Bartlett et al v. Boston Scientific Miami Corporation et al

Filing 28

MEMORANDUM OPINION AND ORDER Plaintiffs' 14 MOTION for Remand is GRANTED insofar as this case is REMANDED to the 19th Judicial Circuit Court of Florida in Martin County, Florida; and Plaintiffs' 27 MOTION for Hearing and/or Ruling on Motion for Remand is DENIED AS MOOT. Signed by Judge Joseph R. Goodwin on 11/20/2015. (cc: Clerk of the Judicial Panel on Multidistrict Litigation; counsel of record; any unrepresented party) (ts)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
DIXIE BARTLETT and LARRY BARTLETT,
her husband,
Plaintiffs,
vs.

Civil Action No. 2:13-cv-14850

BOSTON SCIENTIFIC MIAMI
CORPORATION; MARTIN MEMORIAL
MEDICAL CENTER, INC.;
KATHY SANTORIELLO, M.D.;
KATHY SANTORIELLO, M.D., P.A.; and
HEALTH RENEW MD, INC.,
Defendants.
/

MEMORANDUM OPINION AND ORDER
Pending before the court is the plaintiff’s Motion to Remand to the 19th Judicial Circuit of
Florida, filed July 30, 2013. (Pl.’s Mot. to Remand, [ECF No. 14]). The parties have responded
and replied. Also pending is plaintiff’s Motion for Hearing and/or Ruling, filed November 11,
2015. (Pl.’s Mot. for Hr’g/Ruling, [ECF No. 27]). For the reasons set forth below, the Motion to
Remand is GRANTED, and the Motion for Hearing and/or Ruling is DENIED as moot.

I. Relevant Background
The plaintiffs, Dixie Bartlett and Larry Bartlett (“Bartletts”), filed this action in the Circuit
Court of Martin County, Florida on May 24, 2013. (Notice of Removal, [ECF No. 5]). This case
resides in one of seven MDLs assigned to me by the Judicial Panel on Multidistrict Litiga tio n
concerning the use of transvaginal surgical mesh to treat pelvic organ prolapse (“POP”) and stress

urinary incontinence (“SUI”). Specifically, this case is one of over eighteen thousand currently
pending against defendant Boston Scientific Corporation (“BSC”)1 in the BSC MDL, MDL 2326.
In the present action, Ms. Bartlett was implanted with a “Pelvic Floor Lift and Sling Advantage
Kit,” manufactured by BSC, while under the medical care and treatment of defendant Dr. Kathy
Santoriello, M.D. (“Dr. Santoriello”). (State Court Complaint, Ex. B, [ECF No. 1]). The plaintif fs
additionally joined Dr. Santoriello’s two corporate entities, “Kathy Santoriello, M.D., P.A.” and
“Health Renew, M.D., P.A.,” (collectively referred to as “Santoriello Corporate Defendants”) as
well as Martin Memorial Medical Center, Inc. (“Martin Memorial”) as defendants in the instant
action. (Notice of Removal, [ECF No. 5]).
The Bartletts’ original Complaint asserts ten separate counts: Counts I-IV assert claims of
negligence, strict products liability, fraudulent concealment and fraudulent misrepresenta tio n
against BSC. (State Court Complaint, Ex. B, [ECF No. 1]). Counts V asserts a negligence claim
against Martin Memorial. (Id.) Counts VI-X assert negligence and medical malpractice claims
against the Santoriello Defendants. (Id.)
On June 4, 2013, BSC filed a Notice of Removal in the United States District Court for the
Southern District of Florida based on a theory of diversity jurisdiction. (Notice of Removal, [ECF
No. 5]). Subsequently, on June 19, 2013, this litigation was transferred to the Southern District of
West Virginia for consolidated pretrial proceedings as part of the BSC MDL, MDL 2326.
(Conditional Transfer Order, [ECF No. 9]).
According to BSC, removal was proper in this case based upon diversity jurisdictio n.
(Notice of Removal at 3-4, [ECF No. 5]). The Bartletts are now and were, at the time of the filing

