Porta v. Exactech, Inc. et al

Filing 36

MEMORANDUM & ORDER, Porta's 5 motion to remand this action to the Connecticut Superior Court is DENIED and Defendant Michael Laczkowski is hereby DISMISSED without prejudice from this action. So Ordered by Judge Nicholas G. Garaufis on 9/24/2024. (TLH) Modified to correct typo on 9/24/2024 (TLH).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ALFREDO PORTA,

MEMORANDUM & ORDER
24-CV-2824 (NGG) (MMH)

Plaintiff,
-againstEXACTECH, INC., EXACTECH U.S., INC., TPG,
INC., OSTEON HOLDINGS, INC., OSTEON
MERGER SUB, INC., OSTEON INTERMEDIATE
HOLDINGS II, INC., and MICHAEL
LACZKOWSKI,
Defendants.

NICHOLAS G. GARAUFIS, United States District Judge.
This action is among thousands in a multi-district litigation concerning injuries caused by Defendant Exactech, Inc.'s allegedly
defective hip, knee, and ankle orthopedic implants. (See In re Exactech Polyethylene Orthopedic Products Liability Litigation, 22MD-3044 (NGG) (MMH).)
Plaintiff Alfredo Porta ("Plaintiff' or "Porta"), a recipient of Exactech, Inc.'s lmee implant, filed this action against Exactech, Inc.
and Exactech, U.S., Inc. (collectively, "Exactech"), Michael Laczkowsld, and numerous other entities in the Connecticut Superior
Court for the judicial district of Fairfield at Bridgeport, alleging
products liability in violation of Conn. Gen. Stat. §§ 52-572n and
52-572q. (Comp!. (Dkt. 1-1) at 1.) Exactech timely removed the
state court action to the United States District Court for the District of Connecticut, invoking the court's diversity jurisdiction.
(Notice of Removal (Dkt. 1) at 1.) The Judicial Panel on Multidistrict Litigation subsequently ordered the case transferred to
this court on April 16, 2024. (MDL Transfer Order (Dkt 31).)
Before the court is Porta's January 4, 2024 motion to remand the
action to the Connecticut Superior Court on the grounds that the

1

parties are non-diverse and that one of the Defendant-entities did
not properly consent to removal. (Plaintiff's Motion to Remand
("Pl.'s Mot.") (Dkt. 5-1) at 4, 15.) Exactech opposes the motion,
asserting that Porta fraudulently joined the single non-diverse
defendant and that all Defendants properly consented to removal. (Defendants' Memorandum of Law in Opposition ("Defs.'
Opp.") (Dkt. 28) at 1, 14.) For the reasons that follow, Porta's
motion is DENIED and Defendant Michael Laczkowski is hereby
DISMISSED from this action without prejudice.
I.

BACKGROUND 1

On December 23, 2020, Porta underwent right knee replacement
surgery at the Hospital for Special Surgeries in New York City2
("HSS NYC") wherein his surgeon, Dr. Scott Rodeo, implanted
Exactech's total knee replacement system (the "Exactech Knee").
(Comp!. 'f 16.) Between August 2021 and February 2022, Exactech issued several recalls of the polyethylene components in
their implants, including the knee implant installed in Porta. (Id.
1

In resolving this motion, the court treats all facts alleged in Porta's Complaint as true and construes all factual and legal issues in his favor.
Pampillonia v. RJRNabisco, Inc., 138 F.3d 459,461 (2d Cir. 1998) (In the
context of a motion to remand following a defendant's removal, "all factual
and legal issues must be resolved in favor of the plaintiff."); Macklin v. Lexington Ins. Co., No. 20-CV-05372 (ER), 2020 WL 5796814, at *2 (S.D.N.Y.
Sept. 29, 2020) ("When considering a motion to remand, the district court
accepts as true all relevant allegations contained in the complaint and construes all factual ambiguities in favor of the plaintiff."); Pierre v. Capital
One Fin. Corp., No. 21-CV-30 (PKC) (LB), 2021 WL 11690691, at *1 n.3
(E.D.N.Y. 2021) (same).
2

The Complaint does not specify at which Hospital for Special Surgery location Porta received his knee replacement. (See Comp!. 'I 16.) Exactech
states that Porta's surgery occurred at the Hospital for Special Surgery in
New York City. (Defs.' Opp. at 1.) Porta does not dispute that assertion,
and his motion to remand implies that his surgery occurred in New York
City. (Pl.'s Mot. at 11.) Thus, for purposes of adjudicating Porta's motion
to remand, the court assumes Porta's surgery occurted at the Hospital for
Special Surgery in New York City.

