Verdicts

District Judge in Third Circuit Scuttles Third-Party Removal

Noting that the U.S. Court of Appeals for Third Circuit has not yet offered any guidance on the issue, Justice Anita B. Brody of the U.S. District Court for the Eastern District of Pennsylvania recently remanded a medical malpractice action to the Philadelphia County Court of Common Pleas after deciding that third-party defendants may not remove cases to federal court under 28 U.S.C. ' 1441. Foster v. City of Philadelphia, 2011 U.S. Dist. LEXIS 123212 (E.D. Pa. 10/25/11).

Prisoner Allen Wimberly Jr. died while in custody. The plaintiff, who is the administratrix of Wimberly's estate, brought suit in the Philadelphia County Court of Common Pleas against the doctor who treated Wimberly, Dr. Joseph Scogna. She claimed Dr. Scogna caused the deceased's death by unreasonably delaying surgery. Additional defendants were Frankford Hospital of the City of Philadelphia, and the Frankford Hospital Torresdale Campus. All of the parties are Pennsylvania residents, and the medical malpractice complaint asserts only state law claims. Subsequent to the original claim, Dr. Scogna became a third-party plaintiff by filing a joinder complaint against the City of Philadelphia and a large group of employees, medical workers, and affiliates of the Philadelphia Industrial Correctional Center and the Philadelphia Prison System (collectively, the third-party defendants). The third-party defendants are also Pennsylvania residents, but Dr. Scogna's third-party action made several federal claims; for instance, he alleged the third-party defendants violated Wimberly's civil rights. Based on these claims, the third-party defendants filed a Notice of Removal from state to federal court pursuant to 28 U.S.C. ' 1441. The plaintiff moved to have the case remanded to the Philadelphia County Court of Common Pleas pursuant to 28 U.S.C. ' 1447.

Generally, a defendant may remove a civil action from state to federal court if federal court has original jurisdiction. 28 U.S.C. ' 1441(a). Original federal jurisdiction is present if at least one of the claims involves a federal question. 28 U.S.C. ' 1331. Because the Third Circuit Court of Appeals has not yet decided the issue of third-party defendant removal of claims to federal court, Justice Brody turned for guidance to decisions in the Sixth, Seventh and Eighth Circuit Courts of Appeal, which have held that third-party defendants may not remove cases to federal court on the basis of ' 1441. See First National Bank of Pulaski v. Curry, 301 F.3d 456 (6th Cir. 2002) (“[t]he majority view is that third-party defendants are not 'defendants' for purposes of ' 1441(a)); Lewis v. Windsor Door Co., 926 F.2d 729 (8th Cir. 1991) (holding that third-party defendants were not permitted to remove a case from state to federal court); Thomas v. Shelton, 740 F.2d 478, 488 (7th Cir. 1984) (“[I]n the broad run of third-party cases ' the third-party defendant cannot remove the case under section 1441(c)”). Judge Brody also took note of a decision rendered in Gola v. City of Philadelphia, 2011 U.S. Dist LEXIS 63279 (E.D. Pa. 6/13/11), by Judge Thomas O'Neill, also of the Eastern District of Pennsylvania. In it, Judge O'Neill observed that ' 1441(c) “does not authorize removal of a case by a third party defendant because a third party claim is not 'joined with' a non-removable claim as the statute requires but instead is typically 'antagonistic to' the plaintiff's claims.” Explaining her decision to conform with these courts' conclusions on and remand to state court, Judge Brody wrote, “Although the Third Circuit has not definitively decided the issue, I am persuaded by the rulings of its sister circuits and the long-accepted practice of deferring to the Plaintiff's choice of forum by treating the Plaintiff as the master of his own complaint. See, e.g., Wood v. Prudential Ins. Co. of Am., 207 F.3d 674 (3d Cir. 2000).”