In their Complaint and Motion to Remand, plaintiffs incorrectly name BSC as “Boston Scientific Miami
Corporation.” However, both parties have acknowledged subsequently during the litigation that the intended
defendant is BSC. (Notice of Removal, [ECF No. 5]).
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of this action, citizens of the State of Florida and BSC is a Delaware corporation with its principa l
place of business in Massachusetts. (Id. at 3). While Dr. Santoriello, the Santoriello Corporate
Defendants, and Martin Memorial are now and were, at the commencement of this action, citize ns
of Florida, BSC contends that the citizenship of these defendants is insufficient to destroy complete
diversity because the non-BSC defendants in this instant case are fraudulently joined and/or
misjoined. (Id. at 5-7). Therefore, according to BSC, the lack of complete diversity due to allegedly
fraudulently joined or misjoined parties does not defeat complete diversity under 28 U.S.C. §
1441(b). (Id.)
On July 30, 2013, the plaintiffs filed a Motion to Remand to the 19th Judicial Circuit Court
of Martin County, Florida, arguing that, in relevant part, Dr. Santoriello was properly joined as a
defendant in this suit because the plaintiffs’ claims against Dr. Santoriello and BSC are sufficie ntly
related. (Pl.’s Mot. to Remand, [ECF No. 14]). Thus, according to the plaintiffs, complete diversity
does not exist, and the case should be remanded to Florida state court.2 In opposition to the
Plaintiff’s Motion to Remand, BSC clarified their original argument and posited that Dr.
Santoriello and the Santoriello Corporate Defendants were fraudulently misjoined because their
claims against these defendants “are wholly unrelated to the products liability claims against BSC
and were joined simply for the purpose of preventing removal.” (Opp. to Pl.’s Mot. to Remand, 6,
[ECF No. 16]). Additionally, BSC alleges that Martin Memorial was fraudulently joined in this
action because no claim could successfully be asserted against Martin Memorial in Florida state
court. (Id. at 8-11).

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Plaintiffs also asserted other theories as to why this court does not possess subject-matter jurisdiction based upon a
theory of diversity jurisdiction pursuant to 28 U.S.C. § 1332 that is necessary to hear this case. As explained infra,
these arguments do not need to be addressed to reach this ruling and, thus, are largely not discussed.

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II. Legal Standards for Removal, Remand and Fraudulent Misjoinder
Under 28 U.S.C. § 1407, this court is empowered to rule on pre-trial motions in MDL suits.
Furthermore, “[w]hen analyzing questions of federal law, the transferee court should apply the law
of the circuit in which it is located. When considering questions of state law, however, the
transferee court must apply the state law that would have applied to the individual cases had they
not been transferred for consolidation.” In re Temporomandibular Joint (TMJ) Implants Prods.
Liab. Litig., 97 F.3d 1050, 1055 (8th Cir. 1996) (internal citations omitted); see Toll Bros., Inc. v.
Dryvit Sys., Inc., 432 F.3d 564, 568 n.4 (4th Cir. 2005) (applying Connecticut state law in
transferred multidistrict litigation case based on diversity jurisdiction and citing to In re
Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 97 F.3d at 1055); Bradley v. United
States, 161 F.3d 777, 782 n.4 (4th Cir. 1998); see also 15 Charles A. Wright et al., Federal Practice
and Procedure, § 3866 (3d ed. 2009). Thus, this court will employ the law of the Fourth Circuit to
analyze these issues of federal law.
“The district courts shall have original jurisdiction of all civil actions where the matter in
controversy exceeds…$75,000…and is between citizens of different states.” 28 U.S.C. § 1332(a).
Defendants in a civil action in state court may seek to remove the case to the appropriate United
States District Court where such action is pending on the basis of diversity jurisdiction unless “any
of the parties in interest properly joined and served as defendants is a citizen of the State in which
such action is brought.” 28 U.S.C. § 1441(b)(2). “Because removal jurisdiction raises significa nt
federalism concerns, we must strictly construe removal jurisdiction. If federal jurisdiction is
doubtful, a remand is necessary.” Mulcahey v. Columbia Organic Chemicals Co., 29 F.3d 148,
151 (4th Cir. 1994) (internal citations omitted).

