Helm et al v. MOOG et al
ORDER GRANTING AMENDED MOTION TO REMAND...granting 53 Amended Motion to Remand filed by Christopher Helm, Sharyn Helm. The Court concludes that AstraZeneca has failed to carry its burden of demonstrating that the Plyant defendants were improperly joined. As a result, diversity jurisdiction is lacking, and this case is REMANDED to the 271st Judicial District Court, Wise County, Texas. [see Order for specifics] (Ordered by Judge Terry R Means on 7/27/2011) (klm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
CHRISTOPHER HELM, M.D. and
SHARYN HELM, Individually and
as Next Friends of H.H., a
Minor, Q.H., a Minor, and
R.H., a Minor
MOOG INC., ET AL.
ACTION NO. 4:11-CV-109-Y
ORDER GRANTING AMENDED MOTION TO REMAND
Pending before the Court is Plaintiffs' Amended Motion to Remand
(doc. 53). After review of the motion, the related briefs, and the
applicable law, the Court concludes that Plaintiffs' motion should
Plaintiffs brought this suit in the 271st Judicial District
Court, Wise County, Texas, alleging negligence, strict products
liability for design, manufacturing, and marketing defects; breaches
of the implied warranties of merchantability and fitness for a
particular purpose; breach of express warranty; and liability under
Texas Civil Practice and Remedies Code section 82.003(a). Plaintiffs
allege that plaintiff Christian Helm was injured as a result of the
insertion of an Accufuser pain pump into his left shoulder after
surgery to repair a labral tear at Wise Regional Health System in
Wise County, Texas.
(Pls.' First Am. Pet. (Ex. 14 to doc. 1) 5-6,
¶¶ 4.1, 4.5.) The pain pump was put in Helm's shoulder to administer
a post-operative pain relief medication, marcaine, on a continuous
ORDER GRANTING AMENDED MOTION TO REMAND - Page 1
(Id. ¶¶ 4.3, 4.4.)
Plaintiffs allege that as a result of
the insertion of this device and the continuous injection of
anesthetics through the pump, Helms suffered permanent damages to
his shoulder joint, including a condition called chondrolysis. (Id.
6, ¶ 4.5.)
This condition is the complete or nearly complete loss
of cartilage in the shoulder joint, leaving bone on bone.
manufactured, distributed, or marketed either the Accufuser pain pump
or the drug marcaine.
Defendants AstraZeneca Pharmaceuticals LP and AstraZeneca LP
(collectively, "AstraZeneca") removed the case to this Court,
contending that this Court could exercise diversity subject-matter
AstraZeneca's notice of removal recognizes that
defendants Brett Plyant; Southern Innovations, L.L.C.; and Plyant
Medical, Ltd. (collectively, "the Plyant defendants"), are citizens
of the state of Texas for purposes of diversity jurisdiction. (Notice
of Removal (doc. 1) 6-7.)
AstraZeneca's notice contends, however,
that the Plyant defendants were improperly joined, and that their
citizenship should thus be disregarded for purposes of determining
the Court's jurisdiction.
(Id.) Plaintiffs disagree and now seek
A defendant may remove from state court any civil action over
which the federal court would have original jurisdiction. 28 U.S.C.A.
§ 1441(a) (West 2006).
A federal court can exercise original
ORDER GRANTING AMENDED MOTION TO REMAND - Page 2
jurisdiction based upon diversity of citizenship where the case
involves citizens of different states and the amount in controversy,
exclusive of interest and costs, exceeds $75,000.
28 U.S.C.A. §
1332(a) (West 2006). An action is removable on the basis of diversity
jurisdiction, however, “only if none of the parties in interest
properly joined and served as defendants is a citizen of the State
in which such action is brought.”
Id. § 1441(b) (West 2006).
the removing parties, Defendants bear the burden of establishing the
basis for federal jurisdiction.
See St. Paul Reins. Co., Ltd. v.
Greenburg, 134 F.3d 1250, 1253 (5th Cir. 1998).
AstraZeneca contends that the Plyant defendants were improperly
joined to defeat diversity jurisdiction. The purpose of an improperjoinder inquiry is to determine whether or not the in-state defendants
were properly joined; thus, this Court must focus on the joinder and
not the merits of Plaintiffs' case. See Smallwood v. Ill. Cent. R.R.
