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In re Stryker LFIT V40 Femoral Head Products Liability Litigation

United States District Court, D. Massachusetts

August 31, 2017

IN RE STRYKER LFIT V40 FEMORAL HEAD PRODUCTS LIABILITY LITIGATION This Document Relates To: Cooney
v.
Howmedica Osteonics Corp. et al., No. 17-cv-10829, Crowley
v.
Howmedica Osteonics Corp. et al., No. 17-cv-10830, and Mayo
v.
Howmedica Osteonics Corp. et al., No. 17-cv-10832.

          MEMORANDUM AND ORDER

          Indira Talwani, United States District Judge.

         I. Introduction

         Defendants Howmedica Osteonics Corp. and Stryker Corp. (together, the “Howmedica Defendants”) removed three Massachusetts state court actions to this court, asserting diversity of citizenship between them and Plaintiffs, and alleging that the non-diverse Defendant, Surgi-Care, Inc., was fraudulently joined. Notice of Removal, Cooney v. Howmedica Osteonics Corp. , 17-cv-10829 [#1]; Notice of Removal, Crowley v. Howmedica Osteonics Corp. , 17-cv-10830 [#1]; Notice of Removal, Mayo v. Howmedica Osteonics Corp. , 17-cv-10832 [#1]. The actions were related to the pending multi-district litigation, In re: Stryker LFIT V40 Femoral Head Products Liability Litigation, MDL No. 17-md-2768. Plaintiffs moved to remand these cases. See Mot. to Remand [17-md-2768, #148; 17-cv-10829, #11] (Cooney); Mot. to Remand [17-md-2768, #149; 17-cv-10832, #11] (Mayo); Mot. to Remand [17-md-2768, #150; 17-cv- 10830, #11] (Crowley). The Howmedica Defendants have opposed the motion.[1] For the reasons that follow, Plaintiffs' motions to remand are GRANTED.

         II. Legal Standard

         In general, “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed” by the defendant to federal court. 28 U.S.C. § 1441. The court has original, diversity jurisdiction over actions when the amount in controversy is greater than $75, 000 and there is complete diversity among the parties. 28 U.S.C. § 1332; Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). It is the defendant's burden to show that federal jurisdiction lies. Hertz Corp. v. Friend, 559 U.S. 77, 96 (2010); Coll. of Dental Surgeons of Puerto Rico v. Connecticut Gen. Life Ins. Co., 585 F.3d 33, 39 (1st Cir. 2009). However, “[a] plaintiff may not thwart the exercise of a defendant's right of removal by fraudulently joining a non-diverse defendant who has no real connection to the case.” In re Fresenius Granuflo/Naturalyte Dialysate Prods. Liability Litig., 76 F.Supp.3d 321, 332 (D. Mass. 2015).

         “[I]t is generally recognized that, under the doctrine of fraudulent joinder, 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). Stated another way, “if the plaintiff fails to state a cause of action against a resident defendant, and the failure is obvious according to the settled rules of the state, the joinder of the resident defendant is fraudulent.” Id. at 108 n.3 (quoting McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987) (citing Moore's Fed.l Practice (1986) ¶ O.161[2])).

         “In assessing a claim of fraudulent joinder, the court is not bound by the allegations in the complaint and may consider affidavits and other materials that bear on the question of whether there is a reasonable basis for joinder of a defendant.” In re Fresenius Granuflo/Naturalyte Dialysate Prod. Liab. Litig., 76 F.Supp.3d at 333. “[T]he court must resolve ‘all disputed questions of fact and any ambiguities in the current controlling substantive law in plaintiffs' favor.'” Phillips v. Medtronic, Inc., 754 F.Supp.2d 211, 215 (D. Mass. 2010) (quoting Badon v. RJR Nabsico Inc., 236 F.3d 282, 286 (5th Cir. 2000)).

         III. Analysis

         The Howmedica Defendants argue that Plaintiffs' claims against Defendant Surgi-Care are preempted by federal law. They also contend that Surgi-Care did not take title to the devices at issue, and therefore cannot be held liable under Plaintiffs' breach of warranty cause of action. The court considers whether Plaintiffs have failed to state a claim against Surgi-Care, and if so, that such failure is obvious.

         A. Preemption

         The doctrine of federal preemption is derived from the Supremacy Clause, which provides that federal law “shall be the supreme Law of the Land.” U.S. Const., Art. VI, cl. 2; Arizona v. United States, 567 U.S. 387, 399 (2012). Preemption comes in several forms. Congress may include explicit statutory language signaling its intent to preempt state law. See Arizona, 567 U.S. at 399. The Howmedica Defendants do not dispute that there is no express federal preemption of actions involving medical devices cleared through a 510(k) process. Defs.' Opp'n to Pls.' Mot. to Remand [“Defs.' Opp'n”] 8 [17-md-2768, #167]; see also Riegel v. Medtronic, Inc., 552 U.S. 312, 323 (2008); Medtronic, Inc. v. Lohr, 518 U.S. 470, 478-79, 497 (1996).

         State law is also impliedly preempted in certain circumstances, including where state laws conflict with federal law. Arizona, 567 U.S. at 399-400; Mut. Pharm. Co., Inc. v. Bartlett 133 S.Ct. 2466, 2473 (2013) (“Even in the absence of an express pre-emption provision, the Court has found state law to be impliedly pre-empted” under conflict preemption); Buckman Co. v. Plaintiffs' Legal Committee, 531 U.S. 341, 349 (2001) (finding implied preemption of state law fraud claims that conflicted with the FDA's regulatory scheme for 510(k)-cleared devices).

         Implied preemption may include those instances when “‘compliance with both federal and state regulations is a physical impossibility.'” Arizona, 567 U.S. at 399 (quoting Florida Lime & Avocado Growers, Inc. v. Paul 373 U.S. 132, 142-43 (1963)); see also English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990) (finding implied conflict pre-emption where it is “impossible for a private party to comply with both state and federal requirements”). “The existence of a hypothetical or potential conflict is insufficient to warrant” preemption. Rice v. Norman Williams Co., 458 U.S. 654, 659 (1982).

         In PLIVA v. Mensing, the Supreme Court found that the FDCA's requirements for generic drugs implicitly preempted state failure-to-warn claims where the generic drug maker could not change the warning labels. 564 U.S. 604, 618 (2011). The Howmedica Defendants argue that compliance with both Massachusetts laws and federal laws is similarly a physical impossibility with regard to medical device ...


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