Smith v. Hendricks

• Decision Date: 22 October 2015
• Docket Number: Civil Action No. 15–1226 (CKK)
• Citation: 140 F.Supp.3d 66
• Parties: Vicky Smith, Plaintiff v. Frederick B. Hendricks, M.D., et al., Defendants
• Court: U.S. District Court — District of Columbia

140 F.Supp.3d 66

Vicky Smith, Plaintiff

v.Frederick B. Hendricks, M.D., et al., Defendants

Civil Action No. 15–1226 (CKK)

United States District Court, District of Columbia.

Signed October 22, 2015

Bwo Marian Chou, Law Office of B. Marian Chou, Esq., Donna Michelle Beasley, Washington, DC, for Plaintiff.

John Chadwick Coots, Shook, Hardy & Bacon, L.L.P., Washington, DC, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY

, United States District Judge

Plaintiff Vicky Smith brought this action in the District of Columbia Superior Court against Defendants Dr. Frederick Hendricks, Medical Faculty Associates, Inc.,¹ and Boston Scientific in relation to injuries that she allegedly suffered after she was implanted with the "Advantage Transvaginal Mid–Urethral sling system." Compl. ¶ 27. Defendant Boston Scientific subsequently removed the case to this Court. Plaintiff brings medical malpractice claims against MFA and against Dr. Hendricks (collectively, the "Healthcare Provider Defendants") and product liability claims against Boston Scientific. Presently before this Court are the Healthcare Provider Defendants' [8] Motion to Dismiss; the Healthcare Provider Defendants' [11] Motion to Sever Claims Against Them and Remand Said Claims to D.C. Superior Court; Plaintiff's [16] Motion to Remand the Case Back to the Superior Court of the District of Columbia; and Boston Scientific's [12] Motion to Stay All Proceedings Pending Transfer to MDL No. 2326. In essence, Plaintiff seeks to have the entire case remanded to the Superior Court; by contrast, all of the defendants argue that the claims against the Healthcare Provider Defendants should be severed and remanded to the Superior Court (insofar as this Court does not dismiss them) while the claims against Boston Scientific remain in federal district court. Meanwhile, Boston Scientific has requested that the Panel on Multi–District Litigation transfer this case to the Southern District of West Virginia as part of the multi-district litigation pending there, under the caption In re Boston Scientific Corp. Pelvic Repair System Products Liability Litigation (MDL No. 2326), and has moved to stay the proceedings in this Court pending transfer to the Southern District of West Virginia.

The key threshold question is whether the Court has jurisdiction over this action in the first instance. In particular, the question is whether the citizenship of the Healthcare Provider Defendants can be disregarded for the diversity analysis in light of Defendants' arguments that they were either fraudulently or improperly joined. The Court's resolution of the other issues in the pending motions follows from its analysis of the jurisdictional question. The Court concludes that, although none of the Defendants were fraudulently joined, the claims against the Healthcare Provider Defendants were not properly joined to the claims against Boston Scientific. The Court concludes that it is proper to sever the claims against the Healthcare Provider Defendants and sever those Defendants, pursuant to Rule 21, preserving jurisdiction over the claims against Boston Scientific. Because the Court does not have jurisdiction over the claims against the Healthcare Provider Defendants, the Court holds in abeyance those defendants' motion to dismiss and remands that motion and the associated claims to the Superior Court. Therefore, upon consideration of the pleadings,² the relevant legal authorities, and the record for purposes of this motion, the Court HOLDS IN ABEYANCE and REMANDS the Healthcare Provider Defendants' [8] Motion to Dismiss for the District of Columbia Superior Court to decide that motion; GRANTS the Health Care Provider Defendants' [11] Motion to Sever Claims Against Them and Remand Said Claims to D.C. Superior Court; and DENIES Plaintiff's [16] Motion to Remand the Case Back to the Superior Court of the District of Columbia. The Court SEVERS the claims against the Healthcare Provider Defendants, SEVERS those defendants as parties, and REMANDS those claims back to the Superior Court. Having done so, the Court GRANTS Boston Scientific's [12] Motion to Stay All Proceedings Pending Transfer to MDL No. 2326 and STAYS this action until further order of the Court.

I. BACKGROUND

For the purposes of the motions before the Court, the Court accepts as true the well-pleaded allegations in Plaintiff's Complaint. The Court does "not accept as true, however, the plaintiff's legal conclusions or inferences that are unsupported by the facts alleged." Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C.Cir.2014)

. The Court limits its presentation of the background to the facts relevant to the issues discussed below.

