Walton v. 3M Company et al
Filing
17
MEMORANDUM AND ORDER denying 7 MOTION to Remand, terminating 11 MOTION for Oral Hearing re: 7 MOTION to Remand.(Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TOMMY WALTON,
§
§
Plaintiff,
§
§
v.
§
§
3M COMPANY, ARIZANT HEALTHCARE, §
INC., and ROBERT PRESTERA,
§
§
Defendants.
§
CIVIL ACTION NO. H-13-1164
MEMORANDUM AND ORDER
Pending is Plaintiff Tommy Walton’s Motion to Remand (Document
No. 7).
After carefully considering the motion, response, reply,
and the applicable law, the Court concludes for the reasons that
follow that the motion should be denied.
I.
Background
This is a product liability personal injury case in which
Plaintiff Tommy Walton (“Plaintiff”) alleges that he was injured
during hip-implantation surgery when a defective medical device
used by his anesthesiologist introduced contaminants into his open
surgical site.1
Plaintiff alleges that the defective device,
called the Bair Hugger Forced Air Warming Blanket (“Bair Hugger
FAW”), was designed, manufactured, and marketed by 3M Company
(“3M”) and Arizant Healthcare, Inc. (“Arizant”).
Plaintiff also
alleges that Robert Prestera (“Prestera”), a district sales manager
1
Document No. 1, ex. A ¶¶ 14, 16 (Orig. Pet.).
for Arizant and 3M, supplied the device to Houston Orthopedic
Surgical Hospital where Plaintiff had his surgery.2
Plaintiff
brought suit against all three Defendants in state court, asserting
manufacturing and design defects, breach of express and implied
warranties, negligence, violations of the Texas Deceptive Trade
Practices
Act,
failure
to
warn,
negligent
misrepresentation,
fraudulent misrepresentation, and fraudulent concealment.
3M and Arizant removed this case to federal court, contending
that this Court has jurisdiction based on complete diversity of
citizenship because Prestera was improperly joined as a defendant.3
Plaintiff moves to remand, contending that Prestera is a proper
defendant in this suit.4
II.
A.
Motion to Remand
Improper Joinder Standard
To establish that a non-diverse defendant has been improperly
joined, the removing party must prove either (1) actual fraud in
2
Id. ¶¶ 17, 23.
Plaintiff asserts the “Bair Hugger FAW
consists of a portable heater/blower connected by a flexible hose
to a disposable blanket that is positioned over . . . surgical
patients. The system warms patients during surgery by blowing hot
air on them.” Id. ¶ 18. This hot air escapes and creates air flow
currents which deposit “bacteria from the floor of the surgical
room into the surgical site.” Id. ¶ 19.
3
Document No. 1. 3M is a citizen of Delaware and Minnesota
and Arizant is a citizen of Minnesota, while Plaintiff and Prestera
are both citizens of Texas. Id. ¶¶ 11-14.
4
Document No. 7.
2
the pleading of jurisdictional facts, or (2) the plaintiff’s
inability to establish a cause of action against the non-diverse
defendant.
Cir.
2003).
Ross v. Citifinancial, Inc., 344 F.3d 458, 461 (5th
Here,
Defendants
do
not
assert
that
Plaintiff
fraudulently pleaded jurisdictional facts, so only the second prong
is at issue. Under this prong, “[t]he court must determine whether
there is arguably a reasonable basis for predicting that state law
might impose liability” on the non-diverse defendant.
Id. at 462.
A reasonable basis for state liability requires that there be a
reasonable possibility of recovery, not merely a theoretical one.
Id.
The Fifth Circuit has explained:
[T]he standard for evaluating a claim of improper joinder
is similar to that used in evaluating a motion to dismiss
for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). The scope of the inquiry for improper joinder, however, is broader than that for Rule
12(b)(6) because the court may “pierce the pleadings” and
consider summary judgment-type evidence to determine
whether the plaintiff has a basis in fact for the claim.
Campbell v. Stone Ins., Inc., 509 F.3d 665, 669 (5th Cir. 2007)
(citing Ross, 344 F.3d at 462-63); accord Travis v. Irby, 326 F.3d
644, 648-49 (5th Cir. 2003).
Whether or not to “pierce the
pleadings” is discretionary, and may be appropriate in order to
identify the presence of discrete and undisputed facts that would
preclude a plaintiff’s recovery against the non-diverse defendant.
Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 574 (5th Cir.
2004).
The focus of this summary inquiry must be on whether the
3
defendant was improperly joined in order to defeat diversity, not
on the overall merits of the plaintiff’s case.
Id. at 573.
The party claiming improper joinder bears a “heavy” burden of
persuasion.
Id.
petition
considered
are
All factual allegations in the state court
in
the
light
most
favorable
to
the
plaintiff, Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th
Cir. 2005), and contested issues of fact and any ambiguities in
state law must be resolved in favor of remand.
Gasch v. Hartford
Accident & Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007).
B.
