Mills v. Allegiance Healthcare Corp.

• Decision Date: 16 November 2001
• Docket Number: No. 01 CV-10582 PBS.,01 CV-10582 PBS.
• Citation: 178 F.Supp.2d 1
• Court: U.S. District Court — District of Massachusetts
• Parties: Charles MILLS, Individually, Marie Mills, and Christopher Mills and Connor Mills, by Their Father and Next Best Friend Charles Mills, Plaintiffs, v. ALLEGIANCE HEALTHCARE CORPORATION, Ansell Incorporated, Ansell Perry, Inc., Ansell Healthcare Products, Inc., Smith & Nephew AHP, Inc. f/k/a Smith & Nephew, Inc., Smith & Nephew Perry, Baxter Healthcare Corporation, Baxter International, Inc., Owens & Minor, Inc., Owens & Minor Medical, Inc., Tillotson Healthcare Corporation, Medline Industries, Inc., ABCO Dealers, Inc., the Claflin Company and Little Rapids Corporation, Defendants.

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178 F.Supp.2d 1

Charles MILLS, Individually, Marie Mills, and Christopher Mills and Connor Mills, by Their Father and Next Best Friend Charles Mills, Plaintiffs, v. ALLEGIANCE HEALTHCARE CORPORATION, Ansell Incorporated, Ansell Perry, Inc., Ansell Healthcare Products, Inc., Smith & Nephew AHP, Inc. f/k/a Smith & Nephew, Inc., Smith & Nephew Perry, Baxter Healthcare Corporation, Baxter International, Inc., Owens & Minor, Inc., Owens & Minor Medical, Inc., Tillotson Healthcare Corporation, Medline Industries, Inc., ABCO Dealers, Inc., the Claflin Company and Little Rapids Corporation, Defendants.

No. 01 CV-10582 PBS.

United States District Court, D. Massachusetts.

November 16, 2001.

Albert P. Zabin, Schneider, Reilly, Zabin & Costello, Boston, MA, for plaintiffs.

Barry S. Pollack, Dechert, Price & Rhoads, Boston, MA, Nancy J. Armitage, Yurko & Perry, Boston, MA, Douglas W. Salvesen, Yurko & Perry, Boston, MA, Joseph J. Leghorn, Nixon Peabody, Boston, MA, A. Damien Puller, Nixon Peabody LLPin, Boston, MA, James B. Peloquin, Conn, Kavanaugh, Rosenthal, Peisch & Ford, Boston, MA, Fred A. Kelly, Jr., Jason C. Kravitz, Alan E. McKenna, Nixon Peabody, Boston, MA, Robert A. Curley, Jr., Joni F. Katz, Joni Katz-Mackler, Curley & Curley, Boston, MA, Joel F. Pierce, Pierce, Davis, Fahey & Perritano, Boston, MA, Judith A. Perritano, Pierce, Davis, Fahey & Perritano, LLP, Boston, MA, Armando E. Batastini, Edwards & Angell, LLP, Providence, RI, for defendants.

ORDER

SARIS, District Judge.

I. INTRODUCTION

Plaintiff Charles Mills alleges that he contracted an allergy to latex as a result of his use of, and exposure to, latex rubber gloves manufactured and/or distributed by the fifteen defendants including The Claflin Company ("Claflin"). The complaint, which was amended prior to removal, sets forth four state law claims: negligence (Count I), breach of warranty (Count II), loss of consortium (Count III), and violation of Chapter 93A (Count IV).

After all the defendants removed the action to this Court under 28 U.S.C. §§ 1441(a), 1446, Plaintiffs filed a motion to remand the case, initially commenced in the Massachusetts Superior Court, asserting that this Court lacked diversity jurisdiction over the claims pursuant to 28 U.S.C. § 1332. As the lone non-diverse defendant, Claflin argues that Plaintiffs, all Rhode Island residents, fraudulently joined it solely to defeat diversity jurisdiction and moves for its dismissal as a misjoined party pursuant to Fed.R.Civ.P. 21. Eager to join with the multi-district latex gloves litigation,¹ Defendants assert that but for the fraudulent joinder of Claflin, complete diversity of citizenship between the plaintiffs and the other defendants exists.

Defendant's motion to dismiss it as a misjoined party is ALLOWED and Plaintiffs' motion to remand is DENIED.

II. FACTUAL BACKGROUND

A. The Complaint

With all reasonable inferences drawn in favor of the non-moving party, the amended complaint alleges the following facts. Plaintiffs Charles and Marie Mills and their two minor children, Christopher and Conner, reside in the state of Rhode Island. Charles Mills ("Plaintiff"), a registered nurse, worked as an anesthetist nurse in the following four hospitals: Norwood Hospital in Norwood, Massachusetts; Newport Hospital in Newport, Rhode Island; St. Vincent's Hospital in Worcester, Massachusetts; and St. Margaret's Hospital in Dorchester, Massachusetts.

While practicing his profession, Plaintiff used, or was exposed to, general use and surgical examination gloves made of latex rubber manufactured and/or distributed by Defendants. In January of 1998, Charles Mills was diagnosed with an allergy to all forms of latex, which he claims Defendants' negligence and breaches of warranty caused. Plaintiff alleges that his latex allergy has rendered him chronically ill, prevented him from practicing his profession, and caused him to suffer other damages.