Co., 385 F.3d 568, 573 (5th Cir. 2004) (en banc), cert. denied, 544
U.S. 992 (2005).
A defendant may establish improper joinder by
showing either: "(1) actual fraud in the pleading of jurisdictional
facts, or (2) inability of the plaintiff to establish a cause of
action against the non-diverse party in state court." Travis v. Irby,
326 F.3d 644, 647 (5th Cir. 2003). AstraZeneca does not allege that
Plaintiffs committed fraud in the pleading of jurisdictional facts;
rather, it contends that Plaintiffs are unable to establish a cause
of action against the Plyant defendants.
(Notice of Removal (doc.
Thus, this Court must decide whether there is no reasonable basis
ORDER GRANTING AMENDED MOTION TO REMAND - Page 3
to predict that Plaintiffs might be able to recover against the Plyant
defendants in state court.
See Smallwood, 385 F.3d at 573.
doing, the Court can either: (1) "conduct a Rule 12(b)(6)-type
analysis, looking initially at the allegations of the complaint to
determine whether the complaint states a claim under state law against
the in-state defendant" or (2) "pierce the pleadings to conduct a
"Ordinarily, if a plaintiff can survive a
Rule 12(b)(6) challenge, there is no improper joinder."
Nevertheless, the second option applies "when a plaintiff has stated
a claim, but has misstated or omitted discrete facts that would
determine the propriety of the joinder."1
Federal Rule of Civil Procedure 12(b)(6) authorizes the dismissal
of a complaint that fails "to state a claim upon which relief can
be granted." This rule must, however, be interpreted in conjunction
with Rule 8(a), which sets forth the requirements for pleading a claim
for relief in federal court. Rule 8(a) calls for "a short and plain
statement of the claim showing that the pleader is entitled to
relief." FED. R. CIV. P. 8(a); see also Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 508 (2002) (holding Rule 8(a)'s simplified pleading
standard applies to most civil actions).
Nevertheless, a plaintiff must plead "enough facts to state a
claim to relief that is plausible on its face," and his "factual
The Fifth Circuit Court of Appeals stated that the "summary inquiry" will
apply in cases that are “hopefully few in number.” Id. at 573. The court gave
as examples the following situations: "the in-state doctor defendant did not
treat the plaintiff patient, the in-state pharmacist defendant did not fill a
prescription for the plaintiff patient, a party's residence was not as alleged,
or any other fact that easily can be disproved if not true." Id. at 574 n.12.
ORDER GRANTING AMENDED MOTION TO REMAND - Page 4
allegations must be enough to raise a right to relief above the
speculative level, . . . on the assumption that all the allegations
in the complaint are true (even if doubtful in fact)."
Corp. v. Twombly, 127 S. Ct. 1955, 1965 & 1974 (2007). A court need
not credit bare conclusory allegations or "a formulaic recitation
of the elements of a cause of action."
Id. at 1955.
'does not need detailed factual allegations,' but must provide the
plaintiff's grounds for entitlement to relief--including factual
allegations that when assumed to be true 'raise a right to relief
above the speculative level.'" Cuvillier v. Taylor, 503 F.3d 397,
401 (5th Cir. 2007) (quoting Twombly, 550 U.S. at 555). In reviewing
a complaint under Rule 12(b)(6), the Court must accept as true all
well-pleaded, non-conclusory allegations in the complaint and
liberally construe the complaint in favor of the plaintiff. Kaiser
Aluminum, 677 F.2d at 1050.
At all times the heavy burden of proving improper joinder remains
on the removing party.
See Campbell v. Stone Ins., Inc., 509 F.3d
665, 669 (5th Cir. 2007).
In determining whether a defendant was
improperly joined, a court "resolve[s] all contested factual issues
and ambiguities of state law in favor of the plaintiff."
Harford Acc. & Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007).
Plaintiffs' first amended petition alleges that the Plyant
defendants "distributed and marketed" the Accufuser pain pump, and
that Brett Plyant "was the representative who sold" the pump that
ORDER GRANTING AMENDED MOTION TO REMAND - Page 5
was used in Helm's shoulder.
(Pls.' First Am. Pet. ¶ 4.2.)