2

'l 23.) According to Porta, Exactech packaged its implants in vacuum sealed bags that were oxygen resistant but did not contain
a secondary layer to further augment oxygen resistance. (Id.)
This caused the polyethylene components in the implants to degrade prematurely, forcing some patients to undergo revision
surgeries. (Id. 'l 23.) Porta was one such patient: on January 24,
2023, he underwent right knee revision surgery with Dr. Rodeo
at HSS NYC. (Id. 'l 30.)
On December 1, 2023, Porta filed the instant Complaint against
Exactech, TPG, Inc., Osteon Holdings, Inc., Osteon Merger Sub,
Inc., Osteon Intermediate Holdings II, Inc., and Michael Laczkowski in Connecticut Superior Court, alleging products liability
in violation of the Connecticut Product Liability Act (the "CPLA''),
Conn. Gen. Stat. §§ 52-572n and 52-572q, and claiming punitive
damages as to the corporate Defendants. (Id. 'l'l 1-35, 30(2)33(2) 3 .) In short, Porta alleges that Exactech and the remaining
corporate defendants (collectively, the ''TPG Defendants") violated the CPLA in numerous respects, including by
manufacturing the Exactech Knee in a defective manner and
"failing to adequately warn Plaintiff's orthopedic surgeon, the
medical community, [P]laintiff, and the public about the risks of
[the implant]." (Id. 'l 31.)
Porta also alleges CPLA violations against Michael Laczkowski,
the only individual named in the Complaint. (Id. 'l'l 20-31.) Porta
claims that Laczkowski worked for Exactech and the TPG Defendants as a sales representative tasked with marketing and
advertising the Exactech Knee to physicians' offices, hospitals,
Count One-the products liability claim-spans paragraphs 1-35 of the
Complaint. Instead of starting at paragraph 36, Count Two-the punitive
damages claim-starts at paragraph 30 and ends at paragraph 33. (See
Comp!. Count One, Count Two,) To distinguish between the overlapping
paragraph numbers, references to the paragraphs that fall under Count
Two of the Complaint will be denoted by a (2) next to the paragraph number.
3

3

and other healthcare facilities, "including HSS." (Id. '117.) Porta
further alleges that" [i] n many instances, sales reps such as [Laczkowsld] were present during surgeries involving the [Exactech
Knee] and provided implant components to the surgeon." (Id. 'l
18.) From this, Porta asserts that Laczkowsld qualifies as a "product seller" subject to liability under the CPLA, that he knew or
reasonably should have known about the alleged defects in the
Exactech Knee, and that he should have warned Porta, his surgeon, the medical community, and the public about the risks of
the implant. (Id. 'l'l 21, 31.)
Exactech timely removed the state court action to the United
States District Court for the District of Connecticut, involdng the
court's diversity jurisdiction. (See Notice of Removal at 1.)
On January 4, 2024, Porta moved to remand the action back to
Connecticut Superior Court, arguing that: (1) remand is proper
because both he and Laczkowski are citizens of Connecticut, thus
destroying diversity under 28 U.S.C. § 1332 and rendering Exactech's removal improper under 28 U.S.C. 1441(b)(2); and (2)
the TPG Defendants did not properly consent to removal as required under 28 U.S.C. § 1446(b)(2)(A) because, although
Exactech obtained their written consent to removal, the TPG Defendants previously represented to Plaintiffs counsel that they
would not remove the action, and they should not "be allowed to
renege on the deal." (Pl.'s Mot. at 4, 15-16.) Exactech opposes
the motion, asserting that Laczkowski was fraudulently joined
and the TPG Defendants' written consent to removal was proper.
(Defs.' Opp. at 1, 14.) Porta's motion was fully briefed before the
District of Connecticut on January 29, 2024. (See Pl.'s Reply (Dkt.
29).)
In April 2024, the Judicial Panel on Multidistrict Litigation ordered the case transferred to the Eastern District of New York.
(MDL Transfer Order at 2.) The case officially transferred to this
court on April 17, 2024. (See Transfer Statement Dated April 17,

4

2024.) Thereafter, Porta voluntarily dismissed without prejudice
his claims against the TPG Defendants. (Notice of Voluntary Dismissal (Dkt. 35).)
II. DISCUSSION