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“Fraudulent joinder and fraudulent misjoinder are two distinct legal doctrines that provide
exceptions to the well-pled complaint rule as it applies to removal based on diversity jurisdic tio n
by allowing courts to disregard the citizenship of certain parties.” Wyatt v. Charleston Area Med.
Ctr., Inc., 651 F.Supp.2d 492, 496 (S.D.W. Va. 2009).
Explaining further, I wrote in Wyatt:
Fraudulent joinder is applicable where a defendant seeking removal argues that
other defendants were joined when there is no possible successful cause of action
against those defendants or where the complaint pled fraudulent facts. Fraudulent
misjoinder, on the other hand, is an assertion that claims against certain defendants,
while provable, have no real connection to the claims against other defendants in
the same action and were only included in order to defeat diversity jurisdiction and
removal.
Id (internal citations omitted). Additionally, many courts have imposed a heightened standard such
that those courts will not “hold that mere misjoinder is fraudulent joinder.” Tapscott v. MS Dealer
Service Corp., 77 F.3d 1353, 1360 (11th Cir. 1996), abrogated on other grounds by, Cohen v.
Office Depot, 204 F.3d 1069 (11th Cir. 2000). In Wyatt, I joined many other courts in finding that
a misjoinder must rise to the level of “egregious” to constitute fraudulent misjoinder. See, e.g.,
Wyatt, 651 F.Supp.2d at 496-99 (Stating “something more than mere misjoinder of parties may be
required to find fraudulent joinder.”); see also Ashworth v. Albers Medical, Inc., 395 F.Supp.2d
(S.D.W. Va. 2005); Ash v. Providence Hosp., 2009 WL 424586 (S.D. Ala. 2009).
In Ashworth v. Albers Medical, Inc., Judge Copenhaver, following the approach of the 11th
Circuit in Tapscott, found that when analyzing fraudulent misjoinder “the issue is whether the
joinder of the defendants is permissible or whether that joinder is asserted for the sole purpose of
defeating the diverse defendant’s right to removal.” Ashworth, 395 F.Supp.2d at 411. Rule 20 of
the Federal Rules of Civil Procedure governs permissive joinder and, in relevant part, provides:
Persons…may be joined in one action as defendants if: (A) any right to relief is
asserted against them jointly, severally, or in the alternative with respect to or
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arising out of the same transaction, occurrence, or series of transactions or
occurrences; and (B) any question of law or fact common to all defendants will
arise in the action.

Fed. R. Civ. P. 20(a)(2). See also Wyatt, 651 F.Supp.2d at 496-97 (applying Fed.R.Civ.P. 20 to
analogous case facts); Ashworth, 395 F.Supp.2d at 411-12 (utilizing same legal analytica l
framework as Wyatt). Simply put, I must decide whether there is a “sufficient factual nexus”
between the claims asserted against the different defendants to satisfy the Rule 20 joinder standard.
Wyatt, 651 F.Supp.2d at 498.
In Wyatt, a West Virginia couple filed suit against a Minnesota medical device company
and also against their local West Virginia health care providers that were involved in the
procedures and follow-up care. The Wyatts alleged that the medical device, a defibrillator, was
defective and that the local health care providers were negligent in providing care and treatment
following the device’s malfunction. Id. at 493-95. In remanding the case back to the state courts
in West Virginia, I found that all of the Wyatt’s claims for relief arouse out of the same occurrence:
“Ms. Wyatt’s surgery and the after effects of that surgery.” Id. at 498.
In contrast to Wyatt, the Ashworth court found a case of fraudulent misjoinder and severed
the claims against the improperly joined party into a separate trial. By so severing, the Ashworth
court ensured that there was complete diversity among the remaining parties. Ashworth involved
a case where a plaintiff brought an action in West Virginia state court against a drug manufacturer
and pharmacy seeking to recover for injuries resulting from being provided counterfe it
LIPITORT M pills. Ashworth, 395 F.Supp.2d at 398-99. The Ashworth court found that the case
against the drug company and Rite Aid, the pharmacy from which the plaintiff purchased the
counterfeit pills, were fraudulently misjoined by the plaintiff. According to the Ashworth court:

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Plaintiff's claim against non-diverse Rite Aid concerns a written request for medical
records and a purported failure on the part of Rite Aid to comply with that
request…. Rite Aid's liability under the statute does not turn on any resolution of
whether any of the tablets sold to and consumed by plaintiff were counterfe it.
Rather, the inclusion of non-diverse Rite Aid serves to unfairly defeat the diverse
defendants' right to have the action against them heard in this court. Inasmuch as
there is no common factual or legal questions governing the claims, the court finds
that Rite Aid is not properly joined in this action.
Id. at 412.

