Harman v. Breg, Inc.

Filing 83

ORDER granting 68 motion to dismiss case without prejudice. Signed on 4/20/16 by Magistrate Judge John T. Maughmer. (Alexander, Pam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
KATIE HARMAN,
Plaintiff,
v.
BREG, INC.,
Defendant.

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Civil Action Number
14-003313-CV-S-JTM

ORDER
On July 14, 2014, plaintiff Katie Harman (“Harman”) filed the present product liability
action against Breg, Inc. (“Breg”). Harman’s lawsuit arises from post-surgery medical treatment
received by Harman following left shoulder surgery in 2008. Part of Harman’s treatment
involved the use of a PainCare 3000 pain pump manufactured by Breg. In her lawsuit, Harman
alleges that Breg failed to warn and/or instruct the medical community that the use of the
PainCare 3000 in the “joint space” or the “intra-articular space” of the shoulder could cause
permanent injuries. Because Harman is a resident of Missouri and Breg is a California resident,
diversity jurisdiction supported the filing in federal court.
Currently pending before the Court is Harman’s motion to dismiss the case without
prejudice [Doc. 68]. Harman asserts that, through discovery, she has identified two potential
parties that she wishes to add as defendants – Kevin Moseley (“Moseley”) and his employer,
TOSA Medical, Inc. (“TOSA”). Because Moseley is a Missouri resident, his addition in this
forum would destroy diversity and, thus is prohibited. 28 U.S.C. § 1367(b). As such, Harman
seeks a dismissal so as to permit her to refile her action in Missouri state court against Breg,
TOSA, and Moseley. Breg opposes a dismissal or, in the alternative, requests that a dismissal
without prejudice be conditioned on Harman paying Breg’s litigation costs expended to date.

The relevant civil procedural rule provides that “an action may be dismissed at the
plaintiff's request only by court order, on terms that the court considers proper.” FED. R. CIV. P.
41(a)(2). In addition, “[u]nless the order states otherwise, a dismissal under this [provision] is
without prejudice. FED. R. CIV. P. 41(a)(2). The Eight Circuit has identified four factors to be
considered by a district court ruling on a Rule 41(a)(2) motion:
(1)

the defendant's effort and the expense involved in preparing for
trial,

(2)

excessive delay and lack of diligence on the part of the plaintiff in
prosecuting the action,

(3)

insufficient explanation of the need to take a dismissal, and

(4)

the fact that a motion for summary judgment has been filed by the
defendant.

Paulucci v. City of Duluth, 826 F.2d 780, 783 (8th Cir. 1987).
Analyzing the Paulucci factors in this case produces a mixed bag. On one hand,
discovery in this case has consumed many months, involved numerous depositions and requests
for written discovery, and (undoubtedly) substantial attorney’s fees for both parties, but, in
particular (as required by Paulucci) on behalf of Breg. However, although discovery was very
nearly completed at the time of Harman’s motion to dismiss, Breg had not yet filed any motion
for summary judgment (an event on which the Paulucci court placed great significance). In light
of the foregoing, then, a ruling on the present Rule 41(a)(2) motion essentially boils down to
Harman’s reason for wanting a dismissal and the diligence of Harman in discovering that reason.
According to Harman, it was not until the February 3, 2016 deposition of Moseley that
Harman first learned that a Sales Representative Agreement existed between Breg and TOSA
that generally required Moseley to attend Breg product training, required him to have a complete
understanding of Breg products (including use instructions and warnings), required him to
provide Breg product information to medical personnel, and prohibited him from promoting off2

label uses for Breg products. The Sales Representative Agreement also characterized Moseley
and TOSA as independent contractors and not agents or employees of Breg. Moreover, Harman
believed that, based on the tenor of questions at Moseley’s deposition, Breg may attempt to
argue to a jury at trial that Moseley and TOSA (and not Breg) are the sole responsible parties for
any damages incurred by Harman.
In opposing a dismissal, Breg argues that Harman’s counsel knew or should have known
that an “empty chair” defense 1 was a possibility in the case since it had been raised in other Breg
product liability litigation involving the same plaintiff’s attorneys. While this argument has
some merit, standing alone, it does not compel the Court to conclude that Harman’s counsel was
not diligent in this case. In examining the discovery and disclosures in this case, the Court does
believe that Harman’s counsel could have been more assiduous in learning about the agency
status of the sales representative viz-a-viz Breg and, thus, anticipated the possibility of an empty
chair argument to the jury. However, the Court also believes that Breg could and should have
been forthcoming in its Rule 26 disclosures in this case. Specifically, the Rules require:
[A] party must, without awaiting a discovery request, provide to
the other parties:
(i)

(ii)

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the name and, if known, the address and telephone number
of each individual likely to have discoverable information-along with the subjects of that information--that the
disclosing party may use to support its claims or defenses,
unless the use would be solely for impeachment;
a copy – or a description by category and location – of all
documents, electronically stored information, and tangible
things that the disclosing party has in its possession,
custody, or control and may use to support its claims or
defenses, unless the use would be solely for impeachment.

Assuming evidentiary support, generally “a defendant is allowed to prove that a
non-party was the sole proximate cause of the plaintiff's harm—the so-called “empty chair”
defense in which a defendant shifts blame to a joint tortfeasor who is not in the courtroom.”
Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 114, 853 A.2d 940, 947 (2004).
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FED. R. CIV. P. 26(1)(A)(1)(i), (ii). In its Rule 26 disclosures (and its answer), Breg neither
specifically identified TOSA or Moseley by name nor did it produce the Sales Representative
Agreement.
Under these circumstances, the Court seemingly has two equitable choices: (1) deny the
motion to voluntarily dismiss and allow the case to go forward without TOSA and Moseley as
party-defendants, but bar Breg from arguing the empty chair defense because of the disclosure
failures, or (2) dismiss the case without prejudice and allow Harman to bring all of the allegedly
responsible parties together before a single jury that can determine each parties culpability, if
any, for Harman’s injuries. The Court concludes that the latter alternative better serves the
interests of justice and moreover, concludes on the record before it that such dismissal need not
be further conditioned. Accordingly, it is
ORDERED that Plaintiff Katie Harman’s Motion For Leave To Voluntarily Dismiss
Action Without Prejudice Or Imposition Of Costs Pursuant to Rule 41, filed Februrary 23, 2016
[Doc. 68] is GRANTED and this matter is dismissed without prejudice.

/s/ John T. Maughmer
John T. Maughmer
United States Magistrate Judge

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