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From Health Law Daily, November 1, 2017

Physician deemed not a necessary party in suit against device manufacturer

By Jeffrey H. Brochin, J.D.

A federal court in California has denied a patient’s motion for remand back to California state court in a case where an inferior vena cava (IVC) filter manufacturer had already removed twelve other IVC product liability cases to the MDL court in Indiana on the basis of fraudulent joinder. The court also granted the manufacturer’s motion to stay the proceedings pending the transfer to the MDL court in Indiana (Pierce v. Frink, October 31, 2017, Shubb, W.).

Background. On May 5, 2011, a California doctor implanted a California patient with a Gunther Tulip®, a type of IVC filter manufactured and sold by Cook Incorporated (Cook). The doctor did not contribute to the design or manufacturing of the Cook IVC filter. Cook is incorporated in, and has its principal place of business in, Indiana. The IVC filter is now tilted and perforating into the patient’s adjacent organs, placing her at risk of future migration, perforations, and/or fractures from the retained filter. Issues with the Gunther Tulip have resulted in hundreds of actions across the United States against Cook for their sale of the purportedly defective devices. The Judicial Panel on Multidistrict Litigation (JPML) has consolidated hundreds of the cases into a federal multidistrict litigation in the United States District Court for the Southern District of Indiana (MDL court), determining that centralization was appropriate.

On July 20, 2017, the patient filed suit in a California court alleging negligence by her doctor as well as alleging various strict liability and negligence claims against Cook. The case was removed to federal court on August 18th, 2017, and on August 22, 2017, the JPML issued a conditional transfer, stating that the case involves questions of fact that are common to the actions previously transferred to the Southern District of Indiana. The patient filed for remand back to state court, and Cook filed a motion to sever claims against the doctor as well as a motion to stay the case pending transfer to the MDL court.

Jurisdiction. The court first addressed the jurisdictional issue which is inherent when considering simultaneous motions to remand and stay in the MDL context. The court noted that if the jurisdictional issue appears factually or legally difficult, the court should determine whether identical or similar jurisdictional issues have been raised in other cases that have been or may be transferred to the MDL proceeding, and, if the jurisdictional issue is both difficult and similar or identical to those in cases transferred or likely to be transferred, the court should stay the action. Based on their analysis, the court determined that a stay of the proceedings was proper.

Necessary party. The court found that in light of Cook’s diversity jurisdiction arguments, removal was not plainly improper. Federal diversity jurisdiction exists when the parties are in complete diversity (as well as needing to meet the amount in controversy requirement) and the patient argued that the doctor’s California citizenship defeated complete diversity. The court noted however, that district courts have discretion under Federal Rule of Civil Procedure 21 to retain diversity jurisdiction over a case by dropping a non-diverse party if that party is not necessary and indispensable to the case under Rule 19. Citing product liability case precedent, the court concluded that the doctor appeared to be neither a necessary nor indispensable party to resolving the patient’s product liability claims. The issue was similar to jurisdictional issues in cases already transferred to the MDL court, and Cook had already removed and sought transfer of twelve other IVC filter cases on the basis of fraudulent joinder. The patient’s motion for remand alone was an insufficient basis to vacate a conditional transfer order.

Motion to stay. The court cited several reasons as to why Cook’s motion to stay proceedings should be granted, among them: a stay and deference to the MDL court are particularly appropriate when the parties contest issues that are likely to arise in other actions pending in the consolidated proceedings; the potential prejudice to the non-moving party; the hardship and inequity to the moving party if the action is not stayed; and the judicial resources that would be saved by avoiding duplicative litigation if the cases are in fact consolidated.

For the foregoing reasons, the court granted Cook’s motion to stay, and denied without prejudice the patient’s motion for a remand.

The case is No. 2:17-cv-01731-WBS-DB.

Attorneys: Pedro De La Cerda (Edwards & De La Cerda, PLLC) for Dorothy A. Pierce. Howard David Ruddell (Faegre Baker Daniels, LLP) for Cook Inc. a/k/a Cook Medical Inc., Cook Group Inc. and Cook Medical, LLC.

Companies: Cook Inc. a/k/a Cook Medical Inc.; Cook Group Inc.; Cook Medical, LLC

MainStory: TopStory CaseDecisions FDCActNews MDeviceNews PLDeviceNews SafetyNews CaliforniaNews

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