc the "empty chair"
defense and blame Sullivan's injuries on the actions of the missing group of defendants.
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The Court finds, however, as regards Counts I and II against the Maryland Healtheare
Defendants, that those defendants are not necessary parties to the litigation against the Ethieon
Defendants.
negligence vel
surgery.
sling.
Counts I and II against the Maryland Healthcare
f1(JI1
Defendants
relate to the
with respect to leaving a portion of the catheter in Sullivan's bladder after her
The counts against the Ethicon Defendants relate only to the manufacture of the TVT
Sullivan has not plausibly alleged in her Complaint any way in which the Ethicon
Defendants' TVT sling is casually connected to the injury caused by the catheter.
Still, Sullivan insists that two of her medical negligence counts against the Maryland
Healthcare Defendants, Counts 1II and IV2, do relate to the Ethicon Defendants'
TVT sling
device. She suggests that Count III, which alleges a negligence claim against the surgical team
for failing to properly perf01ll1 her surgery and remedy her conditions, includes the surgical
team's installation of the Ethicon Defendants' TVT sling. Count IV, she says, alleges medical
negligence against the surgical team for installing the Ethicon Defendants'
dangerous, and defective TVT sling.
allegedly unsafe,
Again, if Counts 1II and IV and the products liability
claims are not joined, Sullivan continues, each set of defendants could use the "empty chair"
defense and blame Sullivan's injuries on the missing group of defendants.
The Court similarly concludes that Counts 1II and IV that Sullivan posits against the
Maryland I-Iealthcare Defendants do not make them necessary parties to any claims she may
The Ethicon Defendants submit that Counts III and IV are not cognizable medical malpractice claims
against the Maryland Healthcarc Defendants because neither the certificate of merit nor the accompanying doctor
report take issue with the surgical team's implantation of the TVT sling. As a result. the Ethicon defendants say,
Counts III and IV are not properly before the Court. See Md. Code Ann. ~ 3-2A-04(b)(I)(i) ("[AJ claim or action
filed afier July 1, 1986, shall be dismissed, without prejudice, if the claimant or plaintiff fails to file a certificate of a
qualified expert with the Director attesting to departure from standards of carc, and that the departure from standards
of care is the proximate cause of the alleged injury, within 90 days from the date of the eomplaint."). Since Counts
!II and IV are not before the Court, the Ethicon Defendants argue, they cannot be the basis for establishing the
Maryland IIcalthcare Defendants as necessary and indispensable parties.
The Court need not decide this issue, however, since it finds that even assuming that Counts !II and IV are
properly before it, the Maryland Healthcare Defendants would not be necessary parties. On remand, the state court
is free to detennine whether Counts III and IV are or arc not in compliance with Maryland law.
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have against the Ethicon Defendants.
While Counts III and IV against the Maryland Healthcare
Defendants may involve the same physical object that is the source of the products liability
claims against the Ethicon Defendants, the medical negligence claims against the Maryland
Healthcare Defendants involve legal standards and factual inquiries distinctly different from the
products liability claims against the Ethicon Defendants.
Additionally,
resolution
of the Sullivan's
claim against the Maryland
I-Iealthcare
Defendants, would not necessarily resolve her claims against the Ethicon Defendants.
In just
such a circumstance, district courts have held that a health care provider is not a necessary party
to the plaintiffs
claims against the manufacturer of the medical device used by the healthcare
provider, when the resolution of thc plaintiffs
necessarily resolve the plaintiffs
claim against the healthcare provider would not
claims against the product manufacturer.
See, e.g., Joseph v.
Baxter Int'l Inc., 614 F. Supp. 2d 868, 872-73 (N.D. Ohio 2009); Mayfield v. London Women's
Care, PLLC, No. 15-19-DLB, 2015 WL 3440492 (E.D. Ky. May 28, 2015).
In Joseph, for example, the plaintiff sued nondiverse
negligent prescription ofI-Ieparin.
healthcare providers
for the
614 F. Supp. 2d at 871. The claim focused on the conduct of
the healthcare providers when they prescribed the drug. Id.
liability claims against the diverse manufacturer
The plaintiff also joilled products
of I-Ierapin, which focused on the design,
manufacture, labeling, and recall of the product. Id. The Ohio district court granted severance of
the medical negligence claims against the nondiverse medical providers
from the products
liability claims against the diverse manufacturer, finding that the health care providers were not
necessary parties because the resolution of the claims against them would not necessarily resolve
the plaintiffs
claims.