Section 1332 grants federal district courts original jurisdiction
over all civil actions "between ... citizens of different States"
where the amount in controversy exceeds $75,000. 28 U.S.C. §
1332(a). The "between ... citizens of different States" language
requires complete diversity between all plaintiffs and defendants.
Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005). 4
While Section 1332 permits a plaintiff to invoke diversity jurisdiction, "[Section] 1441 gives defendants a corresponding
opportunity." Id. Section 144l(a) provides: "any civil action
brought in a State court of which the district courts of the United
States have original jurisdiction[] may be removed by the defendant or the defendants[] to the district court [where the state
action is pending]." 28 U.S.C. § 144l(a). However, defendants
may not remove a state action to federal court on the basis of
diversity if "any of the parties in interest properly joined and
served as defendants is a citizen of the State in which such action
is brought." Id. § 144l(b)(2). Additionally, when an action "is
removed solely under section 144l(a), all defendants who have
been properly joined and served must join in or consent to the
removal of the action." Id. § l 446(b) (2) (A). Ultimately, the party
opposing a motion to remand "bears the burden of demonstrating the propriety of removal." Cal. Pub. Emps.' Ret. Sys. v.
WorldCom, Inc., 368 F.3d 86, 100 (2d Cir. 2004).
The parties agree that Porta is a citizen of Connecticut, Exactech
is a citizen of Florida, the TPG Defendants are citizens of Florida,

When quoting cases, unless otherwise noted, all citations and internal
quotation marks are omitted and all alterations are adopted.

4

5

Delaware, or Texas, and Laczkowsld is a citizen of Connecticut.
(Notice of Removal at 3--4; see also Comp!. "f"I 1-9 (ascribing
same citizenships to parties).) The parties also appear to agree
that, if Laczkowsld was properly joined, his presence in this action would destroy diversity under Section 1332 and render
Exactech's removal improper under Section 1441(b)(2). 5 (Pl.'s
Mot. at 7; Defs.' Opp. at 2.) However, the parties dispute whether
Laczkowsld was fraudulently joined and whether the TPG Defendants properly consented to removal. The court addresses
each dispute in tum.
A. Fraudulent Joinder

Porta asserts that Laczkowsld is a proper defendant in this action
because he qualifies as a "product seller" subject to liability under
the CPLA and, therefore, removal is prohibited because the parties are non-diverse and Laczkowsld is a citizen of the state in
which the suit was brought. (Pl.'s Mot. at 7.) Exactech argues that
Laczkowski is not a "product seller" under the CPLA because he
has no real connection to this case. (Defs.' Opp. at 2.) Instead,
Porta fraudulently joined Laczkowsld in an effort to defeat the
court's diversity jurisdiction, and the court may ignore his presence for purposes of assessing jurisdiction. (Id.)
1. Applicable Law
A plaintiff "may not defeat a federal court's diversity jurisdiction
and a defendant's right of removal by merely joining as defendants parties with no real connection [to] the controversy."
Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 460-61 (2d Cir.
1998). This rule "is known as the doctrine of fraudulentjoinder."
Brown v. Eli Lilly and Co., 654 F.3d 347, 356 (2d Cir. 2011). To
establish fraudulent joinder, the defendant must demonstrate by
Porta does not dispute that the remaining substantive and procedural requirements for removal are satisfied, including the amount in controversy
requirement. (Pl.'s Mot. at 4, 15.)
5

6

clear and convincing evidence "either that there has been outright fraud committed in the plaintiffs pleadings, or that there is
no possibility, based on the pleadings, that [the] plaintiff can
state a cause of action against the non-diverse defendant in state
court." Pampillonia, 138 F.3d at 461. Under the second option,
"[a]ny possibility of recovery, even if slim, militates against a
finding of fraudulent joinder; only where there is no possibility
of recovery is such a finding warranted." Rosenfeld v. Lincoln Life
Ins. Co., 239 F. Supp. 3d 636, 639 (E.D.N.Y. 2017). Fraudulent
joinder "results in dismissal of the non-diverse defendant, and
denial of a motion to remand." Id. at 638.
While "federal law applies to the question of fraudulent joinder,
the ultimate question is whether state law might impose liability
on the facts involved." Id. at 639. Exactech argues that there is
no possibility that Porta can state a cause of action against Laczkowsld for products liability in state court. (Defs.' Opp. at 4.)
Whether Porta can state a claim against Laczkowski in state court
turns on whether Laczkowski qualifies as a "product seller" under
the CPLA. (Pl.'s Mot. at 7.) Ultimately, Exactech bears the "heavy
burden" of proving fraudulent joinder. Pampillonia, 138 F.3d at
461. While the court may look beyond the pleadings in conducting the fraudulent joinder inquiry, it must resolve "all factual and
legal issues" in favor of Porta. Id. at 461-62 (considering affidavit
to determine whether defendant was fraudulently joined).
In Connecticut, products liability actions are governed by the
CPLA, Conn. Gen. Stat. §§ 52-572m, et seq. The CPLA provides a
single statutory cause of action for products liability claims. It
"encompasses all previous common law actions against 'product
sellers, including actions of negligence, strict liability, and warranty, for harm caused by a product."' Oliva v. Bristol-Myers
Squibb Co., No. 05-CV-00486 (JCH), 2005 WL 3455121, at *4
(D. Conn. 2005) (quoting Conn. Gen. Stat.§ 52-572n). The CPLA
does not eliminate common law substantive rights, but rather

