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In re Fresenius Granuflo/ Naturalyte Dialysate Products Liability Litigation

United States District Court, D. Massachusetts

June 30, 2015

FRESENIUS USA, INC., ET AL., Defendants. JOSEPHINE ARBALLO, Plaintiff, No. 14-cv-10546-DPW



Defendant Northridge Dialysis Center (“Northridge”), a California dialysis clinic, moves to dismiss claims against it by a California plaintiff, Josephine Arballo. Arballo moves to remand the entire case to California state court, and the Fresenius defendants (“FMCNA”) seek to keep the case as part of this multi-district litigation (“MDL”), either through dismissal of the claims against Northridge or through severing and remanding the Northridge claims while maintaining the rest of the action here.


Arballo is the surviving spouse of Carlos Arballo (“the decedent”), who was receiving dialysis using Granuflo and/or NaturaLyte. Shortly after a routine dialysis treatment at Northridge on April 16, 2012, the decedent went into cardiac arrest and died.

Arballo alleges that FMCNA was aware of the risks involved in the Granuflo/NaturaLyte products, specifically the risk of metabolic alkolosis due to “confusion” by clinic technicians who were not properly accounting for the higher amount of bicarbonate produced by these products. Compl. ¶¶ 63-75. She alleges that FMCNA was aware of this for a period of time, during which it did not notify outside healthcare providers of these risks. Id. ¶ 76. She asserts that FMCNA ultimately issued a two-page memo on March 29, 2012 to healthcare providers (such as Northridge), titled “Important Prescribing Information: NaturaLyte Liquid and GranuFlo Acid Concentrate Bicarbonate Alkolosis.” Id. ¶ 78. While this memo did not address the findings FMCNA had made specifically, it stated that “[t]otal buffer should be considered in addition to bicarbonate as part of writing the dialysis prescription.” Id. Arballo alleges that “[o]n March 29, 2012, the FDA issued a Class I Recall of GranuFlo and NaturaLyte products due to the prevalent increased risk of high serum bicarbonate levels which can cause and/or contribute to metabolic alkalosis.”[1] Id. ¶ 79.

The complaint in this case was filed by Arballo individually and on behalf of her deceased husband’s estate in the Superior Court of California in Los Angeles in September 2013 against FMCNA, Northridge Dialysis Center, and two individual defendants, Ben Lipps and Walter Weisman, alleging claims for negligence, strict liability, fraudulent concealment and deceit, and wrongful death, among others.[2] FMCNA removed the case to the Central District of California in November 2013. Arballo moved to remand for lack of jurisdiction, arguing that there was a lack of diversity because her claims against Northridge and other individual California defendants were cognizable under California law. Northridge filed a motion to dismiss. The Judicial Panel on Multidistrict Litigation (“JPML”) transferred this action to the MDL before the outstanding motions were resolved in the Central District of California.

On January 2, 2015, I issued a decision determining the citizenship of various parties and the viability of certain claims against individual defendants in cases arising from California. In re Fresenius GrauFlo/NaturaLyte Dialysate Products Liability Litig., 2015 WL 44589 (D. Mass. January 2, 2015). Specifically, I held that FMCNA is a citizen of Massachusetts, that Lipps is a citizen of Nevada, and that Weisman was fraudulently joined and should be dismissed. Id. The January 2, 2015, Memorandum and Order did not directly govern this case, but the principles it applied were clearly applicable in this litigation.[3] I now must consider the claims against Northridge, the sole non-diverse party remaining in this action.


Before me are (a) Arballo’s motion to remand this case to California state court, (b) Northridge’s motion to dismiss the claims against it under Fed.R.Civ.P. 12(b), and (c) a motion by FMCNA, in the alternative, to sever the claims against Northridge from those against FMCNA, which would send only the claims against Northridge back to California state court. Arballo’s motion to remand is based on the asserted lack of complete diversity under 28 U.S.C. § 1332. See Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996).

The four counts pled by Arballo that concern Northridge are Count 7, Negligence; Count 8, Wrongful Death; Count 9, Elder Abuse; and Count 10, Negligent Performing of Undertaking. Arballo argues that the joinder of Northridge in this case is non-fraudulent, meaning that she states a viable cause of action against Northridge, and that this defeats diversity.

A. Failure to State a Claim against Northridge

The doctrine of fraudulent joinder provides that removal is not defeated by the joinder of a non-diverse defendant where there is no reasonable possibility that the state’s highest court would find that the complaint states a cause of action upon which relief may be granted against the non-diverse defendant. Universal Truck & Equip. Co., Inc. v. Southworth-Milton, Inc., 765 F.3d 103, 108 (1st Cir. 2014).[4]

This section addresses whether Arballo has stated a claim against Northridge, an issue briefed both in Arballo’s motion to remand as well as Northridge’s motion to dismiss. The motion to dismiss moves under both Rule 12(b)(1), lack of subject matter jurisdiction, and 12(b)(6), failure to state a claim upon which relief can be granted. Typically, jurisdictional issues should be determined before addressing the merits of additional defenses. See Donahue v. City of Boston, 304 F.3d 110 (1st Cir. 2002). These two inquiries, however, are intertwined here. Resolving whether Arballo‚Äôs claims against Northridge are viable on the face of her complaint - a ...

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