Rosbeck v. Corin Grp., PLC

• Decision Date: 26 October 2015
• Docket Number: Civil Action No. 15-12954-LTS
• Parties: Peter Rosbeck and, Karen Rosbeck, Plaintiffs, v. Corin Group, PLC, Corin USA Limited, Inc., Howmedica Osteonics Corp., and Brigham and Women's Healthcare, Inc. Lenders Network USA, Inc. Defendants.
• Court: U.S. District Court — District of Massachusetts

140 F.Supp.3d 197

Peter Rosbeck and, Karen Rosbeck, Plaintiffs,

v.Corin Group, PLC, Corin USA Limited, Inc., Howmedica Osteonics Corp., and Brigham and Women's Healthcare, Inc. Lenders Network USA, Inc. Defendants.

Civil Action No. 15-12954-LTS

United States District Court, D. Massachusetts.

Signed October 26, 2015

Filed October 27, 2015

Alan L. Cantor, James A. Swartz, Swartz & Swartz, Boston, MA, for Plaintiffs.

Amelia Ashton, Andrew Kaplan, Crowell & Moring LLP, Washington, DC, Craig E. Stewart, Rachel J. Eisenhaure, White & Williams LLP, Holly M. Polglase, Hermes, Netburn, O'Connor & Spearing, P.C., Vincent P. Dunn, Brian E. Sopp, Hamel, Marcin, Dunn, Reardon & Shea, P.C., Boston, MA, Paul E. Asfendis, Gibbons, P.C., New York, NY, for Defendants.

MEMORANDUM AND ORDER ON PLAINTIFFS' MOTION TO REMAND ACTION TO SUFFOLK SUPERIOR COURT

Leo T. Sorokin, United States District Judge

I. Introduction

Plaintiffs Peter and Karen Rosbeck (collectively "The Rosbecks") filed a Complaint in Suffolk Superior Court stemming from complications following Mr. Rosbeck's hip resurfacing surgery. The Rosbecks have sued four defendants: Corin Group PLC ("Corin Group"); Corin USA Limited, Inc. ("Corin USA"); Howmedica Osteonics Corporation ("Howmedica"); and Brigham and Women's Health Care, Inc. ("BWH"). Doc No. 1-6. Corin Group and Corin USA (collectively "Corin") timely removed the case to this Court. Doc. No. 1. Howmedica consented to the removal. Doc. No. 3.¹ The Rosbecks then filed this Motion to Remand Action to Suffolk Superior Court. Doc. No. 19. Corin and Howmedica responded to the motion, arguing in both the Notice of Removal and their Opposition papers that the Rosbecks fraudulently joined BWH to the action to defeat diversity, meaning the Court has jurisdiction. Doc. No. 24.² After careful review of the briefs and the parties' arguments at the Motion Hearing, see Doc. No. 29 (scheduling a hearing for this motion), for the reasons set forth below, the Court ALLOWS the Rosbecks' motion and remands this case to Suffolk Superior Court.

II. Facts

As the Court deals with a question of fraudulent joinder, it draws this recitation of alleged facts primarily from the Rosbecks' complaint. Cf. Universal Truck & Equipment Co., Inc. v. Southworth-Milton, Inc. , 765 F.3d 103, 108 (1st Cir.2014) ("[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. ") (emphasis added). However, when necessary, the Court looks to "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 Prods. Liab. Litig. , 76 F.Supp.3d 321, 333 (D.Mass.2015).

In 2008, Mr. Rosbeck had hip resurfacing surgery at BWH, a Boston hospital. Doc. No. 1-6 ¶ 6.³ Surgeons inserted a Cormet 2000 hip resurfacing system ("Cormet System"). Id. The system included a Cormet Cup 570-06-054 and a Cormet Head 571-05-048. Id. Corin and Howmedica designed, developed, tested, distributed, and sold those devices. Id. Corin is "a corporation existing under the laws of the United Kingdom with its principal place of business in the United Kingdom." Doc. No. 1 ¶ 8. Howmedica is "a corporation existing under the laws of the state of New Jersey, with its principal place of business in New Jersey." Id. ¶ 9. The FDA granted the Cormet System, a class III medical device, premarket approval ("PMA"). Doc. No. 1-6 ¶ 9. The FDA granted PMA provided that each Cormet System was in compliance with a variety of manufacturing requirements. Id. ¶ 9a. These requirements dealt with features such as the permissible materials for various parts of the Cormet System, and the dimensions of each of the parts. Id. ¶ 9. These standards are known as the "Approved Design Standards." Id. ¶ 9i.

