Favor v. W.L. Gore Associates, Inc. et al
Filing
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ORDER denying as moot 31 Defendants C.R. Bard, Inc. and Davol, Inc.'s Alternative Motion to Sever and denying 20 Plaintiff's Motion to Remand to State Court. Signed by Judge Gregory L Frost on 9/11/13. (sem1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHAEL J. FAVOR [sic],
Case No. 2:13-cv-655
JUDGE GREGORY L. FROST
Magistrate Judge Norah McCann King
Plaintiff,
v.
W.L. GORE ASSOCIATES, INC., et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Plaintiff’s motion to remand and for attorneys’ fees.
(ECF No. 20.) Defendants have filed separate opposition memoranda (ECF Nos. 30, 31) and
Plaintiff has filed a reply (ECF No. 37). Defendants C.R. Bard, Inc., and Davol, Inc., have also
filed an alternative “motion to sever” the claims against the hospital and physician defendants in
the event this Court is inclined to remand. (ECF No. 31.) Upon consideration of the arguments
of the parties and the applicable law, the Court DENIES Plaintiff’s motion for remand (ECF No.
20) and DENIES AS MOOT the alternative motion to sever (ECF No. 31). This Court retains
jurisdiction over this matter.
I.
Plaintiff Michael J. Favors filed this action in the Franklin County (Ohio) Court of
Common Pleas on June 3, 2013, alleging various claims arising from a hernia surgery he
underwent on February 22, 1999. Plaintiff alleges that “Gore Surgical Mesh” was implanted into
his body to repair an inguinal hernia. (Compl. ¶¶ 24-27, 54, ECF No. 2.) The Complaint names
W.L. Gore Associates, Inc. (“Gore”), Davol, Inc. (“Davol”), and C.R. Bard, Inc. (“Bard”) as
“Manufacturing Defendants” that allegedly “designed, researched, manufactured, tested,
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advertised, promoted, marketed, sold, and distributed” the Gore Surgical Mesh. (Id. at ¶ 3.)
Defendants Christopher McIltrot, M.D. and G. Mitchell Kennedy, M.D. are the doctors who
allegedly performed the hernia surgery on Plaintiff and Defendant Riverside Methodist Hospital
(“Riverside”) allegedly supplied the Gore Surgical Mesh to the surgeons. (Id. at ¶¶ 65-72.)
Plaintiff’s Complaint alleges claims sounding in strict liability, negligence, and breach of
warranty against the Manufacturing Defendants. (Id. at ¶¶ 55-63.) As against Dr. McIltrot, Dr.
Kennedy, and Riverside, Plaintiff alleges claims sounding in medical malpractice and
negligence. (Id. at ¶¶ 64-76.) Plaintiff’s negligence claim against the physicians and Riverside
alleges negligence with regard to “improper medical records management.” (Id. at ¶ 75.)
Defendant Gore removed the action to this Court with the consent of all other
Defendants. (ECF No. 1 at ¶ 28, PageID# 8.) The Notice of Removal invoked the Court’s
diversity jurisdiction under 28 U.S.C. § 1332(a). Despite the lack of complete diversity of the
parties (Plaintiff, Defendant Kennedy, and Defendant Riverside reside in Ohio), the Notice of
Removal alleged that the citizenships of Dr. Kennedy and Riverside are disregarded for purposes
of jurisdiction under the doctrine of fraudulent joinder. (Id. at ¶¶ 6-7, PageID# 3.) Because all
of Plaintiff’s claims against Dr. Kennedy and Riverside arise out of the alleged implantation of
Gore Surgical Mesh, Defendants contend that the claims are “medical claims” barred by Ohio’s
four-year statute of repose. See Ohio Rev. Code § 2305.113(C). And because the claims against
the non-diverse Defendants are time-barred, Defendants contend that the doctrine of fraudulent
joinder applies, enabling Defendants to invoke the diversity jurisdiction of this Court. See Coyne
v. American Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999) (noting that fraudulent joinder of
non-diverse defendants does not prevent removal to federal court on diversity grounds).
II.
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The fraudulent joinder doctrine is a judicially created exception to the rule of complete
diversity of citizenship being required to invoke the diversity jurisdiction of the federal courts.
Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998). To invoke this well
established exception to the rule of complete diversity, the removing defendants must produce
“sufficient evidence” that Plaintiff cannot establish a cause of action under Ohio law against the
Ohio defendants. See Coyne, 188 F.3d at 493. This is a more substantial burden than the
defendants would face if they had brought a motion to dismiss under Fed. R. Civ. P. 12(b)(6).
See Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 433 (6th Cir. 2012). In other words, the
Court’s inquiry into a plaintiff’s claims when faced with a claim of fraudulent joinder is “similar
to, but more lenient than” the analysis triggered by a Rule 12(b)(6) motion to dismiss. Id. (citing
Walker v. Philip Morris USA, Inc., 443 F. App’x 946, 952-54 (6th Cir. 2011)). Defendants must
show that there is no colorable basis to predict that Plaintiff “may recover” against either
Riverside or Dr. Kennedy under Ohio law. Id. (quoting Coyne, 183 F.3d at 493). In conducting
the fraudulent joinder analysis, the Court may “pierce the pleading” to consider evidence outside
the pleadings, but only for the limited purpose of identifying “undisputed facts that negate the
claim.” Id.
One way of establishing fraudulent joinder is to demonstrate that claims against the nondiverse defendants are time barred as a matter of law. See Way Int’l v. Exec. Risk Indemn. Co.,
No. 3:07-cv-294, 2008 U.S. Dist. LEXIS 25445, at *8 (S.D. Ohio Mar. 31, 2008) (collecting
cases). In this case, Defendants contend that the claims against Riverside and Kennedy are
barred by the Ohio Rev. Code § 2305.113(C), which provides:
Except as to persons within the age of minority or of unsound mind as provided
by section 2305.16 of the Revised Code, and except as provided in division (D) of
this section, both of the following apply:
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(1) No action upon a medical, dental, optometric, or chiropractic claim shall be
commenced more than four years after the occurrence of the act or omission
constituting the alleged basis of the medical, dental, optometric, or
chiropractic claim.
(2) If an action upon a medical, dental, optometric, or chiropractic claim is not
commenced within four years after the occurrence of the act or omission
constituting the alleged basis of the medical, dental, optometric, or
chiropractic claim, then, any action upon that claim is barred.
Ohio Rev. Code § 2305.113(C) is a statute of repose that bars an action four years after
the occurrence giving rise to the medical claim, regardless of when the claim may have accrued.
See Ruther v. Kaiser, 134 Ohio St. 3d 408, 2012-Ohio-5686, 983 N.E. 2d 291, at ¶ 18 (Ohio
2012). In this case, it is undisputed that the surgery in question took place on February 22, 1999.
Thus, taking as true Plaintiff’s allegation that the Gore Surgical Mesh was implanted during that
surgery (an allegation that Defendants deny), any medical claim arising out of that surgery could
not be brought after February 22, 2003. By operation of the statute of repose, Plaintiff’s claim is
time barred on its face.
In an attempt to escape the time bar of Ohio Rev. Code § 2305.113(C), Plaintiff argues
that the exception set out in Ohio Rev. Code § 2305.113(D) applies here. Section (D)(2)
provides an exception to the statute of repose “[i]f the alleged basis of a medical claim . . . is the
occurrence of an act or omission that involves a foreign object that is left in the body of the
person making the claim.” Ohio Rev. Code § 2305.113(D)(2). In that case, the person may
commence his or her action within one year after discovering the “foreign object.” Id. In
support of his motion to remand, Plaintiff argues that the Gore Surgical Mesh is a “foreign
object” placed within his body, thereby taking this case out of the reach of the statute of repose.
(Pl.’s Mot. Remand, ECF No. 20 at PageID# 244.)
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Plaintiff’s motion for remand cites no authority to support the proposition that the Gore
Surgical Mesh qualifies as a “foreign object” within the meaning of the statute of repose
exception set forth in Ohio Rev. Code § 2305.113(D)(2). And, notably, the case law cited by
Defendants cuts against Plaintiff’s argument. Ohio cases indicate that the exception carved out
for a “foreign object” left in a patient’s body is intended to cover objects that should have been
removed from the body, not to objects which are intentionally placed there as part of the medical
procedure to which the patient consented. See Emery v. Dettling, No. 8117, 1976 Ohio App.
LEXIS 6327 at *3 (Ohio Ct. App. Aug. 4, 1976) (distinguishing Melnyk v. Cleveland Clinic, 32
Ohio St. 2d 198, 290 N.E. 2d 916 (Ohio 1972), which applied tolling rule to a sponge and
forceps that a surgeon negligently left in the patient’s body during surgery); Woodgeard v.
Miami Valley Hosp. Soc., 47 Ohio Misc. 43, 45, 354 N.E. 2d 720 (Ohio C.P. 1975) (“foreign
object” cases are limited to cases in which an object has been negligently left in the body) .1
Under Ohio law, this is not a “foreign object” case. The gravamen of Plaintiff’s
complaint is that the Gore Surgical Mesh was somehow defective and that Drs. McIltrot and
Kennedy should have known of the defects. Plaintiff’s case is not about the surgeons having
failed to remove an object from Plaintiff’s body that was not intended to be placed there.