Premature Med-Mal Claim Renders Joinder Improper

Removal of this product liability claim to federal court was proper because complete diversity of citizenship was established following dismissal of medical malpractice claims against the hospital defendant, which, like the plaintiff, was a citizen of Louisiana. Robles Bush v. Thoratec Corp., 2011 U.S. Dist. LEXIS 122724 (E. D. La. 10/24/11)

In September 2008, at Tulane University Medical Center in New Orleans, the plaintiff's decedent was implanted with a Thoratec HeartMate II Left Ventricular Assist System heart pump, a device manufactured by defendant Thoratec Corp. One month later, the Food and Drug Administration (FDA) issued a warning about the device, saying that “wear and fatigue of the percutaneous lead connecting the [device] to the system controller [which] may result in damage that could interrupt pump function, require re-operation to replace the pump and potentially result in serious injury and death.” Although the patient returned to Tulane for ongoing monitoring, the plaintiff alleged that Tulane and the device's manufacturer never informed the patient about the potential product defect. In May 2010 the patient died of cardiac arrest, allegedly due to the heart pump's malfunction in the manner described in the FDA warning.

The plaintiff brought suit against Thoratec and Tulane in state court, claiming, among other things, that the decedent “began followup, examination and treatment” and that thereafter “Tulane failed to perform tests … necessary to detect damage” to the implanted device. Plaintiff and Tulane are both Louisiana residents, but Thoratec is a California company.

Tulane sought dismissal, alleging that the suit against it was premature because, in accordance with the Louisiana Medical Malpractice Act (MMA), medical malpractice claims must be reviewed by a Medical Review Panel, and an opinion must be rendered, before suit may be brought in court. La. Rev. Stat. ' 40:1299.47(A), (B)(1)(a)(i). Thoratec then removed the case to the federal district court, based on the theory that because the suit against Tulane was premature, the hospital had been improperly joined as a defendant. With Tulane out the picture, there would now be complete diversity of citizenship between the plaintiff Louisiana resident and defendant California corporation, so the federal district court had jurisdiction over the matter. The plaintiff argued for remand, saying her claims against Tulane were not ones for medical malpractice, so review under the MMA was not required and Tulane was properly joined.

The court quoted McDonal v. Abbott Labs., 408 F.3d 177, 183 (5th Cir. 2005), in the which the Fifth Circuit noted that “[t]o establish a claim for improper joinder, the party seeking removal must demonstrate either (1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court.” It was the second aspect of that test ' that there was no possibility of the plaintiff recovering against the in-state defendant (Tulane) ' on which Thoratec relied. The company asserted that since plaintiff's claim against Tulane was premature under Louisiana law, she could not possibly recover from it at this juncture.

Plaintiff pointed to the cases of Garnica v. LSU Medical Center, 744 So. 2d 156 (La. App. 4 1999) and DeRouen v. Park Place Surgical Center LLC, 37 So. 3d 525 (La. App. 3 2010), to support her case. In both, defects in medical devices were discovered after the plaintiffs were implanted with them, and they allegedly suffered injuries because those who performed their surgeries did not inform the plaintiffs of the newly discovered defects. In each of those cases, the courts declined to deem lawsuits premature because, as stated by the Fourth Circuit Court of Appeal in Garnica, “[T]he duty to notify the patient is a ministerial or clerical function and does not require any specialized training or knowledge” and that duty “did not arise from the performance of health care.”

However, the court here found that the Garnica and DeRouen holdings were distinguishable because in those cases, “the plaintiffs had been discharged from care and there was no ongoing relationship with the defendant or any medical treatment of the plaintiff after the hospitals had notice of the product issues. Here, according to the allegations in the petition, the decedent was being actively treated by Tulane at the same time Tulane allegedly had a 'ministerial' duty to notify of the product issue. Any 'ministerial' duty to transmit a warning thus arose in the context of ongoing healthcare, unlike in Garnica and DeRouen, and a breach of that duty is necessarily intertwined with Plaintiff's malpractice claim. Thus, it is appropriate to require the matter to proceed before the Medical Review Panel in the first instance.” Consequently, at this stage in the proceedings, and absent a final decision from the MMR board, Tulane could not be sued for malpractice in state court, so had been improperly joined as a defendant. Thus, removal to federal court on the basis of diversity of citizenship between the plaintiff and the sole remaining defendant, Thoratec, was appropriate.