Plaintiffs also allege that the Accufuser pain pump was "originally
designed, manufactured, marketed and placed into the stream of
commerce by defendant Moog." (Id.) Thus, Plaintiffs agree that the
Plyant defendants were not manufacturers of the pain pump.
Consequently, AstraZeneca contends that Plaintiffs' allegations are
insufficient because they do not overcome the immunity to nonmanufacturing sellers afforded under Texas law.
In Texas, non-manufacturing sellers like the Plyant defendants
"are not liable for harm caused to the claimant by [a] product" unless
the claimant can prove that one of seven enumerated exceptions
Tex. Civ. Prac. & Rem. Code § 82.003(a) (West 2011).
Plaintiffs' amended petition contends that the three exceptions found
in section 82.003(a)(4), (5), and (6) apply because:
(1) [the Plyant defendants] "exercised substantial control
over the content of a warning or instruction that
accompanied the product [that was] inadequate and the
claimant's harm resulted from the inadequacy of the warning
or instruction" by representing that the Accufuser pain
pump was suitable for use after shoulder surgery to
administer post-operative pain relief medication; [Texas
Civil Practice & Remedies Code § 82.003(a)(4)];
(2) they "made an express factual representation about an
aspect of the product [i.e. that it was suitable for its
intended use] [that was] incorrect" and relied upon by Dr.
Helm and Dr. Helm's surgeon resulting in Dr. Helm's damages
and if the aspect of the product had been as represented
Dr. Helm would not have been harmed by the product [Texas
Civil Practice & Remedies Code 82.003(a)(5)]; and
(3) they "actually knew of a defect to the [Accufuser pain
pump] at the time the seller supplied" it to Dr. Helm "and
the claimant's harm resulted from the defect" [Texas Civil
Practice & Remedies Code § 82.003(a)(6).
(Pls.' First Am. Pet. 13, ¶ 6.8.)
ORDER GRANTING AMENDED MOTION TO REMAND - Page 6
In support of their allegations, Plaintiffs allege that Brett
Plyant "was the representative who sold the Accufuser pain pump to
Wise Regional Health Systems." (Id. 5, ¶ 4.2.) The Plyant defendants
allegedly "distributed and marketed the pain pumps without doing a
single study to determine the safety of high-volume pain pumps or
what damage could be caused when physicians placed the catheter into
the shoulder, much less directly into the shoulder joint space . .
. . Instead, Defendants encouraged orthopedic surgeons to use the
pumps and anesthetics, in tandem, in an untested and dangerous
manner." (Id. 6, ¶ 4.6.) Plaintiffs further contend that the Plyant
defendants "continued to sell and market these pumps with reckless
indifference" even after the FDA rejected the manufacturers' requests
for approval for placement of the pain pump in the shoulder joint
(Id. 7, ¶ 4.7.)
The Plyant defendants "never provided any
warning or disclosed any information that the Accufuser pain pump
used in Dr. Helm's surgery was not suitable for the intended purpose
of use after shoulder surgeries to administer post-operative pain
relief medication, marcaine, on a continuous basis." (Id. ¶ 4.8.)
Similarly, the Plyant defendants "never provided any warning that
the use of the Accufuser pain pump could cause chondrolysis or that
its use as a pain pump for shoulder surgery had been specifically
rejected by the FDA."
Plaintiffs further allege that
Defendants "knew, or in the exercise of ordinary care should have
known, that the Accufuser pain pump and anesthetic marcaine w[ere]
defective and/or unreasonably dangerous to those persons undergoing
shoulder surgery in which a pain pump is inserted into the shoulder
ORDER GRANTING AMENDED MOTION TO REMAND - Page 7
joint space and anesthetics are continuously injected into the
(Id. at 8-9, ¶ 6.1.)
