United States District Court, D. Maryland
IN RE SMITH & NEPHEW BIRMINGHAM HIP RESURFACING (BHR) HIP IMPLANT PRODUCTS LIABILITY LITIGATION
Smith & Nephew, et al. Charles Fondren, Civil No. CCB-19-998
Catherine C. Blake, United States District Judge
before the court is Charles Fondren's
("Fondren") motion to remand for lack of complete
diversity. See 28 U.S.C. § 1447(c). Smith &
Nephew, Inc. ("Smith & Nephew") removed this
case from the Circuit Court of Leflore County, Mississippi,
and contends that this court has jurisdiction under the
fraudulent joinder doctrine. For the reasons that follow, the
court will grant Fondren's motion to remand. The issues
have been fully briefed and no oral argument is necessary.
See Local Rule 105.6 (D. Md. 2018).
November 4, 2010, Fondren, a Mississippi resident, underwent
a total hip arthroplasty for his left hip at Greenwood
Leflore Hospital ("Greenwood Hospital") in
Greenwood, MississipPl. (Compl. ¶¶ 1, 12, ECF No.
2). Fondren's surgeon used Smith & Nephew's hip
implant device components-including the R3 acetabular liner,
the R3 shell, and modular femoral heads- in a configuration
that had not received premarket approval from the FDA.
(Id. ¶¶ 12-13, 18, 41). Fondren alleges
that Patrick Davis ("Davis"), a Mississippi citizen
and "agent and [sales] representative" for Smith
& Nephew "supplied, distributed, sold and/or
provided" the Smith & Nephew components that were
used in Fondren's total hip arthroplasty. (Id.
¶¶ 8, 14).
24, 2018, Fondren had revision surgery because of
"chronic and debilitating left hip pain."
(Id. ¶ 19). On October 1, 2018, Fondren filed
suit in the Circuit Court of Leflore County, Mississippi,
against Greenwood Hospital, Patrick Davis, Smith &
Nephew, Inc., and Smith & Nephew PLC. (Notice of Removal
at 1, ECF No. 1-1). Fondren alleged: (1) manufacturers'
product liability and failure to warn;(2) negligence,
negligent design and manufacturing, and negligent failure to
warn; and (3) breach of express and implied warranty of
merchantability and fitness. (Id. ¶¶
20-55). The negligence and negligent failure to warn claims
are brought against Greenwood Hospital and Davis. (Compl.
¶¶ 44-50, ECF No. 2).
December 27, 2018, Smith & Nephew removed the case to
this court, invoking the doctrine of fraudulent joinder.
(Notice of Removal, ECF No. 1-1).
argues that remand is appropriate because complete diversity
does not exist. Specifically, Fondren contends that Fondren
and defendants Greenwood Hospital and Davis are all citizens
of Mississippi for diversity purposes. (Pl. Mem. in Support
of Motion for Remand ¶¶ 4-6, ECF No. 8). Smith
& Nephew counters that defendants Greenwood Hospital and
Davis should be ignored for diversity purposes because they
were fraudulently joined. (Def. Opp. to Pl. Motion to Remand
at 1-2, ECF No. 14).
establish fraudulent joinder "the removing party must
show either 'outright fraud in the plaintiffs pleading of
jurisdictional facts' or that 'there is no
possibility that the plaintiff would be able to
establish a cause of action against the in-state defendant in
state court."' Johnson v. American Towers,
LLC, 781 F.3d 693, 704 (4th Cir. 2015) (quoting
Hartley v. CSX Transp., Inc., 187 F.3d 422, 424 (4th
Cir. 1999)). This is an exceptionally heavy burden that is
"more favorable to the plaintiff than the standard for
ruling on a motion to dismiss under Fed.R.Civ.P.
12(b)(6)." Johnson, 781 F.3d at 704 (quoting
Mayes v. Rapoport, 198 F.3d 457, 464 (4th Cir.
1999)). The removing party must demonstrate that "the
plaintiff cannot establish a claim even after resolving all
issues of law and fact in the plaintiffs favor.”
Johnson, 781 F.3d at 704 (quoting Hartley,
187 F.3d at 424). A plaintiffs claims against non-diverse
defendants "need not ultimately succeed to defeat
removal"; rather, the plaintiff "must show only a
'glimmer of hope' of succeeding against the
non-diverse defendants." Johnson, 781 F.3d at
704 (citing Marshall v. Manville Sales Corp., 6 F.3d
229, 223 (4th Cir. 1993); Mayes, 198 F.3d at 466).
& Nephew fails to meet this burden. First, Smith &
Nephew argues that Fondren cannot establish any cause of
action against Greenwood Hospital or Davis based on the
off-label use of the metal-on-metal device because the Food,
Drug and Cosmetic Act ("FDCA") "codifies"
a physician's right to use a device off-label. (Def. Opp.
at 1-2, ECF No. 14). See 21 U.S.C. § 396
("Nothing in this chapter shall be construed to limit or
interfere with the authority of a health care practitioner to
prescribe or administer any legally marketed device to a
patient for any condition or disease within a legitimate
health care practitioner-patient relationship."). But
Smith & Nephew is mistaken. While the FDCA does not
provide a federal cause of action against physicians for
off-label use of devices, or "limit or interfere"
with a physician's authority to administer medical
devices, it does not displace or narrow traditional state-law
negligence claims against physicians who breach a duty of
care in using a device off-label. And even if the court were
to accept Smith & Nephew's argument, it has no
bearing on the claims brought against Davis, a Smith &
Nephew sales representative.
Smith & Nephew argues that Fondren cannot state a claim
against Greenwood Hospital or Davis because they are
"innocent sellers" under the Mississippi Products
Liability Act ("MPLA"). (Def. Opp. at 3, ECF No.
14). See Miss. Code § 11-1-63(h); see also
Elliott v. El Paso Corp., 181 So.3d 263, 268 (Miss.
2015) ("[T]he MPLA has abrogated products-liability
claims based on strict-liability or negligence theories, and
the MPLA now provides the roadmap for such
claims."). To establish a cause of action under the
MPLA, Fondren must demonstrate that the product at issue was
defective because it "deviated in a material way from
the manufacturer's ... specifications," or because
"it failed to contain adequate warnings or
instructions," was "designed in a defective
manner" or because it "breached an express warranty
or failed to conform to other express factual representations
upon which the claimant justifiably relied in electing to use
the product." § 11-1-63(a)(i)(l)-(4).
MPLA further specifies that:
[T]he seller or designer of a product other than the
manufacturer shall not be liable unless[: (1)] the seller or
designer exercised substantial control over that aspect of
the design, testing, manufacture, packaging or labeling of
the product that caused the harm for which recovery of
damages is sought;  or the seller or designer altered
or modified the product, and the alteration or
modification was a substantial factor in causing the harm for
which recovery of damages is sought; or  the seller or
designer had actual or constructive knowledge of the
defective condition of the product at the time he
supplied the product. It is the intent of this section to
immunize innocent sellers who are not actively negligent, but
instead are mere conduits of a product.
§ 11-1-63(h) (emphasis added). Fondren contends that
Davis does not qualify as an "innocent seller"
because he altered or modified the product and because he had
actual or constructive knowledge that the off-label
combination of Smith & Nephew's total hip
arthroplasty components was defective. (Pl. Mem. in Support
of Motion for Remand ¶¶ 15-19, ECF No. 8). As an
exhibit to its briefing, Smith & Nephew includes an
affidavit from Davis that denies both actual and constructive
knowledge of ...