7

consolidates them into a single statutory count to simplify the
pleadings. LaMontagne v. E.I. DuPont De Nemours & Co., Inc., 41
F.3d 846, 855-56 (2d Cir. 1994).
Critically, to be liable under the CPIA, a defendant must qualify
as a "product seller." See Conn. Gen. Stat.§ 52-572n(a) ("A product liability claim as provided in [the CPIA] may be asserted and
shall be in lieu of all other claims against product sellers." (emphasis added)). The CPIA defines a "product seller" as:
any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the
business of selling such products whether the sale is for
resale or for use or consumption. The term "product
seller" also includes lessors or bailors of products who
are engaged in the business of leasing or bailment of
products.
Id. § 52-572m(a).

The Supreme Court of Connecticut describes "product sellers" by
distinguishing them from service providers, who are not subject
to liability under the CPIA. See, e.g., Normandy v. Am. Med. Sys.,
Inc., 262 A.3d 698, 704-06 (Conn. 2021) (discussing the distinction). Thus, to maintain an action under the CPIA, "the plaintiff
must establish and prove, inter alia, that the defendant was engaged in the business of selling the product." Zichichi v. Middlesex
Mem'l Hosp., 204 Conn. 399, 403 (Conn. 1987). "Once a particular transaction is labeled a service, as opposed to a sale of a
product, it is outside the purview of [the CPIA] ." Id.; see Normandy, 262 A.3d at 705-06 (reviewing sister state decisions and
concluding that hospitals predominantly held to be service providers, not product sellers); Burkert v. Petrol Plus of Naugatuck,
Inc., 216 Conn. 65, 72 (Conn. 1990) (finding trademark licensor
not a product seller under the CPIA). Whether a defendant qualifies as a product seller is a question of law. Burkert, 216 Conn.
at 72.

8

Connecticut courts have not addressed whether sales representatives such as Laczkowsld qualify as product sellers under the
CPLA. However, a few cases provide the court with guidance on
the issue.
In Burkert, General Motors Corporation ("GM") licensed to third
parties the right to use its trademark, "Dexron II," on transmission fluid if the fluid passed certain performance tests. Id. at 6768. In a lawsuit brought by buyers of allegedly defective transmission fluid bearing the "Dexron II" trademark, the Supreme
Court of Connecticut determined that GM was not a product
seller under the CPLA. Id. at 72. The court explained that because
GM did "no more than allow others to use its ... trademark in
the production, marketing and distribution of transmission
fluid," it was not sufficiently involved in the "stream of commerce" to be considered a product seller under the CPLA. Id.
Similarly, in Fitzgerald v. Landscape Structures, Inc., a parent sued
a playground equipment manufacturer and its New England
sales representative for products liability under the CPLA and for
common law negligence following her daughter's injury on the
manufacturer's playground equipment. No. 060923, 2000 WL
1824160, at *1 (Conn. Super. Ct. 2000). The defendants argued
they were entitled to summary judgment on plaintiffs negligence
claim because the sales representative qualified as a "product
seller" and, therefore, the CPLA provided her exclusive remedy.
Id. at ''5. The Connecticut Superior Court disagreed, concluding
that the sales representative was not a "product seller" but a service provider outside the purview of the CPLA. Id. Although the
sales representative often sold playground equipment directly to
towns and local municipalities, in this instance, the manufacturer
sold the equipment to the town, while the sales representative
merely supervised the town's installation of the equipment. Id.
With "no evidence to support [defendants'] argument that it was
actually [the sales representative] that made the sale to the