III. Analysis
As in Wyatt and Ashworth, this court must determine whether subject-matter jurisdic tio n
exists necessary to hear this case. BSC asserts that this court should have diversity jurisdic tio n
pursuant to 28 U.S.C. § 1332. BSC further alleges that the Bartletts fraudulently misjoined Dr.
Santoriello as a defendant in this case for the sole purpose of defeating complete diversity. (Opp.
to Pl.’s Mot. to Remand, 6 [ECF No. 16]). The Bartletts, however, posit that as they are citize ns
of Florida and Dr. Santoriello is a citizen of Florida, there is not complete diversity between the
parties. Therefore, according to the Bartletts, if Dr. Santoriello is a properly joined defendant, the
case should be remanded because this court does not possess the proper subject-matter jurisdic tio n
to hear this case.
In order to determine whether I have the necessary subject-matter jurisdiction to hear this
case, I must determine whether the claims against defendants BSC and Dr. Santoriello arise “out
of the same transaction, occurrence, or series of transactions or occurrences” and whether “any
question of law or fact common to all defendants will arise in the action.” Fed.R.Civ.P. 20(a); see
also Wyatt, 651 F.Supp.2d at 498.
First, I FIND that all of the plaintiffs’ claims arise out of the same transaction or
occurrence. Ms. Bartlett had a product manufactured by defendant BSC implanted into her body
during a surgery at Martin Memorial Medical Center. Immediately thereafter, Ms. Bartlett alleges
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that she suffered lasting and substantial injury as a result of the surgery. (State Court Complaint,
Ex. B, ¶¶ 17-33 [ECF No. 1]). According to the Plaintiffs’ Complaint, Ms. Bartlett’s injuries were
caused by and resulted from the negligence of all of the defendants. The present case is to be
contrasted with Ashworth, where the plaintiff’s claim against one defendant concerned that
defendant’s failure to comply with a records request and where, against the other defendant, the
plaintiff sought damages for manufacturing and selling counterfeit prescription pills. In the instant
matter, as in Wyatt, the plaintiffs’ alleged injuries and bases of their claims for relief all result from
the same occurrence: Ms. Bartlett’s surgical implantation of BSC’s “Pelvic Floor Lift and Sling
Advantage Kit” by Dr. Santoriello at Martin Memorial Medical Center and the alleged after-effects
caused by BSC’s product.
Second, I FIND that at least one common question of law or fact exists between the claims
against BSC and Dr. Santoriello. Among other claims not necessary for discussion in the present
analysis, the Bartletts allege that the common occurrence that spawned this suit, Ms. Bartlett’s
surgery, caused injury for which the plaintiffs seek damages. Taking the plaintiffs’ allegations as
true, the Bartletts clearly state that the injuries suffered were caused by all defendants. (State Court
Complaint, Ex. B, ¶¶ 17-33, 34-43, and 90-95 [ECF No. 1]). Thus, as the plaintiffs aptly note, if
the court were to sever the trials against defendants BSC and Dr. Santoriello, “Boston Scientific
[could] defend itself by claiming that its product was not defective but instead was incorrectly
implanted by the doctor” and vice versa. (Id.) This possibility for overlapping and intertwined
alleged liability on behalf of the defendants illustrates exactly why these plaintiffs should have an
opportunity to have their claims against both defendants heard within the same trial. Because I
find at least one common question of law or fact in claims against both BSC and Dr. Santoriello,
I need not consider any other possible commonalities though they may certainly exist.

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Finally, even if these discussed claims were misjoined, I would not be able to find that the
misjoinder was “so egregious as to constitute fraudulent joinder.” Tapscott, 77 F.3d at 1360
(Defining the approach to the doctrine of fraudulent misjoinder that this court then follows in
Wyatt). This is not the case of Ashworth where a claim against a non-diverse defendant was so
unrelated to the underlying transaction or occurrence that it was clear that the joinder of the nondiverse party was effectuated primarily to destroy complete diversity. Ashworth, 395 F.Supp.2d at
412. After their case was removed to federal court, the Bartletts did not seek to amend their
Complaint and add Dr. Santoriello as a defendant in the litigation merely for the sake of defeating
diversity. Rather, from the outset, the plaintiffs have laid claims against Dr. Santoriello and BSC,
which, taken as true, are undoubtedly intertwined. I find that Dr. Santoriello is properly joined as
a defendant in this case. Even if reasonable minds were to differ, it cannot be said that the joinder
of Dr. Santoriello in this action is “egregious.”
IV. Conclusion
Because I FIND that Dr. Santoriello was not fraudulently misjoined, I also FIND that
complete diversity does not exist because both the plaintiffs, the Bartletts, and defendant Dr.
Santoriello are citizens of the State of Florida. Accordingly, under the framework of 28 U.S.C. §
1332, this court does not have jurisdiction over this case. The plaintiffs’ Motion to Remand is
therefore GRANTED insofar as this case is REMANDED to the 19th Judicial Circuit Court of
Florida in Martin County, Florida. With remand, I do not need to address the plaintiffs’ other
arguments for remand.3 Further, this court does not address whether defendant Martin Memorial
was fraudulently joined because this case lacks complete diversity with or without Martin

These arguments relate to the “amount in controvers y” requirement for diversity jurisdiction and whether there was
unanimous consent amongst the defendants to remove the case. (Pl.’s Mot. to Remand, [ECF No. 14])
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Memorial’s presence in the litigation.

The plaintiffs’ subsequent Motion for Hearing and/or

Ruling is DENIED as moot. (Pl.’s Mot. for Hr’g/Ruling, [ECF No. 27]).
The court DIRECTS the Clerk to send a copy of this order to counsel of record and any
unrepresented party.

ENTER: November 20, 2015

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