Analysis
The
entirety
of
Plaintiff’s
specific
allegations
against
Prestera are that he is a “district manager for Defendants 3M and
Arizant,” that he “supplied Houston Orthopedic Surgical Hospital
with the Bair Hugger FAW used on Plaintiff,” that he “works from an
office
in
Katy,
Texas,”
that
he
“failed
to
inform
Houston
Orthopedic Surgical Hospital or the Plaintiff of the risks inherent
in using the Bair Hugger FAW, including the machines’ propensity to
cause infections in implant surgeries,” and that he “represented to
Houston Orthopedic Surgical Hospital and the public that the Bair
Hugger FAW was safe for use in implant surgeries when it is not.”5
5
Document No. 1, ex. A ¶¶ 23, 25-26. Plaintiff also alleges
that “Defendants have been aware of the pathogenic contamination of
the airflow paths of Bair Hugger FAW blowers since at least 2009.”
Id. ¶ 22.
4
Defendants produce Prestera’s affidavit, which Plaintiff does
not controvert, verifying among other things that he “did not
personally sell or distribute Bair Hugger FAW devices to Houston
Orthopedic
Surgical
Hospital,”
that
he
“had
no
role
in
the
development of any sales or promotional materials concerning the
Bair Hugger FAW device,” that he is not aware “of any defect
associated with the Bair Hugger FAW device,” that he “was not aware
of any defects associated with the Bair Hugger FAW device, as
alleged by Plaintiff, prior to or at the time of Plaintiff’s
surgery,” that he “did not make any statements or representations
to Houston Orthopedic Surgical Hospital personnel, or Plaintiff,
concerning any issues related to the safety of the Bair Hugger FAW
device,” and that he has “never met Tommy Walton, the Plaintiff in
this case, nor have I ever made any oral or written statements or
representations to him.”6
On
this
uncontroverted
record,
there
is
no
reasonable
possibility that Prestera can be held liable for failure to inform
the hospital or Plaintiff about the alleged risks of the Bair
Hugger FAW.
Moreover, Prestera in any event did not have an
independent duty to warn.
See Morrow v. Wyeth, Civ. A. B-05-209,
2005 WL 2621555, at *4-6 (S.D. Tex. Oct. 13, 2005) (Tagle, J.)
(finding sales representatives had no duty to warn separate from
those of corporate defendants, and thus the sales representatives
6
Document No. 9, ex. A ¶¶ 7, 8, 10.
5
were
improperly
joined);
Id.
at
*4
(“Under
Texas
law,
both
negligence generally and the duty to warn specifically are duties
of the corporation that do not create an independent duty in the
employee.”) (citing Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex.
1996).
Plaintiff argues that Prestera could be liable if he made
affirmative misrepresentations.
See Kingston v. Helm, 82 S.W.3d
755, 759 (Tex. App.–Corpus Christ 2002, pet. denied.) (“The law is
well-settled that a corporate agent can be held individually liable
for fraudulent statements or knowing misrepresentations even when
they
are
made
corporation.”).
in
the
capacity
of
a
representative
of
the
Plaintiff must plead and show something besides a
theory, however, in the face of uncontroverted evidence that
Prestera did not make any misrepresentations to hospital personnel
or to Plaintiff concerning the safety of the Bair Hugger FAW
device.7
A
contrary
to
bald,
conclusory
verified
allegation
evidence
of
demonstrating
misrepresentation
there
was
none,
provides no reasonable basis to predict that Plaintiff will be able
to establish that Prestera is liable.
See Badon v. R J R Nabisco
Inc., 224 F.3d 382, 393-94 (5th Cir. 2000) (finding no error in
district court’s determination that conspiracy claim against instate
defendants
was
fraudulent
where
defendants
produced
affidavits that they were not involved in conspiracy and plaintiffs
7
Document No. 9, ex A ¶ 7 (Prestera Aff.).
6
failed to produce any controverting evidence).8
Accordingly, the
Court finds that Prestera was improperly joined.
III.
Order
Based on the foregoing, it is
ORDERED
that
Plaintiff
Tommy
Walton’s
Motion
to
Remand
(Document No. 7) is DENIED.
The Clerk will enter this Order, providing a correct copy to
all counsel of record.
SIGNED at Houston, Texas, on this 22nd day of July, 2013.
____________________________________
EWING WERLEIN, JR.
UNITED STATES DISTRICT JUDGE
8
Plaintiff relies on Carrion v. Ethicon Endo-Surgery, Inc.,
in which the court found that there was a reasonable possibility
that a non-diverse medical device sales representative breached an
independent duty of care to the decedent and granted the
plaintiff’s motion to remand. Civ. A. No. C-11-19, 2011 WL 649596
(S.D. Tex. Feb. 11, 2011) (Jack, J.). In Carrion, however, it was
alleged that the representative personally marketed and sold the
allegedly defective device and that he himself inspected it and
failed to warn the hospital or surgeon that it was unsafe. Id. at
*4. In this case, however, Plaintiff makes no allegations that
Prestera personally inspected the Bair Hugger FAW at issue. See
Document No. 1, ex. A ¶¶ 23-26.
Moreover, Defendants’
uncontroverted verified evidence is that Prestera did not
personally sell or distribute Bair Hugger FAW devices to the
hospital, and that Prestera made no representations to hospital
personnel or to Plaintiff regarding the device’s safety. Document
No. 9, ex. 1 ¶¶ 7-8. Carrion is therefore inapplicable.
7
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