9

town," the court concluded that the sales representative was not
a product seller under the CPLA. Id. Apparently critical to the
courts' conclusions in Burkert and Fitzgerald was the defendant's
lack of involvement in the "stream of commerce" that brought
the particular product to the particular plaintiff at issue. Burkert,
216 Conn. at 73, 77-84; Fitzgerald, 2000 WL 1824160, at *5.
The District of Connecticut applied the "product seller" definition
in comparable circumstances in Oliva v. Bristol-Myers Squibb.
There, the plaintiff, Daniel Oliva, sued Bristol-Myers Squibb
("BMS") and Dr. Robert Normandia in Connecticut Superior
Court pursuant to the CPLA, alleging injuries stemming from his
use of a drug manufactured, sold, and distributed by BMS. Oliva,
2005 WL 3455121, at *3. Oliva claimed that Dr. Normandia ''was
engaged by BMS to visit or detail physicians' offices, hospitals,
and other health care facilities to promote [the drug] and to encourage physicians and other health care providers to prescribe,
recommend, or utilize [the drug] for patients." Id. He further alleged that Dr. Normandia "made numerous sales and marketing
calls on the plaintiffs treating physician," and that, during those
calls, Dr. Normandia "bought lunch for the entire office and
made a sales and marketing presentation concerning the alleged
value of [the drug] in treating various infections." Id. According
to Oliva, these marketing calls induced his physician to prescribe
BMS's drug to him. Id.
The defendants removed the case to the District of Connecticut,
involdng the court's diversity jurisdiction. Id. at *l. Oliva moved
to remand the case to the Connecticut Superior Court on the
ground that both he and Dr. Normandia were citizens of Connecticut, thus destroying diversity and rendering removal
improper under Section 1441 (b) (2). Id. Defendants opposed the
motion, arguing fraudulent joinder. Id. As here, whether Dr. Normandia was fraudulently joined turned on whether he qualified
as a "product seller" under the CPLA.

10

The district court noted that the CPLA was modeled on the
United States Department of Commerce's Draft Uniform Product
Liability Law ("Draft Law''), 44 Fed. Reg. 2996-3019 (1979),
and, as a result, the Connecticut Supreme Court "look[s] to the
commentary from that draft for guidance in applying CPLA sections similar to sections of the Draft [Law]." Olivia, 2005 WL
3455121, at *4. The CPlA's product seller definition is identical
to the product seller definition in the Draft Law. Compare Conn.
Gen. Stat.§ 52-572m(a), with 44 Fed. Reg. 2997-2998. Additionally, the commentary to the Draft Law states that a product seller
"includes all parties in the regular commercial distribution chain"
and suggests that a party "be considered a product seller where
a sale of a product is a principal part of the transaction and where
the essence of the relationship between the buyer and seller is
not the furnishing of professional skill or services." 44 Fed. Reg.
3003.
The district court concluded that the defendants were unable to
show "no possibility'' of liability as to Dr. Normandia. Olivia,
2005 WL 3455121, at *5. Although Dr. Normandia had no part
in the design or manufacture of the marketing materials for the
allegedly defective drug, he was "alleged to have extensive
lmowledge of the product and to have convinced [Oliva's doctor]
to prescribe [the drug to him]." Id. A state court "could find that
Normandia's allegedly deliberate and successful efforts to promote the sale of [the drug] rendered the sale 'a principal part of
the transaction' between Normandia and [Oliva's doctor], 44
Fed. Reg. 3003, and that they show significant involvement in
the stream of commerce that brought the product to the end user
[i.e., Oliva]." Id. Additionally, a state court could reasonably determine that Dr. Normandia "was particularly well placed to
avert the injury to Oliva, by warning [his doctor] of [the drug's]
dangers and instructing him on proper use." Id. Thus, the court
concluded, there was a possibility that Oliva could prove Dr. Normandia was a product seller under the CPLA. Id. at *5-6.

11

2.