District Judge in Third Circuit Scuttles Third-Party Removal

Noting that the U.S. Court of Appeals for Third Circuit has not yet offered any guidance on the issue, Justice Anita B. Brody of the U.S. District Court for the Eastern District of Pennsylvania recently remanded a medical malpractice action to the Philadelphia County Court of Common Pleas after deciding that third-party defendants may not remove cases to federal court under 28 U.S.C. ' 1441. Foster v. City of Philadelphia, 2011 U.S. Dist. LEXIS 123212 (E.D. Pa. 10/25/11).

Prisoner Allen Wimberly Jr. died while in custody. The plaintiff, who is the administratrix of Wimberly's estate, brought suit in the Philadelphia County Court of Common Pleas against the doctor who treated Wimberly, Dr. Joseph Scogna. She claimed Dr. Scogna caused the deceased's death by unreasonably delaying surgery. Additional defendants were Frankford Hospital of the City of Philadelphia, and the Frankford Hospital Torresdale Campus. All of the parties are Pennsylvania residents, and the medical malpractice complaint asserts only state law claims. Subsequent to the original claim, Dr. Scogna became a third-party plaintiff by filing a joinder complaint against the City of Philadelphia and a large group of employees, medical workers, and affiliates of the Philadelphia Industrial Correctional Center and the Philadelphia Prison System (collectively, the third-party defendants). The third-party defendants are also Pennsylvania residents, but Dr. Scogna's third-party action made several federal claims; for instance, he alleged the third-party defendants violated Wimberly's civil rights. Based on these claims, the third-party defendants filed a Notice of Removal from state to federal court pursuant to 28 U.S.C. ' 1441. The plaintiff moved to have the case remanded to the Philadelphia County Court of Common Pleas pursuant to 28 U.S.C. ' 1447.

Generally, a defendant may remove a civil action from state to federal court if federal court has original jurisdiction. 28 U.S.C. ' 1441(a). Original federal jurisdiction is present if at least one of the claims involves a federal question. 28 U.S.C. ' 1331. Because the Third Circuit Court of Appeals has not yet decided the issue of third-party defendant removal of claims to federal court, Justice Brody turned for guidance to decisions in the Sixth, Seventh and Eighth Circuit Courts of Appeal, which have held that third-party defendants may not remove cases to federal court on the basis of ' 1441. See First National Bank of Pulaski v. Curry , 301 F.3d 456 (6th Cir. 2002) (“[t]he majority view is that third-party defendants are not 'defendants' for purposes of ' 1441(a)); Lewis v. Windsor Door Co. , 926 F.2d 729 (8th Cir. 1991) (holding that third-party defendants were not permitted to remove a case from state to federal court); Thomas v. Shelton , 740 F.2d 478, 488 (7th Cir. 1984) (“[I]n the broad run of third-party cases ' the third-party defendant cannot remove the case under section 1441(c)”). Judge Brody also took note of a decision rendered in Gola v. City of Philadelphia, 2011 U.S. Dist LEXIS 63279 (E.D. Pa. 6/13/11), by Judge Thomas O'Neill, also of the Eastern District of Pennsylvania. In it, Judge O'Neill observed that ' 1441(c) “does not authorize removal of a case by a third party defendant because a third party claim is not 'joined with' a non-removable claim as the statute requires but instead is typically 'antagonistic to' the plaintiff's claims.” Explaining her decision to conform with these courts' conclusions on and remand to state court, Judge Brody wrote, “Although the Third Circuit has not definitively decided the issue, I am persuaded by the rulings of its sister circuits and the long-accepted practice of deferring to the Plaintiff's choice of forum by treating the Plaintiff as the master of his own complaint. See, e.g., Wood v. Prudential Ins. Co. of Am. , 207 F.3d 674 (3d Cir. 2000).”

