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Establishing Diversity in Medical Device Litigation
A medical device manufacturer served with a product liability lawsuit in state court often prefers to be in federal court, but diversity jurisdiction require-
ments cannot be met because a local hospital that purchased the device and supplied it for use on the plaintiff-patient is a non-diverse co-defendant.
A large percentage of medical devices is designed for use by physicians only and are often single-use, sterile, disposable instruments. These devices are commonly purchased by a hospital at a treating physician's request and kept in stock until needed for a specific procedure. If an untoward event gives rise to a subsequent product liability lawsuit, the hospital is frequently named as a co-defendant.
In cases involving single-use, disposable instruments, the non-diverse hospital might be another species of fraudulently joined defendants. See, e.g., Smith v. Wyeth, Inc., 488 F. Supp. 2d 625, 630 (W.D. Ky. 2007) (fraudulently joined pharmacy companies). In many jurisdictions, the hospital's alleged liability for buying and furnishing the device may be barred by so-called “middleman” or “sealed container” doctrines, rendering plaintiff's claim against the hospital non-actionable.
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