Discussion

Porta alleges, and the court accepts as true, that Laczkowski
works for Exactech as an "Area Sales Manager" covering Connecticut and parts of New York, including Westchester and
Putnam Counties. (Pl.'s Mot. at 11-12.) Moreover, for purposes
of the instant motion, the court accepts as true Porta's speculation that these sales territories "could well include New York
City." (Id. at 11.) Porta also claims that Laczkowsld "visit[ed]
physicians' offices, hospitals, and other health care facilities (including, at a minimum, the [HSS] located in Stamford,
Connecticut, Wilton, Connecticut and Hamden, Connecticut'' to
promote the Exactech Knee. (Id. at 8; Compl. '117.) Finally, Porta
alleges that "in many instances, sales reps such as Michael Laczkowsld[] were present during surgeries involving [the Exactech
Knee] and provided implant components to the surgeon." (Pl.'s
Mot. at 9; Compl. '118.)
Although he characterizes Laczkowski's declaration as "self-serving," Porta ultimately does not dispute that Laczkowski has
"never attended or covered a surgery with Dr. Rodeo," that Laczkowski does not "recall ever speaking to Dr. Rodeo in any
capacity," and that Laczkowski ultimately did not play a role in
delivering the Exactech Knee to Porta specifically. (Laczkowski
Deel. (Dkt. 1-3) 'l'l 9-12; see generally Pl.'s Mot. at 11-14.) Nevertheless, Porta asserts that Laczkowski qualifies as a product
seller subject to liability under the CPLA for the injuries he sustained from the Exactech Knee. (Pl.'s Mot. at 7, 14.)
Resolving all factual and legal issues in favor of Porta, the court
concludes that Exactech has met its burden of proving "there is
no possibility, based on the pleadings, that [Porta] can state a
cause of action against [Laczkowsld] in state court." Pampillonia,
138 F.3d at 461. While there is a dearth of caselaw regarding
whether and when sales representatives such as Laczkowski
qualify as product sellers under the CPLA, the few instructive

12

cases discussed supra lead the court to the conclusion that there
is no possibility a state court would characterize Laczkowski as a
product seller in these circumstances.
Even accepting Porta's assertion that Laczkowski works for Exactech, that his sales territories "could well include New York
City," and that he has facilitated sales of the Exactech Knee to
HSS locations in Connecticut, Laczkowsld still has "no real connection" to this controversy. Pampillonia, 138 F.3d at 461. Unlike
Dr. Normandia, who made numerous sales and marketing calls
to Oliva's physician that convinced him to prescribe the allegedly
defective drug to Oliva, Laczkowsld has never even spoken to Dr.
Rodeo, let alone convinced him to use the Exactech Knee in
Porta's surgery or observed him install Porta's implant. Oliva,
2005 WL 3455121, at *5. Nor does Laczkowsld have any sort of
relationship with Dr. Rodeo or HSS NYC that would render him
"particularly well placed to avert the injury to [Porta]." Id. Although Laczkowski, like the sales representative in Fitzgerald,
may have convinced some physician in some other hospital to
implant the Exactech Knee in some other patient, Porta does not
allege that it "was actually [Laczkowski] that made the sale to
[Dr. Rodeo or HSS NYC]." Fitzgerald, 2000 WL 1824160, at *5.
Absent some allegation demonstrating a "significant involvement
in the stream of commerce that brought the [Exactech Knee] to
[Porta]," the court concludes there is no possibility that a state
court would classify Laczkowsld as a product seller. Oliva, 2005
WL 3455121, at *5. Rather, Laczkowsld simply has no real connection to this controversy. For that reason, "there is no
possibility, based on the pleadings, that [Porta] can state a cause
of action against [Laczkowski] in state court." Pampillonia, 138
F.3d at 461.
To conclude otherwise would subject all Exactech sales representatives to liability under the CPLA, regardless of their
connection to the plaintiffs injuries. It is true that a "principal

13

purpose of the product liability statute is to protect people from
harm caused by defective and hazardous products," and, "to
meet this purpose, it is necessary that the statute be read to reach
all conduct which affects the safety of a product prior to its entry
into the stream of commerce." Rodia v. Tesco Corp., 527 A.2d 721,
723 (Conn. App. Ct. 1987). But the court cannot conclude that
the CPLA was intended to cover individual sales representatives
with no connection to the specific product or plaintiff at issue.
Such individuals do not engage in "conduct [that] affects the
safety of [the particular] product prior to its entry into the stream
of commerce." Id.
It therefore makes no difference whether Laczkowski advertised
and sold the Exactech Knee to other HSS locations. (See Pl.'s Mot.
at 8.) HSS has over twenty locations across New York, New Jersey, Connecticut, Florida, and even Colombia. (HSS Website
(Dkt. 5-7) at ECF 2-6.) Under Porta's rationale, any sales representative who has sold or advertised the Exactech Knee to any
HSS location would qualify as a "product seller" subject to liability under the CPLA for Porta's injuries, simply because that HSS
location is part of"the corporate entity that installed the defective
product in [Porta]." (Pl.'s Mot. at 8.) A sales representative who
sold the Exactech Knee to the HSS in Palm Beach would be liable
to Porta under the CPLA despite having no actual connection to
Porta or his implant, simply because HSS Palm Beach belongs to
the same parent institution as HSS NYC. The court is satisfied
there is "no possibility'' a Connecticut court would adopt this
reading of the CPLA. Pampillonia, 138 F.3d at 461.
The out-of-circuit case cited in Porta's motion does not convince
the court otherwise. (See Pl.'s Mot. at 6 (citing Hughes v. I-Flow
Corp., No. 08-CV-707 (SEB) (TAB), 2009 WL 10689808 (S.D.
Ind. Feb. 26, 2009).) In Hughes, plaintiffs Roger and Pamela
Hughes sued I-Flow Corporation and Darlene Rowland, an IFlow sales representative and Indiana resident, in Indiana state

