Welborn v. Ethicon Inc.

• Decision Date: 12 December 2022
• Docket Number: 2:22-CV-92-PPS-JPK
• Parties: MICHAEL WELBORN and REBECCA WELBORN, Plaintiffs, v. ETHICON INC., and ANONYMOUS HEALTHCARE PROVIDERS A-F, Defendants.
• Court: U.S. District Court — Northern District of Indiana

MICHAEL WELBORN and REBECCA WELBORN, Plaintiffs,
v.
ETHICON INC., and ANONYMOUS HEALTHCARE PROVIDERS A-F, Defendants.

No. 2:22-CV-92-PPS-JPK

United States District Court, N.D. Indiana, Hammond Division

December 12, 2022

REPORT AND RECOMMENDATION ON [DE 21] and OPINION AND ORDER ON [DE 5] AND [DE 16]

JOSHUA P. KOLAR UNITED STATES DISTRICT COURT MAGISTRATE JUDGE

This action was filed in the Superior Court of Portage County, Indiana by Michael Welborn (“Plaintiff”) and his spouse, Rebecca Welborn (collectively “Plaintiffs”), and removed to this Court by Defendant Ethicon Inc. (“Ethicon”^[1]). Currently before the Court is Plaintiffs' motion to remand. [DE 21]. The motion to remand was referred to the undersigned by the presiding District Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See [DE 38]. Also before the Court is a motion to sever filed by Ethicon [DE 5], and a motion to stay [DE 16] filed by the other defendants named in the complaint-Anonymous Healthcare Providers A, B, C, D, E, and F (collectively the “Anonymous Defendants”). For the reasons discussed below, the Court recommends that Plaintiffs' motion to remand be granted as to the requested relief of a remand

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and denied as to the requested relief of fees and costs. The Court denies the motion to sever and the motion to stay.

BACKGROUND^[2]

The complaint alleges that, on March 6, 2020, Plaintiff underwent a thoracotomy, lower lobectomy, and mediastinal lymph node dissection on his right lung, and, as a result of the negligence of his healthcare providers, was left permanently paralyzed from the chest down. [DE 6 ¶¶ 46-47; DE 22 ¶¶ 2, 4-5]. Under the Indiana Medical Malpractice Act (“the MMA” or “the Act”), Ind. Code § 34-18-1 et seq., “before a party may commence a medical malpractice action against a health care provider in an Indiana trial court, the party's proposed complaint must first be presented to a medical review panel through the Department of Insurance, and the panel must render an opinion as to whether the defendant failed to act within the appropriate standard of care.” Lorenz v. Anonymous Physician #1, 51 N.E.3d 391, 395-96 (Ind. App. 2016) (citing Ind. Code § 34-18-8-4, § 34-18-10-22). In compliance with the Act, on August 19, 2020, Plaintiffs filed a proposed complaint with the Indiana Department of Insurance (“IDOI”) naming three healthcare providers involved in his surgery who allegedly bore responsibility for the outcome of that surgery. [DE 22 ¶ 6].

Upon Plaintiffs' filing of the proposed complaint, the IDOI convened a medical review panel to consider Plaintiffs' allegations of medical malpractice. At the last hearing on this matter, the parties reported that the panel had not yet issued a decision. As part of these proceedings before the IDOI, Plaintiffs served interrogatories asking, among other things, whether the responding health care provider contended that Plaintiff's injuries as alleged in the proposed complaint were

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caused in whole or in part by a defect in a drug, instrument, implement or other type of product, and if so, to identify the product. [DE 24-6 at 3-4]. On December 16, 2020, one of the healthcare providers responded to that interrogatory by identifying Surgicel Absorbable Hemostate (“Surgicel”), a medical product manufactured and distributed by Ethicon. [Id. at 4]. Plaintiffs then served supplemental interrogatories requesting further information regarding the claim that Surgicel was responsible in whole or in part for Plaintiff's injuries. [DE 24-7]. On February 25, 2022, the healthcare provider in question responded by stating that discovery was ongoing but “the medical records indicate that the Surgicel was found to be causing the spinal compression” and that, as part of their investigation of the failed surgery, the healthcare providers may have filed a report stating that a defective medical product caused the injury. [Id. at 3, 5, 6]. Following this last disclosure, on March 3, 2022, Plaintiffs filed an amended proposed complaint before the medical review panel adding three additional healthcare providers to their claims. [DE 24-8]. Around the same time, Plaintiffs also filed a complaint in state court alleging medical malpractice and related claims against Plaintiff's healthcare providers (Counts I-IV) and product liability claims against Ethicon (Counts V-VII). An additional count in the complaint (Count VIII) is against both Ethicon and Plaintiff's healthcare providers seeking damages for loss of consortium on behalf of Plaintiff's wife.