Construing the allegations in the light most favorable to
Plaintiffs, the Court concludes that Plaintiffs' first amended
petition sets out sufficient factual detail to overcome a Rule
12(b)(6) challenge. Although Plaintiffs' allegations certainly could
have been more detailed, they nevertheless suggest a reasonable
possibility of overcoming the immunity provided to the Plyant
defendants under section 83.003. Plaintiffs have alleged that Brett
Plyant and his companies marketed the Accufuser pain pump used in
Helm's surgery to the hospital and Helm's surgeon and, in so doing,
made representations that the pump was safe to use in the shoulder
for the purpose of delivering continuous pain medication. Plaintiffs
allege that these representations were incorrect, were relied upon
by Helm and his surgeon, and caused Helm's injuries.
concludes that Plaintiffs allegations are sufficient to suggest a
reasonable possibility of recovery on their claims. Cf. Crutchley
v. I-Flow, Inc., No. 09-35, 2009 WL 650358, *1, 3 (E.D. Pa. March
12, 2009) (concluding that similar allegations were sufficient to
state "a colorable state claim" against the nondiverse defendant such
that his joinder "was not necessarily [improper]"); Manfrey v. I-Flow
Corp., No. 09-0034, 2009 WL 636349, *1-2 (E.D. Pa. March 9, 2009)
(concluding that allegations that the nondiverse defendant "made false
statements to physicians regarding the safety of the pain pumps while
knowing that those physicians would rely on the allegedly false
representations" were sufficient "to state a colorable claim" against
ORDER GRANTING AMENDED MOTION TO REMAND - Page 8
the nondiverse defendant so as to destroy diversity); Ryles v. I-Flow
Corp., No. 10-1315-AA, 2011 WL 669124, * (D. Or. Feb. 17, 2011)
(concluding that similar allegations against a non-manufacturing painpump seller sufficiently stated a claim so as to defeat an improper
joinder argument). Contrary to AstraZeneca's argument, the alleged
representation with which Plyant has been charged is not simply that
the product was safe; rather, it is that the product was safe for
use in the shoulder to provide continuous pain medication. The pain
pump thus might have performed well in other parts of the body, but,
as a result of the Plyant defendants' alleged representations, was
placed in a part of the body where it could not be safely used.2
Even if the Court conducted a summary inquiry, its conclusion
would be the same. AstraZeneca requests the Court to give sole weight
to the testimony of defendant Plyant that the only representations
he made about the pain pump were that it was a "good" product and
that he "had no reason to believe [it] was not safe." (AstraZeneca's
Resp. (doc. 75) 6.) That testimony is, however, controverted by the
affidavit of Helm's surgeon, Dr. McKenna, who avers that Plyant told
him that "the Accufuser pain pump was safe to use in the shoulder
joint after shoulder surgery to provide continuous injection of
aesthetics such as marcaine." (Pls.' App. (doc. 54) 81.) The Court
And thus the allegations in this case differ from those in In re Yamaha
Motor Corp Rhino ATV Products Liability Litigation, No. 3:09-MD-2016-JBC, 2009
WL 939279, *3-4 (W.D. Ky. April 6, 2009), which was cited by AstraZeneca. In
that case, the nonmanufacturing seller stated that his vehicle was "safer than
a four wheeler." The court concluded that this statement was merely an assurance
that the product was not defective and thus did not "'independently contribute
 to the harm caused by the defective product.'" Id. at *4 (quoting Rubin v.
Daimler Chrysler Corp., No. H0-44021, 2005 WL 1214650, *9 (S.D. Tex. May 20,
2005)). Here, the Plyant defendants' alleged representation was that the product
was safe to use in the shoulder joint to deliver continuous pain medication.
ORDER GRANTING AMENDED MOTION TO REMAND - Page 9
cannot resolve this type of fact question regarding whether Plyant
made such a representation and the contents thereof (i.e. the merits
of the claim) in a summary inquiry in the improper-joinder context.
If the question were whether Plyant distributed the product, a summary
inquiry might be appropriate.
But a summary inquiry in the
jurisdictional context is not an appropriate vehicle to determine
whether, and the extent to which, actionable representations about
a product were made when it was sold.
See Smallwood, 385 F.3d at
573-74 (stating that "summary inquiry is appropriate only to identify
plaintiff’s recovery against the in-state defendant").
For the foregoing reasons, the Court concludes that AstraZeneca
has failed to carry its burden of demonstrating that the Plyant
jurisdiction is lacking, and this case is REMANDED to the 271st
Judicial District Court, Wise County, Texas.
SIGNED July 27, 2011.
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
ORDER GRANTING AMENDED MOTION TO REMAND - Page 10
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