To ensure compliance with the Approved Design Standards, "[d]efendants use hip simulator tests." Id. ¶ 9k. These tests use a synthetic fluid to mimic the synovial fluids that the body creates to lubricate joints, such as the hip, whenever joints rub together. Id. ¶ 9l. Essentially, the tests involves, 1) lubricating the Cormet System with the synthetic fluid (as the body does when joints begin to rub together); 2) prompt the components of the Cormet System to rub together, "like a normal hip joint would;" and 3) examine the Cormet System to see if it suffered impermissible wear from the joint friction. Id. ¶ 9m. These tests used more synthetic fluid than the body naturally releases, "creating an unrealistically thick layer of fluid that separates the metal surfaces and reduces the abrasion between them in the testing environment." Id. ¶ 9p. This enables certain Cormet Systems not in compliance with the Approved Design Standards to nevertheless pass the test. Id. ¶ 9q.

Mr. Rosbeck's body developed an extensive rash in April 2010. Id. ¶ 6. He began experiencing hip pain, "depression, severe tinnitus and ‘brain fog,’ " conditions that "substantially affected his ability to work and interfered with every aspect of his life." Id. He received a blood test in August 2011, which indicated high levels of chromium and cobalt. Id. ¶ 7. After multiple years of uncertainty over the cause of his sufferings, "in June 2013, Mr. Rosbeck underwent revision surgery," and "[t]he operative reported indicate[d] that ‘the resurfacing unit had done some significant damage to the neck of the femur.’ " Id. ¶ 7. The system implanted into Mr. Rosbeck "could not withstand ordinary wear and tear, causing extremely elevated levels of cobalt and chromium ions to be released into his body and causing [Mr. Rosbeck's] medical problems, injures, and damages." Id. ¶ 20(a)(ix); see id. ¶¶ 21, 23. After this revision surgery, "Mr. Rosbeck's condition has improved and he has been able to return to a more healthy and productive lifestyle." Id. ¶ 7. Nevertheless, the entire episode inflicted Mr. Rosbeck with medical expenses, "years of debilitating physical and mental pain and anguish," millions of dollars of lost income, and a need for further "painful and invasive" medical procedures. Id. ¶ 25.

On April 29, 2015, the Rosbecks filed this suit in Suffolk Superior Court. Id. at 22. Mr. Rosbeck pled claims of negligence, breach of warranty, and unfair and deceptive trade practices under Mass. Gen. Laws ch. 93A against Corin and Howmedica, and breach of warranty claims against BWH. Id. ¶¶ 28, 32, 42. Mrs. Rosbeck alleges loss of consortium against all defendants. Id. ¶¶ 30, 45. Corin removed the case to this Court on July 15, 2014. Doc. No. 1.

III. Legal Standard

In Universal Truck , the First Circuit observed 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." 765 F.3d at 108.⁴ Universal Truck does not define what exactly constitutes a reasonable possibility. As another circuit has observed, "fraudulent joinder ... is rather easily defined, [but] it is much more difficul[t to] appl [y]." Filla v. Norfolk S. Ry. Co. , 336 F.3d 806, 809 (8th Cir.2003) ).

Clearly, if existing state law squarely precludes a plaintiff's claim against a non-diverse defendant, and such deficiency is "apparent from the face of the original complaint," the nondiverse defendant is fraudulently joined. See Universal Truck , 765 F.3d at 108 (finding fraudulent joinder when existing state law barred the claim); see also McCabe v. Gen. Foods Corp. , 811 F.2d 1336, 1339 (9th Cir.1987) ("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.") (citing Moore's Federal Practice (1986) ¶ O.161[2] )) (cited in Universal Truck , 765 F.3d at 108 n. 3 ) (emphasis added). The difficulty arises when no state apex court decision answers the question, notwithstanding indications (opinions in related areas, other jurisdictions' answers to the particular question, etc.) pointing in certain directions.

Generally speaking, federal courts, so long as they have jurisdiction , must "decide questions of state law whenever necessary to the rendition of a judgment," even when "the answers to the questions of state law are difficult or uncertain or have not yet been given by the highest court of the state." Meredith v. City of Winter Haven , 320 U.S. 228, 234–35, 64 S.Ct. 7, 88 L.Ed. 9 (1943). This motion, however, addresses an antecedent question —does the Court have jurisdiction? See Bobby Jones Garden Apartments, Inc. v. Suleski , 391 F.2d 172, 175 (5th Cir.1968) ("Unlike the parties who joust for victory on who wins or loses our sole concern is: Who tries the case? State or Federal Court?"). Bobby Jones explains how this distinction impacts the analysis:

"This is an Erie problem in part, but only part. In the usual diversity situation a Federal Court, no matter how difficult the task, must ascertain (and then apply) what the state law is. But here the question is whether there is arguably a reasonable basis for predicting that the state law might impose liability on the facts involved here. If that possibility exists, a good faith assertion of such an expectancy in a state court is not a shame, is not colorable and is not fraudulent in fact or in law."

Id. at 175–176 ; see also Filla , 336 F.3d at 811 ("Unlike most diversity cases (where a federal court is required to ascertain and apply state law no matter how onerous the task), here, the district court's task is limited to determining whether there is arguably a reasonable basis for predicting...