14

court pursuant to the Indiana Products Liability Act, alleging that
Roger Hughes suffered injuries as a result of his physician's improper use of I-Flaw's "pain pump." Hughes, 2009 WL 10689808,
at *1. According to the complaint, Rowland observed Hughes's
physician and his staff use and maintain I-Flaw's pain pump improperly, and reportedly approved of their improper use of the
pump.Id.
The defendants removed the action to the United States District
Court for the Southern District of Indiana, invoking the court's
diversity jurisdiction and asserting fraudulent joinder as to Rowland. Id. Applying the relevant provisions of the Indiana Products
Liability Act, which holds "manufacturer[s]" and "seller[s]" liable
for products liability, the Southern District of Indiana concluded
there was a "reasonable possibility that Indiana might deem Ms.
Rowland a 'seller' under the Act." Id. at *3--4. The court likened
Rowland's involvement in Hughes's injuries to that of Dr. Normandia in Oliva, but ultimately rested its conclusion on the fact
that "no Indiana court has held that a sales representative like
Rowland is precluded from liability under the Act, and Indiana
caselaw gives little indication [whether a particular] interpretation of 'seller' would be favored." Id. at *4.
Hughes is inapposite for several reasons. First, Hughes dealt with

a distinct state statute in distinct legal circumstances-the Southern District of Indiana appeared to have even fewer cases at its
disposal than the court does in this case. Id. Here, Oliva, Fitzgerald, and Burkert all provide support for the court's conclusion
that a Connecticut court would not classify Laczkowski as a product seller under the CPLA. Second, like Dr. Normandia, Rowland
contributed directly to the plaintiffs alleged injuries. Rowland
advertised the pain pump to Hughes's doctor, approved of his
improper use of the device, and was ultimately "particularly well
placed to avert the injury to [Hughes], by warning [his doctor]
of [the pump's] dangers and instructing him on proper use."

15

Oliva, 2005 WL 3455121, at *5; Hughes, 2009 WL 10689808, at
*1-2. As discussed above, Laczkowski has no similar connection

to Porta's implant or injuries. Thus, even setting aside the fact
that Hughes is of minimal persuasive authority, it is distinguishable from the circumstances of this case.
In sum, the court concludes that Laczkowsld has "no real connection with [this] controversy." Pampillonia, 138 F.3d at 461. The
doctrine of fraudulent joinder "is meant to prevent plaintiffs from
joining non-diverse parties in an effort to defeat federal jurisdiction." Brown, 654 F.3d at 356. Based on Porta's own allegations,
Laczkowski has no more connection to this case than any other
sales representative at Exactech who advertised and sold the Exactech Knee to other medical professionals at other hospitals.
Laczkowski has never facilitated orders placed by HSS NYC or
even spoken to Dr. Rodeo. Laczkowsld's utter lade of connection
to this case indicates that there is "no possibility'' a Connecticut
court would classify Laczkowski as a product seller under the
CPIA, and that Laczkowski was fraudulently joined for the purpose of defeating the court's diversity jurisdiction. Pampillonia,
138 F.3d at 461.
When a non-diverse party is fraudulently joined, the court disregards that party for purposes of assessing diversity jurisdiction.
Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 302
(2d Cir. 2004) (explaining that "courts overlook the presence of
a non-diverse defendant if from the pleadings there is no possibility that the claims against that defendant could be asserted in
state court"). Additionally, such fraudulentjoinder "results in dismissal of the non-diverse defendant, and denial of [the] motion
to remand." Rosenfeld, 239 F. Supp. 3d at 638; Kuperstein v. Hoffman-Laroche, Inc., 457 F. Supp. 2d 467, 470 (S.D.N.Y. 2006)
("Where joinder of a defendant is fraudulent, the court may dismiss the defendant from the action, and assert jurisdiction over
the remaining parties."). Having determined that Laczkowski

