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Sullivan v. Calvert Mem. Hosp.

United States District Court, D. Maryland

July 30, 2015

LEEANNE MARIE SULLIVAN, Plaintiff
v.
CALVERT MEMORIAL HOSPITAL, et al., Defendants

For Leeanne Marie Sullivan, Plaintiff: Kimm Hudley Massey, LEAD ATTORNEY, Law Offices of Kimm Massey, Greenbelt, MD.

For Calvert Memorial Hospital, Defendant: Craig B Merkle, Goodell DeVries Leech and Dann LLP, Baltimore, MD; Erica C Mudd, Armstrong Donohue Ceppos Vaughan and Rhoades Chtd, Rockville, MD.

For Jeffrey Welgoss, M.D., Defendant: Andrew E Vernick, LEAD ATTORNEY, Vernick & Associates, LLC, Annapolis, MD.

For Barbara Kutrtz Estes, M.D., Mary Davis, RN, Defendants: Craig B Merkle, Goodell DeVries Leech and Dann LLP, Baltimore, MD.

For Patricia Gauch, RN, Defendant: Erica C Mudd, LEAD ATTORNEY, Armstrong Donohue Ceppos Vaughan and Rhoades Chtd, Rockville, MD.

For Johnson & Johnson, Ethicon US, LLC, Defendants: Bruce R Parker, Shannon Elizabeth Beamer, LEAD ATTORNEYS, Venable LLP, Baltimore, MD.

Page 703

MEMORANDUM OPINION

PETER J. MESSITTE, UNITED STATES DISTRICT JUDGE.

Leeanne Marie Sullivan (" Sullivan" ) has asserted medical negligence claims against Jeffrey Welgoss, MD, Barbara Kurtz Estes. MD, Patricia Gauch, RN, Marie Davis, RN, Alexandria Mason, ORT, and Calvert Memorial Hospital (collectively, " the Maryland Healthcare Defendants" ) for injuries resulting from her surgery at Calvert Memorial Hospital. She also brings products liability claims against Ethicon, Inc.-- the manufacturer of a medical device that the surgical team implanted in her during the surgery-- and its parent company, Johnson & Johnson (collectively, " the Ethicon Defendants" ).

Suit was originally filed in the Circuit Court of Calvert County. The Ethicon Defendants removed the case to this Court on the basis of true diversity jurisdiction on April 29, 2015.[1] ECF No. I. On the same day, the Ethicon Defendants filed a Motion to Sever the claims brought against it from the claims brought against the Maryland Healthcare Defendants. ECF NO.7. Sullivan opposes the Motion to Sever, and has moved to remand the case to state court. ECF No. 19.

For the following reasons, the Court GRANTS the Ethicon Defendants' Motion to Sever and GRANTS-IN-PART AND DENIES-IN-PART Sullivan's Motion to Remand.

A.

Factual and Procedural Background

According to the Complaint, on November 8, 2011, Sullivan underwent surgical procedures at Calvert Memorial Hospital in Prince Frederick. During the course of the surgery, Jeffrey Welgoss, MD and his surgical team, including Barbara Kurtz Estes, MD, Patricia Gauch, RN, Marie Davis, RN, and Alexandria Mason, ORT, inserted a catheter into Sullivan's bladder. The team also inserted a transvaginal sling (TVT) into her pelvic region. The TVT had been manufactured by Ethicon, Inc. At the conclusion of the surgery, a member of the surgical team was tasked with removing the catheter. Unbeknownst to Sullivan, however, that team member failed to fully remove the catheter, and left a piece of it in her bladder. On or about the first day after the surgery, Sullivan began experiencing extreme pain and discomfort. On March 5, 2012, Dr. Welgoss attempted, unsuccessfully, to remove the piece of catheter, but instead removed a piece of Sullivan's urethra. The same day, Sullivan was admitted to INOVA Hospital in Fairfax, Virginia, where the piece of catheter was removed from her bladder. She continued to experience pain and discomfort after the removal. Sullivan alleges that at the same time she suffered pain and discomfort as a result of the indwelling piece of catheter she also suffered as a result of the Ethicon Defendants' TVT sling implanted in her. See Compl. ¶ ¶ 12-22, 54, ECF NO. 2.

Sullivan brings four counts of negligence against the Maryland Healthcare

Page 704

Defendants. Count I alleges medical negligence for failure to remove a foreign object (i.e. the piece of the catheter) from her bladder before discharging her from the hospital. Count II alleges medical negligence based on the doctrine of res ipsa loquitor, positing that the fact that a portion of the catheter remained in her bladder after the surgery speaks for itself that there was negligence. Count III alleges negligence for failing to properly perform the surgery, causing Sullivan's pre-operative conditions and complaints to remain unresolved. Count IV alleges medical negligence against the surgical team for installing an unsafe, dangerous, and defective TVT sling product. Count V alleges vicarious liability against Calvert Memorial Hospital based on the four counts of negligence allegedly committed by the surgical team.

Sullivan also asserts four counts against the Ethicon Defendants. Count VI alleges strict products liability for failure to warn of the dangers of the TVT sling. Count VII alleges that the Ethicon Defendants were negligent in failing to warn about the risks of the TVT sling when used as designed. Count VIII alleges that the Ethicon Defendants are liable for the negligent provision of a dangerous instrument that was unreasonably dangerous when put to a reasonably anticipated use without the user having knowledge of its characteristics. Count IX ...


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