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In re Smith & Nephew Birmingham Hip Resurfacing (BHR) Hip Implant Products Liability Litigation

United States District Court, D. Maryland

August 22, 2019

IN RE SMITH & NEPHEW BIRMINGHAM HIP RESURFACING (BHR) HIP IMPLANT PRODUCTS LIABILITY LITIGATION
v.
Smith & Nephew, et al. Charles Fondren, Civil No. CCB-19-998

          MEMORANDUM

          Catherine C. Blake, United States District Judge

         Pending 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).

         BACKGROUND

         On 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).

         On May 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).

         On December 27, 2018, Smith & Nephew removed the case to this court, invoking the doctrine of fraudulent joinder. (Notice of Removal, ECF No. 1-1).

         ANALYSIS

         Fondren 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).

         To 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).

         Smith & 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.[1] 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.

         Second, 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.").[2] 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).

         The 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; [2] 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 [3] 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 ...


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