In their amended complaint, Plaintiffs named fifteen defendants including Claflin, who is both the only Rhode Island resident and the only distributor of latex gloves among the defendants. Plaintiffs advance three counts against all the defendants, including negligent failure to warn and instruct, breach of an implied warranty of merchantability, and breach of an express warranty of merchantability. However, Plaintiffs excluded Claflin from Count IV of the amended complaint, violation of Chapter 93A.

In their negligence claim (Count I), Plaintiffs contend that Defendants negligently and carelessly manufactured, packaged, and marketed their latex gloves in that their manufacturing techniques, their inadequate processing of finished gloves to remove pre-latex proteins, and their inadequate warnings and instructions on the safe use of said gloves caused Plaintiff's serious allergy to latex. (Pls.' Am. Compl. ¶¶ 20-21.) Plaintiffs do not specifically mention any negligence on the part of a distributor.

In the breach of warranty claim (Count II), Plaintiffs allege that in connection with the sale and distribution of these latex examination gloves, "the defendants placed into the stream of commerce latex examination gloves manufactured for them by them, and under their name and trademark, for the use of healthcare workers." (Pls.' Am. Compl. ¶ 24.) Defendants allegedly breached certain express and implied warranties including the express warranty that the exam gloves were hypoallergenic. (Pls.' Am. Compl. ¶ 25.) Specifically, Plaintiffs allege that the gloves were not hypoallergenic, that they were unreasonably hazardous to a degree "that the ordinary user" would not have anticipated, that Defendants failed to provide adequate instructions on the safe use of said gloves, and that they failed to provide adequate warnings to the "user" of said gloves. (Pls.' Am. Compl. ¶ 26.) Again, Plaintiffs allege that as a result of these breaches of warranty, Mills became ill and disabled. (Pls.' Am. Compl. ¶ 27.)

B. The Removal Petition

The timely petition for removal alleges that Claflin was improperly and fraudulently joined for two reasons. (Defs.' Removal Pet. ¶ 17.) First, Defendants claim that the complaint focuses on manufacturing and design defects of latex gloves without asserting any specific claims against Claflin, a distributor. (Defs.' Removal Pet. ¶ 17.) Second, they allege that Plaintiffs never had any real intent to secure a judgment against Claflin, as evidenced by the statement of Plaintiffs' counsel, Alfred P. Zabin, Esq., that he only named Claflin as a defendant to facilitate discovery. (Defs.' Removal Pet. ¶ 18.) According to Defendants, Plaintiffs' counsel agreed to dismiss Claflin from the suit if Claflin agreed to provide discovery as if it were a party. (Defs.' Removal Pet. ¶ 18; see also Armando E. Batastini Aff., Docket 14, Ex. A).

C. Affidavits

In the context of the motion to dismiss for fraudulent joinder and motion to remand, Plaintiff submitted an affidavit that after his diagnosis in January, 1998, he did not continue to wear latex gloves except when performing a spinal procedure, which he did infrequently. (Charles Mills Suppl. Aff. ¶ 1, Docket 51.) Even then, he wore vinyl gloves under the latex ones. (Id.) Mills states that it was not only the physical contact with the latex gloves that initiated a reaction on his part, "It was also the allergens released into the environment when the latex gloves were taken on and off by coworkers." (Id. at ¶ 2.) Even after his diagnosis, he continued to work in operating rooms with other employees who wore and used latex gloves during medical procedures. (Id. at ¶ 3.) He does not remember the manufacturer of the gloves they used although he expected his co-workers could. (Id. at ¶ 4.)

Plaintiffs claim they named Claflin as a defendant based on an e-mail from a Norwood Hospital employee who listed Claflin's name as a vendor of latex gloves to the hospital during Charles Mills' term of employment there (October 1, 1995 until March 15, 2000). (See Zabin Aff., Pls.' Opp. Mem., Ex. A ¶ 3; see also Pls.' Opp. Mem., Ex. B at 4.) Claflin, however, produced an affidavit that it only began to supply latex gloves distributed by ABCO Dealers, Inc. ("ABCO") to Norwood Hospital on July 15, 1998, more than five months after Mr. Mills' latex allergy diagnosis. (Johnson Aff., Def.'s Suppl. Mem. Supp., Ex. A ¶ 5.) It has never supplied latex gloves to the other three hospitals in which Mills worked. (Id. at ¶ 8.) In addition, Claflin stated that it distributes the products in the original manufacturer's packaging, not its own. (Id. at ¶ 9.)

III. DISCUSSION

A. Standard for Fraudulent Joinder

A civil case, at law or in equity, presenting a controversy between citizens of different states, and involving the requisite jurisdictional amount, may be removed from a state court into a United States District Court by a non-resident defendant. See 28 U.S.C. §§ 1441(b); 1446; 1332. The right to remove is "to be determined according to the plaintiff's pleading at the time of the petition for removal." Pullman Co. v. Jenkins, 305 U.S. 534, 537, 59 S.Ct. 347, 83 L.Ed. 334 (1939) (holding that the second amended complaint filed post-removal should not have been considered in determining whether removal was appropriate). This right of removal cannot be defeated by a fraudulent joinder of a non-diverse defendant "having no real connection with the controversy." Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 66 L.Ed. 144 (1921) (describing the joinder of a defendant as a sham or device to prevent the exercise of the right of removal where plaintiff, according to the undisputed removal petition, knew that the person was not in any degree responsible for his injuries). A joinder is a sham and fraudulent if it is "without any reasonable basis in fact and without any purpose to prosecute the cause in good faith against the [defendant]." Id. at 98, 42 S.Ct. 35 See Chesapeake & Ohio Ry. v. Cockrell, ...