Under the MMA, a trial court “does not generally have jurisdiction over a medical malpractice action until proceedings before the Department of Insurance conclude. However, the Act does give a trial court limited authority to assert jurisdiction over threshold issues while a proposed complaint is pending before the medical review panel.” Lorenz, 51 N.E.3d at 396 (noting that the trial court may set a trial date, dismiss the action for failure to prosecute, compel discovery, or “preliminarily determine an affirmative defense or issue of law or fact” (citing Haggerty v. Anonymous Party 1,

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998 N.E.2d 286, 294 (Ind. App. 2013), and Ind. Code § 34-18-8-7(a)(3), § 34-18-8-8, § 34-18-11-1(a)(2), and § 34-18-11-4(a)(1))). If a patient files a contemporaneous action in court, the MMA provides that the complaint must not contain “information that would allow the defendant provider(s) to be identified” until an opinion is given by the medical review panel. Kho v. Pennington, 875 N.E.2d 208, 209 (Ind. 2007); see Ind. Code § 34-18-8-7(a)(1). In compliance with this confidentiality requirement, Plaintiffs' state court complaint did not identify the healthcare providers who they alleged were liable for Plaintiff's injuries, but instead referred to those providers in the case caption and body of the state court complaint as “Anonymous Healthcare Providers A-F.”

Ethicon was served with the state court complaint on March 15, 2022 [DE 1 ¶ 46], and it removed the case to this Court on April 14, 2022. All of the Anonymous Defendants have appeared in this action and participated in the proceedings.

DISCUSSION

I. MOTION TO REMAND [DE 21]

The following constitutes the undersigned's combined proposed findings and recommendations under 28 U.S.C. § 636(b)(1)(C) regarding Plaintiffs' motion to remand.

A. Legal Principles Governing Removal

“[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed ... to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). “To remove a case from a state court to a federal court, a defendant must file in the federal forum a notice of removal ‘containing a short and plain statement of the grounds for removal.'” Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 83 (2014) (quoting 28 U.S.C.

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§ 1446(a)). Once a case is removed to federal court, the district court must remand “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction.” 28 U.S.C. § 1447(c).

The removing defendant, as the party invoking federal jurisdiction, bears the burden of establishing that the district court has subject matter jurisdiction over the case. See Smart v. Local 702 Int'l Bhd. of Elec. Workers, 562 F.3d 798, 802-03 (7th Cir. 2009). To satisfy this burden, the removing defendant must show that federal court jurisdiction existed “both at the time of the original filing in state court and at the time of removal.” Altom Transport, Inc. v. Westchester Fire Ins. Co., 823 F.3d 416, 420 (7th Cir. 2016). “Federal courts must construe the removal statute narrowly, which creates a strong presumption in favor of remand.” Wolf v. Kennelly, 540 F.Supp.2d 955, 959 (N.D. Ill. 2008) (internal quotation marks and citation omitted); see also Wirtz Corp. v. United Distillers & Vintners N. Am., Inc., 224 F.3d 708, 715 (7th Cir. 2000) (Ripple, C.J., concurring) (“The removal statute should be construed narrowly and any doubts about the propriety of removing a particular action should be resolved against allowing removal.” (citing cases)). This protects the plaintiff's right to choose his or her own forum. See In re Amino Acid Lysine Antitrust Litig., 918 F.Supp. 1181, 1185 (N.D. Ill. 1996) (“While a defendant does have a right, given by statute, to remove in certain situations, plaintiff is still the master of his own claim. Defendant's right to remove and plaintiff's right to choose his forum are not on equal footing[.]” (quoting Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994)); see also Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009) (uncertainties regarding the existence of federal court jurisdiction upon removal should be resolved “in favor of the plaintiff's choice of forum in state court”).

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Although not directly relevant to the issues raised by the parties, the Court also notes that there are non-jurisdictional procedural requirements a removing defendant must satisfy. One such requirement is that “all defendants who have been properly joined and served must join in or consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A). While there are exceptions to this rule that allow for removal without the consent of all defendants, the Seventh Circuit has held that a notice of removal “filed by less than all of the named defendants is considered defective if it fails to contain an explanation for the absence of co-defendants.” N. Ill. Gas Co. v. Airco Indus. Gases, 676 F.2d 270, 272 (7th Cir. 1982) (citations omitted); see also Simmons ex rel. Simmons v. COA, Inc., No. 2:12 CV 39, 2012 WL 1947172, at *1 (N.D. Ind. May 30, 2012) (“A petition that omits the consent of all parties and does not provide an explanation is defective on...