Bouldry v. C.R. Bard, Inc.

• Decision Date: 18 December 2012
• Docket Number: Case No. 12–80951–CIV.
• Citation: 909 F.Supp.2d 1371
• Parties: Samantha BOULDRY, Eula Huff, Sandra Lorenz, and Janet Roberts on behalf of themselves and the class of all others similarly situated, Plaintiffs, v. C.R. BARD, INC., a corporation of the State of New Jersey and Bard Peripheral Vascular, Inc., a corporation of the State of Arizona, and Doe Defendants 1 through 20, Inclusive, Defendants.
• Court: U.S. District Court — Southern District of Florida

909 F.Supp.2d 1371

Samantha BOULDRY, Eula Huff, Sandra Lorenz, and Janet Roberts on behalf of themselves and the class of all others similarly situated, Plaintiffs,

v.C.R. BARD, INC., a corporation of the State of New Jersey and Bard Peripheral Vascular, Inc., a corporation of the State of Arizona, and Doe Defendants 1 through 20, Inclusive, Defendants.

Case No. 12–80951–CIV.

United States District Court, S.D. Florida.

Dec. 18, 2012.

Joseph R. Johnson, Babbitt Johnson & Osborne, West Palm Beach, FL, Ramon Rossi Lopez, Troy A. Brenes, Lopez McHugh, LLP, Newport Beach, CA, for Plaintiffs.

Garth Thomas Yearick, Carlton Fields, P.A., West Palm Beach, FL, Michael K. Brown, Reed Smith, LLP, Los Angeles, CA, Steven J. Boranian, Reed Smith, LLP, San Francisco, CA, John Anderson Camp, Carlton Fields, P.A., Miami, FL, for Defendants.

ORDER ON PLAINTIFFS' MOTION TO REMAND

ROBIN S. ROSENBAUM, District Judge.

This matter is before the Court on Plaintiffs' Motion to Remand to State Court (“Motion to Remand”) [D.E. 13]. The Court has considered Plaintiffs' Motion and all supporting and opposing filings.For the reasons set forth below, the Court now denies Plaintiffs' Motion to Remand.

I. BACKGROUND

On July 26, 2012, Plaintiffs filed a fourteen-count, class-action Complaint in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida (“state court”). See D.E. 1–3. In their Complaint, Plaintiffs allege that they were each implanted with inferior vena cava (“IVC”) filters manufactured by Defendants. D.E. 1–3 at ¶¶ 3–6. They further state that Defendants fraudulently concealed “material facts concerning hazards associated” with the IVF filters, such as risk of filter failure that could lead to death, hemorrhage, or other injuries. Id. at ¶¶ 26–27. Although the filters implanted in Plaintiffs “[have] not yet fractured, migrated, or otherwise failed,” Plaintiffs “seek[ ] to establish a medical monitoring fund or to otherwise recover the cost of providing medical monitoring to the proposed class of plaintiffs.” Id. at ¶¶ 1–6.

Shortly after Plaintiffs filed their Complaint, Defendant removed the action to this Court, pursuant to the Class Action Fairness Act of 2005. See D.E. 1. Plaintiffs then filed the pending Motion to Remand. See D.E. 13. In their Motion, Plaintiffs argue that this Court lacks subject-matter jurisdiction over their claims because “[t]he Eleventh Circuit has not recognized that an increased risk of future injury is an injury-in-fact under Article III [of the United States Constitution]....” Id. at 6. In addition, Plaintiffs contend that their Complaint “does not a support a conclusion that there is a substantial probability that harm will occur to each Plaintiff.” Accordingly, they argue, “this Court lacks subject-matter jurisdiction [over] Plaintiffs' action” and should remand it to state court. Id.

In response, Defendants assert that “[w]hile the Eleventh Circuit has not yet squarely addressed the issue of Article III standing in the context of a future-injury medical-monitoring claim, authority from several circuits around the nation weighs heavily in favor of determining that Article III standing and jurisdiction exist in this case.” D.E. 16 at 2. Defendants urge the Court to concur with federal courts that have “accept[ed] the rule that an alleged increased risk of future harm satisfies Article III's injury requirement for purposes of standing, especially in medical-monitoring cases involving implanted medical devices....” Id. Finally, Defendants note that Florida state law “recognizes that medical-monitoring plaintiffs have suffered an economic injury-in-fact....” Id. at 7.

