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From Health Law Daily, July 23, 2013

Remand of products liability action denied due to improperly joined non-diverse defendant

By Harold M. Bishop, JD

Remand of a products liability action to state court was denied because the district sales manager of the allegedly offending medical device manufacturer was improperly joined as a defendant (Walton v 3M Company, July 22, 2013, Werlein, E). While a corporate agent may be individually liable for fraudulent statements or knowing misrepresentations, the complaining party must plead and show something besides a conclusory allegation of misrepresentation. This is especially true when verified evidence demonstrates that the corporate agent made no such statements or misrepresentations. The court found there was no reasonable basis by which the sales manager could be held liable. Removal to federal district court was upheld.

Background. Tommy Walton (Walton) brought this action alleging he was injured during hip-implantation surgery when a defective medical device used by his anesthesiologist introduced contaminants into his open surgical site. The allegedly defective device, the Bair Hugger® Forced Air Warming Blanket was designed, manufactured, and marketed by 3M Company and Arizant Healthcare, Inc. Walton also alleged that Robert Prestera, a district sales manager for Arizant and 3M, supplied the device to Houston Orthopedic Surgical Hospital where Plaintiff had his surgery.

Walton 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 the case to federal court, contending that the federal court had jurisdiction based on complete diversity of citizenship because Prestera was improperly joined as a defendant. 3M is a citizen of Delaware and Minnesota and Arizant is a citizen of Minnesota, while Walton and Prestera are both citizens of Texas.

Analysis. To establish that Prestera had been improperly joined, 3M and Arizant needed to prove either (1) actual fraud in the pleading of jurisdictional facts, or (2) Walton’s inability to establish a cause of action against Prestera (the non-diverse defendant). 3M and Arizant did not assert that Walton fraudulently pleaded jurisdictional facts, so only the second prong of the test was at issue. Under this prong, the court must determine whether there was a reasonable possibility of recovery under state law.

Uncontroverted affidavit. 3M and Arizant produced an affidavit from Prestera, which Walton failed to controvert, verifying that: (1) he did not personally sell or distribute the device to Houston Orthopedic Surgical Hospital; (2) he had no role in the development of any sales or promotional materials concerning the device; (3) he was not aware of any defect associated with the device; (4) he did not make any statements or representations to Houston Orthopedic Surgical Hospital personnel or Walton concerning any issues related to the safety of the device; and (5) he has never met Tommy Walton nor did he ever made any oral or written statements or representations to Walton.

Conclusion. Based on this record, the court found that there was no reasonable possibility that Prestera could be held liable for failure to inform the hospital or Walton about the alleged risks of the device. Moreover, the court determined that Prestera did not have an independent duty to warn under Texas case law. Finally, conclusory allegations by Walton of affirmative misrepresentations made by Prestera, which are contrary to his unchallenged affidavit, could not provide a reasonable basis to establish liability. Walton’s motion to remand to state court was denied.

The case number is H-13-1164.

Attorneys: Christopher W. Wasson (Pepper Hamilton LLP) for 3M Company and Arizant Healthcare Inc.

Companies: 3M Company; Arizant Healthcare Inc.

MainStory: TopStory CaseDecisions PLDeviceNews TexasNews

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