Graham v. Mentor World Wide LLC

• Decision Date: 19 July 2019
• Docket Number: Case No: 4:19-cv-01637
• Citation: Graham v. Mentor World Wide LLC, Case No: 4:19-cv-01637 (E.D. Mo. Jul 19, 2019)
• Parties: DIANE GRAHAM, Plaintiff, v. MENTOR WORLD WIDE LLC, ST. LOUIS COSMETIC SURGERY, INC., AMY HALEY, Defendants.
• Court: U.S. District Court — Eastern District of Missouri

DIANE GRAHAM, Plaintiff, v. MENTOR WORLD WIDE LLC, ST. LOUIS COSMETIC SURGERY, INC., AMY HALEY, Defendants.

Case No: 4:19-cv-01637

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI

July 19, 2019

MEMORANDUM AND ORDER

This matter is before the Court on Plaintiff's Motion to Remand (ECF No. 12); Defendant St. Louis Cosmetic Surgery, Inc's Motion to Dismiss Count II (ECF No. 10); and Defendant Mentor's Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (ECF No. 17). The matter is fully briefed and ready for disposition.

BACKGROUND

Plaintiff filed the instant case in the Circuit Court of St. Louis County, State of Missouri on April 5, 2019. (Case No. 19SL-CC01441). Plaintiff is a resident of St. Louis County, and brings this case against Defendant Mentor World Wide LLC, St. Louis Cosmetic Surgery, Inc., and Amy Haley. (ECF No. 5).

In 1988, Plaintiff Graham had breast implants placed in a cosmetic procedure. (ECF No. 6, ¶3). In 2000, the Plaintiff decided to obtain a tummy tuck procedure at St. Louis Cosmetic Surgery, Inc. Id. ¶¶ 4-5 Plaintiff agreed to have the tummy tuck procedure and have her breasts enlarged with new implants during the same procedure. Id. ¶ 5. On or about November 30, 2000, the Plaintiff was surgically implanted with bilateral silicone filled Mentor Siltex Gel-Filled Mammary Prosthetic Breast Implants ("Mentor Implants"). Id. ¶ 6.

On December 5, 2017, Plaintiff had a bilateral breast ultrasound at the suggestion of her physician. Id. ¶ 10. The ultrasound impression described "[e]xtrascapular silicone in both breasts and axillae." Id. On December 13, 2017, Plaintiff had a bilateral breast MRI. Id. ¶ 11. The MRI report noted a diagnosis of "[s]ilicone leakage from the breast implant". Id. ¶11. Plaintiff was informed of the results of the MRI on February 5, 2018, and was told that she should consider a procedure to replace the Mentor Implants. Id. ¶ 12.

On September 8, 2018, Plaintiff was involved in a car accident and sustained injuries, including injury to the breast area. Id. ¶ 13. Plaintiff alleges that the car accident was the fault of Defendant Amy Haley. Id. On September 24, 2018, Plaintiff had a bilateral breast ultrasound and was again directed to have the Mentor Implants removed. Id. ¶14. On October 8, 2018, doctors evaluated Plaintiff's breast implant condition and determined that the Plaintiff had "bilateral extrascapular silicone implant rupture with axillary silicosis...axillary lymph nodes with silicone." Id. ¶ 15. The Mentor Implants were removed on November 27, 2018, in an implant exchange procedure. Id ¶ 17.

In Count I, Plaintiff alleges Strict Product Liability against Defendant Mentor World Wide, LLC ("Mentor") for defective Mentor Implants. In Count II, Plaintiff alleges Strict Product Liability against Defendant St. Louis Cosmetic Surgery, Inc. Plaintiff brings Count III for Negligence against Defendant Haley.

On June 5, 2019, Defendant Mentor filed Notice of Removal in this case. (ECF No. 1). Defendant Mentor asserts that this Court has original subject matter jurisdiction pursuant to 28 U.S.C. §§ 1332 and 1441 for diversity. Id. Defendant Mentor alleges that the amount in controversy exceeds $75,000.00 and that complete diversity exists in this case. Id. On June 11, 2019, the Plaintiff filed a Motion to Remand. (ECF No. 12). Plaintiff concedes that the amount incontroversy requirement is satisfied but challenges complete diversity in this case. Id. Defendant Mentor alleges that the Plaintiff has fraudulently joined Defendant St. Louis Cosmetic Inc., and Defendant Haley in this case and that the Court should therefore disregard their citizenship. (ECF No. 1).

Additionally, on June 6, 2019, Defendant St. Louis Cosmetic Surgery, Inc. filed a Motion to Dismiss Count II of Plaintiff's First Amended Petition challenging Plaintiff's strict product liability cause of action against it. (ECF No. 10). Defendant St. Louis Cosmetic Surgery, Inc. asserts that RSMo. §537.762 mandates the dismissal of a defendant whose alleged liability is based solely on its status as a seller if another defendant, including the manufacturer, is properly before the court and the plaintiff could recover in full from that other defendant. Id, citing RSMo. §537.762. Defendant St. Louis Cosmetic Surgery also asserts that Count II is time-barred because the Missouri statute of limitations for a products liability claim pursuant to RSMo. §516.120 is five years, and for a medical negligence claim is two years pursuant to RSMo. §516.105. Id., citing RSMo. §§ 516.120, 516.105.