Boston Scientific produces, designs, researches, distributes, sells, and promotes the Advantage Transvaginal Mid–Urethral Sling System ("Advantage"), which consists of implanted surgical mesh

devices, as a treatment for pelvic organ prolapse and stress urinary incontinence. Compl. ¶ 14. On October 20, 2008, the U.S. Food and Drug Administration ("FDA") issued a Public Health Notification to health care practitioners regarding adverse events relating to mesh products that had been reported to the FDA. Id. ¶ 61. On July 13, 2011, the FDA updated its Public Health Notification regarding "serious complications associated with surgical mesh for transvaginal mesh." Id. ¶ 62. Although the FDA did not address specific manufacturers or brand names in its Public Health Notification, the FDA Manufacturers and User Facility Device Experience database includes hundreds of injury reports arising from Advantage implants. Id. ¶ 64. Boston Scientific continued to promote Advantage and continues to claim that its reformed model Advantage Fit System provides safe and effective alternatives to other treatments. Id. ¶ 71. Boston Advantage has not included warnings or adverse event disclosures on its web page or brochures for the Advantage Fit System. Id. ¶ 72. Plaintiff further alleges that Boston Scientific knew or should have known that Advantage was defective, id. ¶ 65, and that Boston Scientific failed to disclose complications and adverse events arising from the use of Advantage, id. ¶ 70.

Meanwhile, on April 9, 2012, Plaintiff was referred to Medical Faculty Associates with complaints of recurrent urinary tract infections

and stress urinary incontinence. Id. ¶ 18. After several initial tests and consultation with Dr. Hendricks, id. ¶¶ 19–21, Dr. Hendricks performed surgery on Plaintiff on June 21, 2012, including a cystoscopy and implanting the Advantage sling system, id. ¶ 27. While Dr. Hendricks recorded in Plaintiff's medical records that he had a thorough discussion with Plaintiff prior to the operation, Plaintiff alleges that she did not receive an explanation and that they did not have any discussion. Id. ¶¶ 22–23. Plaintiff maintains that she did not receive any literature other than a "simple consent form," and that she never received any information regarding complications with the use of the mesh device. Id. ¶¶ 23, 25. Plaintiff began experiencing full scale abdominal pain on June 23, 2012, id. ¶ 28, and additional complications and adverse events followed, including continuous post-menopausal bleeding and sever lower back pain, id. ¶ 33. After receiving subsequent treatment and surgery at Providence Hospital in 2013, id. ¶¶ 33–39, Plaintiff was seen again by Dr. Hendricks during April and May 2014, id. ¶¶ 40–44. Subsequently, Plaintiff continued to suffer adverse health effects and was treated by other medical practitioners, including surgery that was conducted by those practitioners. See id. ¶¶ 45–55.

Plaintiff filed the Complaint in the District of Columbia Superior Court on June 22, 2015—which Boston Scientific subsequently removed to this Court—bringing claims in connection with medical complications that allegedly resulted from medical procedures that Defendant Dr. Frederick Hendricks performed on Plaintiff, including implanting the Boston Scientific Advantage Transvaginal Mid–Urethral sling system. Plaintiff brings claims for medical negligence (count I) and lack of informed consent (count II) against Dr. Hendricks and against Medical Faculty Associates, the medical practice of which Dr. Hendricks is an employee or agent. Id. ¶¶ 76–77. Plaintiff brings claims against Boston Scientific for negligent manufacture of a defective product (count III), breach of duty to warn (count IV), negligent product design (count V), breach of implied warranty of merchantability (count VI), breach of implied warranty of fitness for a particular purpose (count VII), breach of express warranty (count VIII), fraudulent misrepresentation (count IX), and fraud by concealment (count XI). In addition, Plaintiff also brings a claims for violation of the D.C. consumer protection statutes against both Dr. Hendricks and Boston Scientific (count X). In addition to the damages that Plaintiff seeks with respect to the individual claims, Plaintiff seeks punitive damages from all defendants (count XII). Defendant Boston Scientific filed the [1] Notice of Removal on July 29, 2015, and the motions that are now pending before the Court were subsequently filed and briefed.

II. LEGAL STANDARD

"Federal courts are courts of limited jurisdiction" and can adjudicate only those cases entrusted to them by the Constitution or an Act of Congress. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)

. A defendant has the right to remove to federal court an action brought in state court where the federal court has original subject matter jurisdiction, including when it has jurisdiction on the basis of diversity of citizenship. 28 U.S.C. § 1441(a). Diversity jurisdiction exists when the action involves citizens of different states, and the amount in controversy exceeds $75,000.00 per plaintiff, exclusive of interest and costs. 28 U.S.C. § 1332(a). "When a plaintiff sues more than one defendant in...