United States District Court, W.D. Kentucky
CAROL A. HARDY, PLAINTIFF
MEDTRONIC, INC. et al., DEFENDANTS
For Carol A. Hardy, Plaintiff: Amanda L. Hartley, Robert D. Mattingly, LEAD ATTORNEYS, DeCamillis & Mattingly, PLLC, Louisville, KY; Chris Meinhart, Ethan M. Manning, LEAD ATTORNEYS, Meinhart Smith & Manning PLLC, Louisville, KY.
For Medtronic, Inc., Defendant: Julie McDonnell, LEAD ATTORNEY, Carol D. Browning, Stites & Harbison, PLLC - Louisville, Louisville, KY.
For Medtronic USA, Inc., Defendant: Medtronic Sofamor Danek USA, Inc., Carol D. Browning, Julie McDonnell, LEAD ATTORNEYS, Stites & Harbison, PLLC - Louisville, Louisville, KY.
For John R. Dimar M.D., II, Defendant: Andrew D. Pellino, LEAD ATTORNEY, Donald K. Brown, Jr., O'Bryan, Brown & Toner PLLC, Louisville, KY.
For Norton Leatherman Spine Center, ASC of Community Medical Associates, Inc., Norton Hospitals, Inc., Norton Hospital Leatherman Spine Center, ASC of Norton Hospitals, Inc., Norton Healthcare, Inc., Norton Enterprises, Inc., Defendants: W. Kennedy Simpson, LEAD ATTORNEY, Thompson Miller & Simpson PLC, Louisville, KY.
Charles R. Simpson III, Senior United States District Judge.
This matter is before the court on a motion to remand filed by the plaintiff,
Carol A. Hardy (" Plaintiff" ), against the defendants, Medtronic, Inc., Medtronic USA, Inc., Medtronic Sofamor Danek USA, Inc., John Doe #1, John Doe #2, John R. Dimar, II, M.D. (" Dr. Dimar" ), Community Medical Associates, Inc., Norton Leatherman Spine Center, Norton Neurosurgical Institute of Kentucky, Norton Hospitals, Inc., Norton Hospital Leatherman Spine Center, Norton Healthcare, Inc., and Norton Enterprises, Inc. (DN 13).
In November 2008, Plaintiff underwent two lumbar and thoracic spinal fusion surgeries that were performed by Dr. Dimar at Norton Hospital. During the surgeries, Dr. Dimar used a bio-engineered liquid bone graft product known as Infuse Bone Graft. Infuse was allegedly designed, developed, manufactured, promoted, and sold by the Medtronic Defendants. Plaintiff alleges that Infuse is approved by the Federal Drug Administration (" FDA" ) for use in a specific type of lumbar fusion surgery, and that the Medtronic Defendants have illegally promoted " off-label" use  of Infuse. Plaintiff claims that Dr. Dimar used Infuse in such an off-label manner during her surgeries, and she allegedly suffered injuries as a result.
Plaintiff, a citizen of Indiana, filed this action in Jefferson County Circuit Court on October 11, 2013. (Compl., DN 1-1). In the complaint, Plaintiff asserts fifteen state law causes of action against the defendants, including, inter alia, fraud, fraudulent misrepresentation, fraudulent omission, conspiracy to commit fraud, concealment and nondisclosure, strict products liability, negligence, breach of warranty, and violation of the Kentucky Consumer Protection Act. In sum, Plaintiff alleges that the Medtronic Defendants actively promoted the use of Infuse in manners not approved by the FDA, concealed the side effects associated with off-label use, and provided misleading information regarding Infuse to consumers and the medical community. Plaintiff seeks punitive and compensatory damages for the damages she allegedly suffered as a result of the off-label use of Infuse during her spinal fusion surgeries.
The Medtronic Defendants removed the case to this court on October 14, 2013, invoking our diversity of citizenship jurisdiction, as well as our federal-question jurisdiction to hear cases " arising under" federal law. (Notice of Removal, DN 1). Plaintiff has moved to remand. (Mot. to Remand, DN 13).
Pursuant to 28 U.S.C. § 1441(a), a civil action filed in state court is removable only if it could have originally been brought in federal court. 28 U.S.C. § 1441(a). Thus, " a district court must remand a removed case if it appears that the district court lacks subject matter jurisdiction." Chase Manhattan Mortg. Corp. v. Smith,
507 F.3d 910, 913 (6th Cir. 2007). One source of original jurisdiction is diversity of citizenship jurisdiction, which is present only in cases " where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States." 28 U.S.C. § 1332(a).
A second source of original jurisdiction is federal question jurisdiction, which is present only in cases " arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Such jurisdiction exists where " a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law" so that " federal law is a necessary element of one of the well-pleaded . . . claims." Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust, 463 U.S. 1, 13, 27-28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). However, " the plaintiff is the master of the claim," Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987), and " the fact that the wrong asserted could be addressed under either state or federal law does not . . . diminish the plaintiff's right to choose a state law cause of action." Alexander v. Electronic Data Sys. Corp., 13 F.3d 940, 943 (6th Cir. 1994) (citations omitted).
" A defendant seeking to remove a case to federal court has the burden of proving that the district court possesses jurisdiction." Williamson v. Aetna Life Ins. Co., 481 F.3d 369, 375 (6th Cir. 2007) (citation omitted). " All doubts as to the propriety of removal are resolved in favor of remand." Coyne v. American ...