claims against the drug maker, given the different legal and factual issues of the
Id. at 872. The claims against the healthcare providers centered on the conduct of thc
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health care providers in prescribing the drug: whether they had proper procedures in place to
prevent improper use of the drug, and/or whether they administered the drug to the patient even
though the patient's chart noted that she was allergic to it. ld. This inquiry was differentiated
from the inquiry on which the product liability claims against the drug manufacturer turned; i.e.,
the company's conduct in manufacturing and marketing the drug. ld. Resolution of the issues
regarding
the
medical
substandard conductliability claims hinged-
negligence
claims-
e.g.,
the healthcare
providers'
supposedly
would not necessarily have resolved the issues on which the products
i.e., the manufacturer's procedures in the production and distribution of
the drug. ld. Accordingly, the Ohio court held that the healthcare providers were not necessary
parties to the products liability suit against the diverse manufacturer.
ld. That said, the eourt
severed them to establish complete diversity, pursuant to Rule 21. ld. at 874.
The same situation obtains here. The Maryland Healthcare Defendants are not necessary
parties to Sullivan's claims against the Ethicon Defendants because the resolution of her claims
against the Maryland Healthcare Defendants would not necessarily resolve her claims against the
Ethicon Defendants.
Sullivan's
medical negligence claims against the Maryland Healthcare
Defendants hinge on whether they deviated from the standard of care of healthcare professionals
in selecting the sling and implanting it during the surgery. Her produets liability claims against
the Ethicon Defendants turn on whether those defendants, at an earlier point in time, improperly
designed, manufactured, tested, advertised, and gave directions regarding use of the sling. These
standards of care and the deviation from same are different and distinct from one another. As a
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result, the Court has thc authority to sever the claims against the two groups of defendants.
3 The two cases from this district that Sullivan cites, Stephens v. Kaiser Foundation Health Plan of the Mid-Atlantic
States, 807 F. Supp. 2d 375 (D. Md. 2011) and Larson v. Abboll Laboratories, 2013 WL 5937824 (D. Md.
November 5, 2013), arc inapposite because in those cases the court was asked only to consider severance due to
fraudulent misjoinder, not severance based on Rule 21.
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Finally, there is a critical policy reason why the Court exercises its discretion and severs
the two defendant groups.
Severance is particularly appropriate in this case because it would
allow for the transfer of Sullivan's
claims against the Ethicon Defendants to Multi-District
Litigation (MDL) currently pending before Judge Joseph R. Goodwin in the U.S. District Court
for the Southern District of West Virginia, where over 25,000 products liability cases based on
the TVT are being litigated.
Whatever inconvenience Sullivan might suffer from her having to
litigate her claims in two separate forums, that inconvenience is far exceeded by the prejudice of
requiring the manufacturer
of a TVT to defend on "many more than just two fronts."
See
Joseph, 614 F. Supp. 2d at 873. Forcing the Ethicon Defendants to litigate TVT claims in state
courts throughout the country whenever and wherever the claims might be joined to claims
against healthcare providers that installed the device would defeat the entire purpose of the
MDL.
Accordingly, the Court will sever Sullivan's claims against the Maryland Healthcare
Defendants and rcmand them to state court; it will retain jurisdiction over the claims against the
Ethicon Defendants.
The Court is prepared to assist the Ethicon Defendants in referring the
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claims against it to the pending MDL litigation in West Virginia.
Summing up, the Ethicon Defendants' Motion to Sever, ECF NO.7, is GRANTED and
Sullivan's Motion to Remand, ECF No. 19, is GRANTED as to Counts I, II, Ill, IV, and V but
DENIED as to Counts VI, VII, VIII, and IX.
The Ethicon Defendants have liled a Motion to Stay all Proccedings Pcnding Transfer to
MDL No. 2327.
ECF No. 12. Sullivan's Opposition to the Motion to Stay, ECF No. 20, is
Since the Court has concluded that it has discretion to sever the claims against the Maryland Healthcare
Defendants because they are not necessary parties to the claims against the Ethicon Defendants, it need not decide
the issue of whether the Maryland Healthcare Defendants have been fraudulently misjoined to the claims against the
Ethicon Defendants.
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predicated on her assumption that the Court would not sever her claims against the Maryland
Healthcare Defendants, and would remand the entire case to state court.
Since the Court has
severed her claims against the Maryland Healthcare Defendants, her opposition to the Motion to
Stay is moot. Accordingly, the Court GRANTS the Ethicon Defendants' Motion to Stay, ECF
No. 12.
A separate Order will ISSUE.
/s/
P TER J. MESSITTE
TATES DISTRICT JUDGE
3
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July _' 2015
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