On June 12, 2019, Defendant Mentor World Wide filed a 12(b)(6) Motion to Dismiss Plaintiff's Amended Petition for Failure to State a Claim. (ECF No. 17). Defendant Mentor asserts that Plaintiff's claims are preempted pursuant to the Medical Device Amendments ("MDA") to the Federal Food, Drug, and Cosmetic Act ("FDCA"). Id.

DISCUSSION

I. Defendant Mentor's Notice of Removal and Plaintiff's Motion for Remand

Under 28 U.S.C. § 1441(a), a defendant may remove to this Court "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." Under 28 U.S.C. § 1332(a), district courts have original jurisdiction over all civilactions where the matter in controversy exceeds the value of seventy-five thousand dollars ($75,000.00), exclusive of interests and costs, and involves a controversy between citizens of different states. Such cases thus may be removed, provided none "of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b). "Removal statutes are strictly construed, and any doubts about the propriety of removal are resolved in favor of remand." Byrd v. TVI, Inc., 2015 WL 5568454, at *1 (E.D. Mo. Sept. 21, 2015) (citation omitted); see also In re Business Men's Assurance Co. of America, 992 F.2d 181, 183 (8^th Cir. 1993).

a. Fraudulent Joinder of Defendant St. Louis Cosmetic Surgery, Inc.

In the instant case, Plaintiff and Defendants St. Louis Cosmetic Surgery, Inc. and Amy Haley are citizens of the State of Missouri. Complete diversity of citizenship therefore does not exist, and removal is precluded unless Defendants St. Louis Cosmetic Surgery, Inc., and Amy Haley were fraudulently joined. See Knudson v. Systems Painters, Inc., 634 F.3d 968, 976 (8th Cir. 2011)(internal quotations and citation omitted) ("[A] plaintiff cannot defeat a defendant's right of removal by fraudulently joining a defendant who has no real connection with the controversy.") "The purpose of this exception is to strike a balance between the plaintiff's right to select a particular forum and the defendant's right to remove the case to federal court." Id. (citation omitted).

Joinder of a defendant is fraudulent where there exists "no reasonable basis in law or fact" to support a claim asserted against it. Hubbard v. Federated Mut. Ins. Co., 799 F.3d 1224, 1227 (8^th Cir. 2015). "This reasonableness standard requires the defendant to do more than merely prove that the plaintiff's claim should be dismissed pursuant to a Rule 12(b)(6) motion." Waller v. Blast Fitness Group, LLC, 2015 WL 7737298, at *3 (E.D. Mo. Dec. 1, 2015). Thequestion turns on whether the plaintiff might have a "colorable" claim against the non-diverse or resident defendant. Junk v. Terminix Int'l Co., 628 F.3d 439, 446 (8^th Cir. 2010), cert. denied, 132 S.Ct. 94 (2011). If not, the joinder is fraudulent, and dismissal of the defendant is proper. Id.; see also Thompson v. R.J. Reynolds Tobacco Co., 760 F.3d 913, 918 (8^th Cir. 2014); Filla v. Norfolk Southern Ry. Co., 336 F.3d 806, 810 (8^th Cir. 2003) (internal quotations and citation omitted) ("[I]f it is clear under governing state law that the complaint does not state a cause of action against the non-diverse defendant, the joinder is fraudulent and federal jurisdiction of the case should be retained."). At all times Defendant, as the removing party alleging fraudulent joinder, bears the burden of proving the alleged fraud. Waller, 2015 WL 7737298, at *3 (citing Orrick v. Smithkline Beecham Corp., 2014 WL 3956547, at *3 (E.D. Mo. Aug. 13, 2014); Manning v. Wal-Mart Stores East, Inc., 304 F. Supp. 2d 1146, 1148 (E.D. Mo. 2004)).

For Plaintiff to survive Defendant Mentor's fraudulent joinder challenge, there must be "a reasonable basis for believing Missouri might impose liability against" Defendant St. Louis Cosmetic Surgery, Inc. for Strict Products Liability. To state a claim for strict products liability, the Plaintiff must allege that "(1) the defendant sold a product in the course of its business; (2) the product was then in a defective condition; (3) the product was used in a manner reasonably anticipated; and (4) the plaintiff was damaged as a direct result of such condition as existed when the product was sold." Kampleman v. Codman &Shurteef, Inc. 2009 WL 2382775 at *3 (E.D.Mo Jul. 31, 2009)(citing Haffey v. Gereac Portable Products, L.L.C., 171 S.W.3d 805, 809 (Mo. App. 2005)(quoting Lay v. P & G Health Care, Inc., 37 S.W.3d 310, 325 (Mo. App. 2000).

Defendant Mentor argues in its response to Plaintiff's Motion to Remand that the Plaintiff has ignored Missouri law barring her strict liability claim against Defendant St. LouisCosmetic Surgery. (ECF No. 23). Defendant Mentor asserts that Plaintiff's claim against Defendant St. Louis Cosmetic Surgery is without basis because the Missouri Supreme Court has held that product liability claims against health care providers are not viable in Missouri. Id. Although Plaintiff asserts that this Court should not evaluate the sufficiency of their Complaint on remand, the standard of review under fraudulent joinder analysis requires the Court to do so. (ECF No. 12); and see, Block v. Toyota Corp., 665 F.3d 944, 950-51 (8th Cir. 2011)(affirming finding of fraudulent joinder when the Plaintiff could not prevail on their state law strict liability claim).

In...