Rolfe et al v. Biomet, Inc. et al
MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that the Plaintiffs' motion for reconsideration is GRANTED. (Doc. No. 24 .) IT IS FURTHER ORDERED that the entire case is remanded to the Circuit Court for the County of St. Louis, State of Missouri. Signed by District Judge Audrey G. Fleissig on 8/29/2014. (NEB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
PETER ROLFE and RHONDA ROLFE,
BIOMET, INC.; BIOMET
ORTHOPEDICS, LLC; MOHAMMAD
HAQUE, M.D.; and KINDRED
HOSPITALS EAST, LLC,
Case No. 4:14CV00738 AGF
MEMORANDUM AND ORDER
This action is before the Court on Plaintiffs’ motion for reconsideration of the
Court’s Memorandum and Order dated July 14, 2014, denying Plaintiffs’ motion to
remand the case to state court. For the reasons set forth below, the motion for
reconsideration will be granted.
On February 24, 2014, Plaintiffs Peter Rolfe (citizen of Illinois) and Rhonda Rolfe
(citizen of Missouri) filed this action in Missouri state court. As more fully explained in
the Court’s July 14, 2014 Memorandum and Order, Plaintiffs asserted product liability
claims against Defendants Biomet, Inc., and Biomet Orthopedics, LLC, (“the Biomet
Defendants”) (citizens of Indiana), 1 and medical negligence claims against Defendants
Kindred Hospital East (“Kindred”) (a Delaware Corporation with its principal place of
Plaintiffs alleged that the Biomet Defendants manufactured a reverse shoulder system
that was implanted into Peter Rolfe’s left shoulder on December 6, 2010, and that the
shoulder system was defective and caused Peter Rolfe to undergo numerous additional
surgeries which led to postoperative infections and medical bills in excess of $590,000.
business in Kentucky) and Mohammed Haque, M.D. (citizen of Missouri).2 On April 14,
2014, the Biomet Defendants removed the action to this Court on the basis of diversity of
citizenship pursuant to 28 U.S.C. § 1332(a)(1).
The Biomet Defendants argued that the two sets of claims were fraudulently
misjoined to defeat diversity jurisdiction. The Biomet Defendants argued that the Court
should sever Plaintiffs’ claims against Kindred and Haque from Plaintiffs’ claims against
the Biomet Defendants, and remand the claims against Kindred and Haque to state court
due to the lack of complete diversity. On May 14, 2014, Plaintiffs moved to remand the
entire case to state court.
In this Court’s July 14, 2014 Memorandum and Order, the Court concluded that
under the fraudulent misjoinder doctrine, as the Court predicted the doctrine would be
applied by the Eighth Circuit using an “egregiously misjoined” standard, Plaintiffs’
joinder of their products liability claims against the Biomet Defendants with their medical
negligence claims against Kindred and Haque met the “egregiously misjoined” standard
for fraudulent misjoinder. The Court severed the claims against the Biomet Defendants
from the claims against Kindred and Haque and remanded the medical negligence claims
to state court, while retaining jurisdiction over the products liability claims.
Upon reconsideration, the Court believes that joinder of the two sets of claims
does not meet the “egregiously misjoined” standard for a finding of fraudulent
Plaintiffs alleged that in February and March of 2012, Kindred and Haque committed
medical negligence when they improperly prescribed for Lovenox, an anticoagulant
indicated to help reduce the risk of developing deep vein thrombosis, to be injected into
Peter Rolfe’s left thigh muscle.
misjoinder. Under this standard, a federal court does not need to make a “judgment on
whether the plaintiffs’ claims are properly joined under Rule 20.” In re Prempro Prods.
Liab. Litig., 591 F.3d 613, 623 (8th Cir. 2010) (citing Johnson v. Glaxo Smith Kline, 214
F.R.D. 416, 421 (S.D. Miss. 2002) (holding that the issue of “mere misjoinder” is more
appropriately addressed to the state district court)). Rather, to be egregiously misjoined,
the claims must have “‘no real connection,’” Id. at 623 (quoting Tapscott v. MS Dealer
Serv. Corp., 77 F.3d 1353, 1360 (11th Cir. 1996)), such that the “misjoinder borders on a
‘sham.’” Id. at 624 (quoting Tapscott, 77 F.3d at 1360).
Though it was not apparent from the complaint, upon review of all of the
Plaintiffs’ filings in the case, it appears there is a sufficient logical connection between
Plaintiffs’ products liability claims and medical negligence claims that it would not be
egregious, applying Federal Rule of Civil Procedure 20 or Missouri Rule of Civil
Procedure 52.05, to join the claims.3 While there was a period of 14 months between the
events that gave rise to the two sets of claims, there may well be overlapping damages
between the products liability claims and medical negligence claims.
Furthermore, as Plaintiffs allege, Peter Rolfe’s reverse shoulder system implant
and his treatment by Kindred and Haque are causally related because Peter Rolfe would
not have sought medical care from Haque but for the defective reverse shoulder system.
Federal courts commonly have found joinder was proper based on injuries that “allegedly
stem from two accidents that are alleged to be causally related.” Jacques v. Hyatt Corp.,
The Court need not decide whether to apply the federal or state joinder rule because
they are identical in all significant respects. See In re Prempro, 591 F.3d 613 at 622.
No. C 11-05364 WHA, 2012 WL 3010969, at *3 (N.D. Cal. July 23, 2012); see also
Wilson v. Famatex GmbH Fabrik Fuer Textilausruestungsmaschinen, 726 F. Supp. 950,
951-52 (S.D.N.Y. 1989).
As explained in the Court’s Memorandum and Order dated July 14, 2014, to show
egregiousness, the Biomet Defendants rely, in part, on Plaintiffs’ previous lawsuit against
the Biomet Defendants that was dismissed without prejudice. The Biomet Defendants
argue that this history demonstrates that Plaintiffs added Haque to defeat complete
diversity. The Court concludes that the history, while it may establish Plaintiffs’ desire to
have their state-law claims heard in state court, does not establish egregiousness. Due to
the connection between Plaintiffs’ claims against Haque and the Biomet Defendants, the
Court finds that Plaintiffs’ addition of claims against Haque is not a sham.
In sum, if the claims have been merely improperly joined, the “proper procedure”
is for the Biomet Defendants “to argue that to the state court.” See In re Prempro, 591
F.3d at 623-4.
IT IS HEREBY ORDERED that the Plaintiffs’ motion for reconsideration is
GRANTED. (Doc. No. 24.)
IT IS FURTHER ORDERED that the entire case is remanded to the Circuit
Court for the County of St. Louis, State of Missouri.
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 29th day of August, 2014.
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