On February 6, 2018, the U.S. District Court in the Southern District of Indiana ordered remand for several Cook IVC filter cases that had been improperly removed to the multidistrict litigation from their respective state courts in South Dakota, Texas, and California.
The central question decided by District Judge Richard L. Young in IN RE: Cook Medical, Inc., IVC Filters Marketing, Sales Practices and Products Liability Litigation (MDL No. 2570) was whether medical malpractice claims against implanting physicians should be severed from the product liability claims against the manufacturer.
In each of the subject cases, the Court denied Cook’s attempt to sever the in-state defendants finding that removal was improper under the Forum Defendant Rule. As such, the Court ordered the cases remanded to their respective state court venues for trial.
In his remand orders, Judge Young cited his January 11, 2018 ruling in Berman-Cheung v. Cook Group, Inc. et al., Case No. 1:17-cv-6076.
Berman-Cheung v. Cook Group, Inc. et al.
In late 2015, Richard Cheung underwent placement of a Cook Gunther Tulip inferior vena cava (IVC) filter and, a few weeks later, died from a pulmonary embolism. Mr. Cheung’s wife and children filed an action in the Santa Clara Superior Court against the manufacturer defendants (Cook Medical and its affiliates), the implant doctor, and Stanford Healthcare alleging Mr. Cheung died as a result of severe tilting of his IVC filter.
Cook removed the action to the Northern District of California arguing that the federal court had diversity jurisdiction based on two theories: (1) the doctor/hospital should be severed from the case under Federal Rule 21; and/or (2) fraudulent misjoinder. The Cheungs then filed a motion to remand the case back to state court on the grounds that the California doctor and hospital are indispensable, non-diverse defendants that defeat diversity under the Forum Defendant Rule.
Diversity Jurisdiction and Forum Defendant Rule
Federal diversity jurisdiction requires that the parties be in complete diversity and that the amount in controversy exceed $75,000. However, removal based on diversity of citizenship is also governed by the Forum Defendant Rule, which provides: A civil action otherwise removable solely on the basis of diversity jurisdiction may not be removed if any of the defendants is a citizen of the State in which such action is brought.
In other words, the rule disallows federal removal premised on diversity where the primary rationale for diversity jurisdiction—to protect defendants against presumed bias of local courts—is not a concern because at least one defendant is a citizen of the forum state.
Holding that noncompliance with this rule is a statutory defect, Judge Young addressed the remand motion not on grounds of lack of jurisdiction, but on a statutory defect in the removal procedure.
Severance, Prejudice, and Empty Chair Defense
The Court noted that, although it may sever non-diverse, dispensable parties to retain jurisdiction, it must “carefully consider whether the dismissal of a non-diverse party will prejudice any of the parties in the litigation.” Under the facts, Judge Young found that severance would be prejudicial because Plaintiffs’ theory is based in the alternative—either the doctor and hospital are liable for negligently implanting the filter in a tilted position, or Cook is liable for a defective product that is subject to tilt, or a combination of both.
The Court reasoned that, if severed, Cook could exploit an “empty chair” defense, which could lead to inconsistent verdicts. Severance would also require Plaintiffs to litigate in two separate forums, increasing the likelihood of delay and risk of duplicative discovery.
Thus, the Court declined to grant severance of the implant doctor/hospital under Rule 21.
Fraudulent Misjoinder and Shifting of Blame
In the alternative, Cook argued the citizenship of the implant doctor/hospital should be disregarded because they were fraudulently misjoined. Fraudulent misjoinder refers to a situation where a plaintiff attempts to frustrate a defendant’s right to remove by joining a non-diverse party in violation of the joinder rule.
Applying California’s permissive joinder rule (which provides that persons may be joined in one action if there is any right to relief jointly or severally arising out of the same transaction or occurrence and if there is any common question of law or fact – identical to F.R.C.P. 20), the Court held that because [the Cheungs] are in doubt as to the person from whom they are entitled to redress, they may join two or more defendants, to determine which, if any, of the defendants is liable, and to what extent.
Plaintiifs alleged that Mr. Cheung’s death was caused by either Cook’s IVC filter, the doctor/hospital, or a combination of both. The Court observed that, to the extent each defendant tries to shift liability, the design and manufacture of the product and the doctor’s conduct will be the central issues in the litigation.
Finding that the actions of Cook, the implant physician, and the hospital all “arise out of the same transaction or occurrence,” and will likely involve common questions of fact, the Court held the doctor and hospital were not fraudulently misjoined. Accordingly, the Cheung’s case was remanded back to state court and is currently pending in the Santa Clara Superior Court.
With his series of remand rulings last week, Judge Young dealt with the same key facts and legal analysis raised in the Cheung case. He has thus definitively answered the question posed above: (1) pursuant to the Forum Defendant Rule, medical malpractice claims against in-state implanting physicians should not be severed from the product liability claims against the manufacturer; and (2) with respect to IVC filter litigation, malpractice and product liability claims arise from the same occurrence and involve common questions of fact.
State court venues arguably provide an advantage for plaintiffs because of the local jury pool and the votes required to reach a verdict. The plaintiffs in the recently remanded cases will be testing these theories as their Cook IVC filter cases respectively move forward in the state courts of South Dakota, Texas and California,
Lawyers at Paglialunga & Harris, PS are litigating cases for individuals who have experienced complications following an IVC implant. If you or somebody you know was implanted with an IVC filter, please contact our lawyers immediately for a free case consultation.