United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. Miller, Jr. Judge
and Mary Marie filed suit in Louisiana state court against
defendants Biomet Inc.; Biomet Orthopedics, LLC; Biomet U.S.
Reconstruction, LLC; Biomet Manufacturing, LLC (collectively
Biomet); Boneafied Orthopaedics, Inc. (formerly known as
Vallette and Associates); and Steve Vallette, alleging
negligence, misrepresentation, claims under the Louisiana
Products Liability Act, violations of the Louisiana Unfair
Trade Practice and Consumer Protection Act, and loss of
consortium, all in relation to the alleged failure of Mr.
Marie's Biomet M2a-Magnum hip implant. The defendants
removed the case to the Eastern District of Louisiana based
on diversity of citizenship, and the Judicial Panel on
Multidistrict Litigation transferred the case into the Biomet
multi-district litigation docket in this court.
matter is before me on the Maries' motion to remand the
case to the Civil District Court of Jefferson Parish,
Louisiana, where the action originated. For diversity
purposes, the Maries and defendants Boneafied and Mr.
Vallette are citizens of Louisiana; the Biomet defendants are
citizens of Indiana. The defendants removed this case to
federal court based on their claim that the Maries can't
prevail on any of their claims against Boneafied and Mr.
Vallette, meaning they were fraudulently joined solely to
defeat diversity and their citizenship should be disregarded
for diversity purposes. The Maries counter that Boneafied and
Mr. Vallette are proper defendants, so complete diversity is
lacking and remand is proper. The Maries also ask that they
be awarded attorneys' fees for the costs they have
incurred in opposing Biomet's removal of this case to
Standard of Review
federal court to have jurisdiction over a suit based on
diversity, there must be complete diversity of citizenship;
no defendant may share the citizenship of any plaintiff. 28
U.S.C. § 1332(a). A plaintiff can't fraudulently
join a non-diverse defendant solely for the purpose of
destroying diversity jurisdiction. Schur v. L.A. Weight
Loss Ctrs., Inc., 577 F.3d 752, 763 (7th Cir. 2009).
“Fraudulent” in this context doesn't mean bad
faith on the plaintiff's part; it means that the claims
against the non-diverse defendant have no chance of success.
Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th
establish fraudulent joinder, a removing defendant must show
that, after resolving all issues of fact and law in favor of
the plaintiff, the plaintiff cannot establish a cause of
action against the in-state defendant.” Morris v.
Nuzzo, 718 F.3d 660, 666 (7th Cir. 2013) (internal
quotation marks omitted). The party seeking removal - or, as
here, resisting remand - bears the heavy burden of showing
that joinder was fraudulent. Schur v. L.A. Weight Loss
Ctrs., 577 F.3d 752, 763 (7th Cir. 2009). If the
removing defendant meets that heavy burden, the district
court “may disregard the nondiverse defendant”
for jurisdictional purposes, such that the fraudulent joinder
doctrine acts as “an exception to the requirement of
complete diversity.” Morris v. Nuzzo, 718 F.3d
660, 666 (7th Cir. 2013) (internal quotation marks omitted).
deciding whether a defendant has been fraudulently joined
isn't limited to the pleadings, but may also consider
evidence of the sort seen in summary judgment motions, such
as affidavits and deposition testimony. Millman v. Biomet
Orthopedics, Inc., No. 3:13-CV-77, 2013 WL 6498394, at
*2 (N.D. Ind. Dec. 10, 2013); Siegel v. H Group Holding,
Inc., No. 07 C 6830, 2008 WL 4547334, at *3 (N.D. Ill.
Apr. 9, 2008) (“[A] limited use of affidavits and other
evidence is permissible so long as the evidence is not used
to ‘pre-try' the case.”); see also Hack
v. SAI Rockville L, LLC, No. WDQ-14-1985, 2015 WL
795853, at *4 (D.Md. Feb. 24, 2015) (“The Court may
consider the entire record, not only the complaint, to
determine the basis of joinder by any means available. But,
it may not act as a factfinder or delve too far into the
merits in deciding a jurisdictional question.”)
(internal quotations marks and citations omitted). The
fraudulent joinder analysis requires a district court to
apply state law to determine whether the plaintiff would have
any reasonable possibility of success against the non-diverse
defendant in state court. Schur v. L.A. Weight Loss
Ctrs., 577 F.3d 752, 764 (7th Cir. 2009). The parties
agree that Louisiana law governs this case.
maintains that joinder of Boneafied and Mr. Vallette was
fraudulent. It contends that the Maries' complaint
doesn't contain allegations sufficient to state a failure
to warn claim, arguing that (1) Boneafied and Mr. Vallette
had no knowledge that the Magnum device was defective, (2)
Louisiana's learned intermediary doctrine shields them
from a duty to warn, and (3) they couldn't alter or
deviate from the FDA-approved labels and warnings supplied by
or Constructive Knowledge of a Defect
Louisiana law, “the seller of a defective product may
be liable in tort if he knew or should have known that the
product was defective, and he failed to declare it.”
Kelley v. Price-Macemon, Inc., 992 F.2d 1408, 1414
(5th Cir. 1993). Courts apply the same standard in cases
involving a product's distributor. See, e.g., Brown
v. Johnson & Johnson, Inc., No. CIV.A. 15-2308, 2015
WL 6128706, at *2 (E.D. La. Oct. 16, 2015).
asserts that neither Mr. Vallette nor Boneafied had knowledge
of any alleged risks associated with the Magnum device other
than what was in the device's warnings and instructions,
relying on the declarations of Mr. Vallette and Greg Baffes,
sales representative of Boneafied [Doc. No. 34-2 at 4; Doc.
No. 34-3 at 4]. The Maries allege in their complaint that
Boneafied and Mr. Vallette knew or should have known that the
Magnum device was not clinically safe [Doc. No. 21 at 12,
19]. The Maries claim that the defendants received “a
high number of reports and warnings from surgeons and others
regarding failed Magnum components” and “were
aware of defects and unreasonably high rates of problems with
the Magnum, including . . . high levels of metal wear causing
local and/or systematic damage in patients'
bodies.” Id. at ¶ 85, 91. Because I must
resolve all issues of fact in favor of the plaintiff when
considering Biomet's fraudulent joinder claim, I
can't find that Boneafied and Mr. Vallette didn't
know or shouldn't have known that the device was
allegedly defective. See Morris v. Nuzzo, 718 F.3d
660, 666 (7th Cir. 2013) (requiring that a court resolve all
issues of fact in favor of the plaintiff when considering
whether a defendant was fraudulently joined).
Learned Intermediary Doctrine
next argues that Boneafied and Mr. Vallette didn't owe a
duty to warn because, under the learned intermediary
doctrine, a duty to warn the physician is owed by the
manufacturer of the product, not the manufacturer's sales
representative or distributor. Instructive to my
determination of this question is Wells v. Medtronic,
Inc., 171 F.Supp.3d 493 (E.D. La. 2016), in which the
court considered whether a third party sales representative
for a medical device company was fraudulently joined. On a
set of facts similar to those before me in ...