II. DISCUSSION

A. Applicable Standard on a Motion to Remand

Federal courts enjoy only limited jurisdiction. Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir.2005), cert. denied,546 U.S. 872, 126 S.Ct. 377, 163 L.Ed.2d 164 (2005). On a motion for remand, the removing defendant shoulders the burden of demonstrating that federal jurisdiction lies in the case. Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1294 (11th Cir.2008) (citing Leonard v. Enter. Rent a Car, 279 F.3d 967, 972 (11th Cir.2002)). In accomplishing this task, the removing defendant must overcome the narrow construction of removal statutes. See Pacheco de Perez v. AT & T Co., 139 F.3d 1368, 1373 (11th Cir.1998). “The strict construction of removal statutes ... prevents ‘exposing the plaintiff to the possibility that he will win a final judgment in federal court, only to have it determined that the court lacked jurisdiction on removal,’ ... a result that is costly not just for the plaintiff, but for all the parties and for society when the case must be relitigated.” Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir.1997) (quoting Cowart Iron Works, Inc. v. Phillips Constr. Co., Inc., 507 F.Supp. 740, 744 (S.D.Ga.1981) (quoting 14A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3721)). Thus, “[a]ny doubts about the propriety of federal jurisdiction should be resolved in favor of remand to state court.” Adventure Outdoors, 552 F.3d at 1294 (citing Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir.1996)).

Defendants premise federal jurisdiction in this case on the Class Action Fairness Act of 2005 (“CAFA”), which provides, in relevant part, “A class action may be removed to a district court of the United States in accordance with section 1446 ... without regard to whether any defendant is a citizen of the State in which the action is brought, except that such action may be removed by any defendant without the consent of all defendants.” 28 U.S.C. § 1453.¹ “CAFA amend[ed] the federal diversity jurisdiction statute, 28 U.S.C. § 1332, by inserting a new subsection, § 1332(d).” Lowery v. Alabama Power Co., 483 F.3d 1184, 1193 (11th Cir.2007). “Subject to certain exceptions ... CAFA provides federal courts with jurisdiction over class actions provided that: the number of plaintiffs in all proposed plaintiff classes exceeds one hundred, ... any member of the plaintiff class is diverse from any defendant, ... and the aggregate of the claims of individual class members exceeds $5,000,000, exclusive of interests and costs.” Id. at 1193–94. In their Notice of Removal, Defendants assert that the instant action meets CAFA's requirements. See D.E. 1.

B. Injury in Fact

Although Plaintiffs do not dispute Defendants' argument that this action meets CAFA's removal requirements, Plaintiffs contend that they lack Article III standing to pursue their claims in federal court. See D.E. 13. Article III of the United States Constitution confines federal-court jurisdiction to actual “cases” and “controversies.” U.S. Const., art. III, § 2. To satisfy constitutional standing requirements under Article III, a plaintiff must demonstrate three factors:

First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not conjectural or hypothetical.” Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be “fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”

Bischoff v. Osceola Cnty., Fla., 222 F.3d 874, 884 (11th Cir.2000) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Here, Plaintiffs take issue with the first requirement, asserting that an increased risk of future injury does not constitute an injury in fact.

The Eleventh Circuit has not addressed whether risk of future injury satisfies the Constitution's injury-in-fact requirement. As Plaintiffs acknowledge, however, federal courts nationwide have concluded that such risk is sufficient to confer standing under Article III. See, e.g., Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 634 (7th Cir.2007) (“[T]he injury-in-fact requirement can be satisfied by a threat of future harm or by an act which harms the plaintiff only by increasing the risk of future harm that the plaintiff would have otherwise faced, absent the defendant's actions.”) (footnote omitted); Cent. Delta Water Agency v. United States, 306 F.3d 938, 947–48 (9th Cir.2002) (holding that “the possibility of future injury may be sufficient to confer standing on plaintiffs” and noting that “threatened injury constitutes injury-in-fact.”) (internal quotations omitted); Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 160 (4th Cir.2000) (en banc) (“Threats or increased risk ... constitutes cognizable harm.”).

Moreover, courts that have considered the issue specifically in the context of medical monitoring have held that an alleged increased risk of future harm satisfies Article III's injury-in-fact requirement. See, e.g., Sutton v. St. Jude Med. S.C., Inc., 419 F.3d 568, 574–75 (6th Cir.2005) (concluding that standing was present where a defective medical implement presented an increased risk of future health problems); In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 861 (3d Cir.1990), cert. denied,499 U.S. 961, 111 S.Ct. 1584, 113 L.Ed.2d 649 (1991) (holding that persons who had been exposed to poly-chlorinated biphenyls, a toxic substance, could sue for medical monitoring expenses because “regardless of whether all plaintiffs alleged demonstrable physical injury, they all clearly alleged monetary injury.”); Carlough v. Amchem Prods., Inc., 834 F.Supp. 1437, 1452 (E.D.Pa.1993) (holding that plaintiffs who were exposed to asbestos but had not yet developed asbestos-related conditions had standing to bring suit for injuries); In re Welding Fume Prods. Liab. Litig., 245 F.R.D. 279, 287 n. 37 (N.D.Ohio 2007) (“Although the defendants no not argue...