Accordingly, the exception to the statute of repose set forth in Ohio Rev. Code § 2305.113(D)(2)
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Defendants Riverside and Kennedy contend that this Court can conclude this is not a “foreign object”
case based upon the contention that no Gore Surgical Mesh was implanted at all in Plaintiff’s body.
Thus, Riverside and Kennedy argue that Plaintiff’s claim is factually flawed in that the premise upon
which it is based (i.e., that surgeons implanted surgical mesh in his body) is untrue. While Defendants
may ultimately prevail on this factual issue, this is not an appropriate basis upon which to find fraudulent
joinder. Plaintiff alleges—rightly or wrongly—that Gore Surgical Mesh was implanted in his body
during his February 1999 surgery. Though the Court may look beyond the pleadings when considering a
fraudulent joinder analysis, it may only do so for the limited purpose of identifying “undisputed facts that
negate the claim.” Casias, 695 F.3d at 433 (emphasis added). Riverside’s and Kennedy’s argument asks
the Court to do more than that: it asks the Court to look at evidence outside the pleadings and resolve a
disputed factual issue in their favor, then bootstrap that into a finding of fraudulent joinder. See Walker,
443 F. App’x at 956.
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does not apply. As a result, the medical claims asserted against Ohio resident Defendants
Riverside and Dr. Kennedy are time barred.
In his reply brief in support of his motion to remand, Plaintiff does not respond to
Defendants’ arguments regarding the inapplicability of the “foreign object” exception to the
statute of repose. Instead, Plaintiff takes a different approach, arguing that he has alleged a valid
claim against the Ohio resident Defendants for “negligence in the maintenance of [Plaintiff’s]
health records and spoliation of evidence.” (Pl.’s Reply, ECF No. 37 at PageID# 443.) In
particular, Plaintiff makes much of the fact that a post-operative record of one of the surgeons
referred to Plaintiff as a 43-year old White male when Plaintiff was a 27-year old Black male at
the time of the operation. Thus, Plaintiff argues that regardless of whether his medical
malpractice claim is barred by the statute of repose, he has stated a valid claim for the Ohio
Defendants’ failure to properly maintain his medical records, a valid cause of action that
prevents Defendants from removing this case on the basis of fraudulent joinder.
The Court is not persuaded by Plaintiff’s argument. Even looking beyond the fact that
Plaintiff did not reveal this alternative basis for remand until his reply brief, his argument is
without merit.2 Though he characterizes his claim with regard to the medical records as one for
intentional spoliation of evidence (i.e., spoliation of his medical records), Plaintiff did not allege
a spoliation claim in his Complaint. Plaintiff alleges only a negligence claim with regard to the
content of his medical records. This Court need not opine on whether Plaintiff could state a
claim for spoliation of evidence because his Complaint simply does not state one at all;
Plaintiff’s claim with regard to his medical records sounds in negligence and nothing more.
(Indeed, Plaintiff’s Complaint titles the claim, “Physician and Hospital Negligence.”)
2
A reply brief is not the proper place for a movant to raise an issue for the first time. See Ross v. Choice
Hotels Int’l, Inc., 882 F. Supp. 2d 951, 958 (S.D. Ohio 2012).
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So construed, the Court cannot find that Plaintiff has stated a negligence claim that would
enable him to escape the doctrine of fraudulent joinder. Plaintiff cites no authority for the
proposition that a claim for negligent maintenance of medical records even exists under Ohio
law. And even if such a theory were conceivably cognizable, the claim alleged in the Complaint
plainly arises out of the medical diagnosis, care, or treatment of Plaintiff with regard to the
hernia operation occurring in February 1999. As such, it is a “medical claim” within the
meaning of Ohio Rev. Code § 2305.113(E)(3), is part and parcel of the medical malpractice
claim asserted against Riverside and the doctors, and is subject to the statute of repose analyzed
above. Accordingly, the claim alleging negligent maintenance of medical records (assuming
such a theory exists) is a medical claim that is time barred.
III.
For the reasons set forth above, the Court finds that the doctrine of fraudulent joinder
applies and that the action was, therefore, properly removed to this Court. Accordingly, the
Court DENIES Plaintiff’s motion for remand and for attorneys’ fees (ECF No. 20). The Court
further DENIES AS MOOT the alternative motion to sever of Defendants Davol and Bard (ECF
No. 31). The Court retains jurisdiction over this action.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE
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