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was fraudulently joined, the court hereby dismisses Laczkowski
from this action without prejudice. 6 However, the court must address Porta's second and final argument with respect to the TPG
Defendants prior to adjudicating his motion to remand.
B. The TPG Defendants' Consent to Removal
Porta next argues that the TPG Defendants "bargained away
[their] right to consent" to removal because, although Exactech
obtained their written consent to removal, the TPG Defendants
previously told Porta that ''TPG will not seek removal," and as
such, they should not "be allowed to renege on the deal." (Pl.'s
Mot. at 15-16; January 2, 2024 Email Exchange (Dkt. 5-9) at
ECF 2.) Exactech argues that the TPG Defendants did not waive
their right to consent to removal, and, regardless, the TPG Defendants kept their promise to Porta because it was Exactech who
removed the action to federal court. (Defs.' Opp. at 14-15.)
1. Applicable Law
When an action "is removed solely under section 1441 (a), all defendants who have been properly joined and served must join in
or consent to the removal of the action." 28 U.S.C. §
1446(b)(2)(A). Put another way, when a defendant removes an
action from state court pursuant to Section 1441 (a), "the remaining defendants must independently express their consent to
removal." Pietrangelo v. Alvas Corp., 686 F.3d 62, 66 (2d Cir.
2012).
6

That Laczkowski is not subject to liability under the CPIA does not preclude Porta from pursuing common law claims against him. See Burkert,
216 Conn. at 73. The CPIA provides "only that it is the exclusive remedy
for claims against product sellers." Id. (emphasis added). As such, "the statute does not foreclose common law claims against those who are not
product sellers." Id. (emphasis added). Thus, Porta remains free to pursue
any common law claims he may have against Laczkowski. However, the
court is skeptical that any such claims would survive, given Laczkowski's
utter lack of involvement in this case.

17

In general, "conduct said to constitute a waiver must be clear and
unequivocal, as waivers are never to be lightly inferred." Mooney
v. City of New Yorlc, 219 F.3d 123, 131 (2d Cir. 2000). Courts
apply this principle to purported waivers of a party's right to remove a case to federal court. See, e.g., Cronin v. Family Educ. Co.,
105 F. Supp. 2d 136, 137-38 (E.D.N.Y. 2000) ("The waiver of a
party's statutory right to remove a case to federal court must be
clear and unequivocal."); JP Morgan Chase Banlc, N.A., v. Reijtenbagh, 611 F. Supp. 2d 389,390 (S.D.N.Y. 2009) ("Any waiver of
the right of removal must be clear and unequivocal."); see also
Yalcin v. Tyler Hill Corp., 566 F.3d 72, 75 (2d Cir. 2009) (An ambiguous forum selection clause "is not a clear and unequivocal
waiver of federal jurisdiction.").
2.

Discussion

The TPG Defendants consented to Exactech's removal via email
on January 3, 2024. 7 (January 3, 2024 Email Exchange (Dkt. 12) at ECF 2 (Question: "Can you please confirm whether the TPG
Defendants consent to Exactech's removal of the Porta case to the
District of Connecticut based on the attached Notice of Removal?" Answer: 'TPG Defendants consent.").) However, Porta
argues that the TPG Defendants "bargained away [their] right to
consent" because, just a day prior, counsel for TPG Defendants
stated: "We can confirm that TPG will not seelc removal, but do
not represent the Exactech Defendants and make no representation on their behalf." (Pl.'s Mot. at 15-16; January 2, 2024 Email
Exchange at ECF 2 (emphasis added).)
The court concludes that the TPG Defendants properly "consent[ ed] to the removal of the action." 28 U.S.C. §
1446(b)(2)(A). Even if the TPG Defendants waived their right to

7

Counsel for Exactech represents, aod Porta does not dispute, that Laczkowski also consented to removal. (Notice of Removal at 4 n.2.)

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seek removal, they made no such assurances on behalf of Exactech. (See January 2, 2024 Email Exchange at ECF 2.) Nor did
the TPG Defendants promise not to consent in the event of another defendant's removal. In other words, to the extent the TPG
Defendants made a binding promise to Porta, they kept it: it was
Exactech, not the TPG Defendants, who removed the action to
federal court. Thus, the TPG Defendants properly consented to
removal as required under Section 1446.
III. CONCLUSION
For the foregoing reasons, Porta's motion to remand this action
to the Connecticut Superior Court is DENIED and Defendant Michael Laczkowski is hereby DISMISSED without prejudice from
this action.
SO ORDERED.
Dated:

Brooklyn, New York
September rJ, 2024
s/Nicholas G. Garaufis
NICHOLAS G. GARAUFIS,
United States District Jud e

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