Bowerman v. Tomhave
| Decision Date | 23 December 1975 |
| Docket Number | Civ. A. No. 75-3353. |
| Citation | 414 F. Supp. 7 |
| Parties | Paula C. BOWERMAN and Robert S. Bowerman, husband and wife v. Dr. Robert N. TOMHAVE and Ortho Pharmaceutical Corp. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Jack E. Feinberg, Philadelphia, Pa., for plaintiffs.
A. Grant Sprecher, Philadelphia, Pa., for Tomhave, M.D.
Edward W. Madeira, Jr., and Murray S. Levin, Philadelphia, Pa., for Ortho.
According to plaintiffs' pleadings, an intra-uterine loop manufactured by the defendant Ortho was inserted into the uterus of the wife plaintiff by the defendant doctor in March 1975. It pierced the uterine wall, and had to be removed surgically. Plaintiffs claim that Ortho was negligent, and is liable under § 402A because the loop was defectively designed, and because Ortho failed to provide adequate warnings, including specifically the warning that the loop should not be used in a woman with a divided uterus. Plaintiffs claim that the physician was negligent in the manner in which he inserted the loop, in failing to appreciate that the loop should not be used in a woman with a divided uterus, and in the removal procedure, which allegedly caused extensive hemorrhaging.
The plaintiffs and the doctor defendant all reside in Cambria County, Pennsylvania, and the insertion and removal of the device occurred there. Ortho is a New Jersey corporation. This action was filed in the Court of Common Pleas of Philadelphia County.
The case has been removed to this Court, on the petition of the defendant Ortho. The petition is noteworthy in that the prayer for relief suggests that, following removal of the entire action to this Court, "the action against Dr. Tomhave should be thereafter remanded to the Court of Common Pleas of Cambria County Pennsylvania."
Plaintiffs have filed a motion to remand the case to the Court of Common Pleas of Philadelphia County. The defendant physician has filed a motion seeking, alternatively, (a) remand to Philadelphia County for decision by that court of a pending motion challenging venue; (b) a decision by this Court that venue in Philadelphia County is improper, followed by a remand of the entire case to Cambria County; (c) remand of all claims against the defendant physician to the Court of Common Pleas of Cambria County; or (d) transfer of the action to the United States District Court for the Western District of Pennsylvania, pursuant to 28 U.S.C. § 1404(a).
The only basis for removal of the action to this Court is that plaintiffs and the defendant Ortho are citizens of different states, and that the amount in controversy exceeds $10,000. But the action was brought against two defendants, and there is diversity of citizenship only with respect to one; moreover, only the defendant Ortho petitioned for removal. Thus, the case can remain in this Court only if Ortho is correct in one or the other of its two principal contentions: (1) that plaintiffs' cause of action against Ortho is separate and independent, and thus removable under 28 U.S.C. § 1441(c); or (2) the individual defendant's objection to venue in Philadelphia County should now be sustained by this Court, and the action dismissed as to him, thus leaving Ortho as the only defendant and permitting retention of the case by this Court on the basis of diversity.
Analysis of this problem should begin with recognition of the principle that, in the absence of fraud or collusion, the allegations of plaintiffs' Complaint are controlling. In the present case, no one has suggested that plaintiffs' inclusion of Dr. Tomhave as a defendant was improper, or was motivated by a desire to preclude the possibility of removal to a federal forum. Obviously, plaintiffs had a right to sue both defendants in a state court; whether they chose the right county for that suit appears to be a matter in controversy, but that controversy over venue plainly does not justify characterizing plaintiffs' inclusion of Dr. Tomhave as fraudulent.
Plaintiffs' Complaint, in a single count, claims damages for the personal injuries sustained by the wife plaintiff as a result of the insertion...
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Able v. Upjohn Co., Inc.
...against operating surgeon and against manufacturer of instrument used in surgery held not separate and independent) and Bowerman v. Tomhave, 414 F.Supp. 7 (E.D.Pa.1975) (claims by injured user of intrauterine device against manufacturer of device and doctor who inserted it held not separate......
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Knowles v. American Tempering Inc., Civ. A. No. 85-2454.
...to plaintiff may have differed qualitatively, the claims against the various defendants are dependent on each other. Cf. Bowerman v. Tomhave, 414 F.Supp. 7 (E.D.Pa.1975) (products liability claim against manufacturer of medical product not separate and independent from claim against physici......
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DORFMAN BY DORFMAN v. ER Squibb & Sons, Inc.
...procedure performed on plaintiff will necessarily lie at the core of both issues." 526 F.Supp. at 1165. Finally, in Bowerman v. Tomhave, 414 F.Supp. 7 (E.D.Pa.1975), the court held that a products liability claim against the non-resident manufacturer of an intrauterine device and a malpract......
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Typh, Inc. v. Typhoon Fence of Pa., Inc.
...to the allegations on the face of the complaint. La Chemise Lacoste v. Alligator Co., Inc., 506 F.2d 339 (3d Cir. 1974); Bowerman v. Tomhave, 414 F.Supp. 7 (E.D.Pa.1975). The complaint in this case on its face established a basis for diversity jurisdiction. Therefore, the action was removab......