Premature Med-Mal Claim Renders Joinder Improper

Removal of this product liability claim to federal court was proper because complete diversity of citizenship was established following dismissal of medical malpractice claims against the hospital defendant, which, like the plaintiff, was a citizen of Louisiana. Robles Bush v. Thoratec Corp., 2011 U.S. Dist. LEXIS 122724 (E. D. La. 10/24/11)

In September 2008, at Tulane University Medical Center in New Orleans, the plaintiff's decedent was implanted with a Thoratec HeartMate II Left Ventricular Assist System heart pump, a device manufactured by defendant Thoratec Corp. One month later, the Food and Drug Administration (FDA) issued a warning about the device, saying that “wear and fatigue of the percutaneous lead connecting the [device] to the system controller [which] may result in damage that could interrupt pump function, require re-operation to replace the pump and potentially result in serious injury and death.” Although the patient returned to Tulane for ongoing monitoring, the plaintiff alleged that Tulane and the device's manufacturer never informed the patient about the potential product defect. In May 2010 the patient died of cardiac arrest, allegedly due to the heart pump's malfunction in the manner described in the FDA warning.

The plaintiff brought suit against Thoratec and Tulane in state court, claiming, among other things, that the decedent “began followup, examination and treatment” and that thereafter “Tulane failed to perform tests … necessary to detect damage” to the implanted device. Plaintiff and Tulane are both Louisiana residents, but Thoratec is a California company.

Tulane sought dismissal, alleging that the suit against it was premature because, in accordance with the Louisiana Medical Malpractice Act (MMA), medical malpractice claims must be reviewed by a Medical Review Panel, and an opinion must be rendered, before suit may be brought in court. La. Rev. Stat. ' 40:1299.47(A), (B)(1)(a)(i). Thoratec then removed the case to the federal district court, based on the theory that because the suit against Tulane was premature, the hospital had been improperly joined as a defendant. With Tulane out the picture, there would now be complete diversity of citizenship between the plaintiff Louisiana resident and defendant California corporation, so the federal district court had jurisdiction over the matter. The plaintiff argued for remand, saying her claims against Tulane were not ones for medical malpractice, so review under the MMA was not required and Tulane was properly joined.

The court quoted McDonal v. Abbott Labs. , 408 F.3d 177, 183 (5th Cir. 2005), in the which the Fifth Circuit noted that “[t]o establish a claim for improper joinder, the party seeking removal must demonstrate either (1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court.” It was the second aspect of that test ' that there was no possibility of the plaintiff recovering against the in-state defendant (Tulane) ' on which Thoratec relied. The company asserted that since plaintiff's claim against Tulane was premature under Louisiana law, she could not possibly recover from it at this juncture.

Plaintiff pointed to the cases of Garnica v. LSU Medical Center , 744 So. 2d 156 (La. App. 4 1999) and DeRouen v. Park Place Surgical Center LLC , 37 So. 3d 525 (La. App. 3 2010), to support her case. In both, defects in medical devices were discovered after the plaintiffs were implanted with them, and they allegedly suffered injuries because those who performed their surgeries did not inform the plaintiffs of the newly discovered defects. In each of those cases, the courts declined to deem lawsuits premature because, as stated by the Fourth Circuit Court of Appeal in Garnica, “[T]he duty to notify the patient is a ministerial or clerical function and does not require any specialized training or knowledge” and that duty “did not arise from the performance of health care.”

However, the court here found that the Garnica and DeRouen holdings were distinguishable because in those cases, “the plaintiffs had been discharged from care and there was no ongoing relationship with the defendant or any medical treatment of the plaintiff after the hospitals had notice of the product issues. Here, according to the allegations in the petition, the decedent was being actively treated by Tulane at the same time Tulane allegedly had a 'ministerial' duty to notify of the product issue. Any 'ministerial' duty to transmit a warning thus arose in the context of ongoing healthcare, unlike in Garnica and DeRouen, and a breach of that duty is necessarily intertwined with Plaintiff's malpractice claim. Thus, it is appropriate to require the matter to proceed before the Medical Review Panel in the first instance.” Consequently, at this stage in the proceedings, and absent a final decision from the MMR board, Tulane could not be sued for malpractice in state court, so had been improperly joined as a defendant. Thus, removal to federal court on the basis of diversity of citizenship between the plaintiff and the sole remaining defendant, Thoratec, was appropriate.