United States District Court, W.D. Kentucky
For Diana Hubbard, Plaintiff: Amanda L. Hartley, Robert D. Mattingly, LEAD ATTORNEYS, DeCamillis & Mattingly, PLLC, Louisville, KY; Chris Meinhart, LEAD ATTORNEYS, Meinhart Smith & Manning PLLC, Louisville, KY.
For Medtronic, Inc., Medtronic USA, Inc., Medtronic Sofamor Danek USA, Inc., Defendants: Carol D. Browning, Julie McDonnell, LEAD ATTORNEYS, Stites & Harbison, PLLC, Louisville, Louisville, KY.
For MD Steven Glassman, Defendant: Andrew D. Pellino, Donald K. Brown, Jr., LEAD ATTORNEYS, O'Bryan, Brown & Toner PLLC, Louisville, KY.
For Community Medical Associates, Inc., Norton Leatherman Spine Center, ASC of Community Medical Associates, Inc., Norton Neurosurgical Institute of Kentucky, 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: Allison Olczak Wildman, W. Kennedy Simpson, LEAD ATTORNEYS, 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, Diana Hubbard (" Plaintiff" ), against the defendants, Medtronic, Inc., Medtronic USA, Inc., Medtronic Sofamor Danek USA, Inc., John Doe #1, John Doe #2,
Steven Glassman, M.D. (" Dr. Glassman" ), 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 17).
In January 2009, Plaintiff underwent a lumbar spinal fusion surgery that was performed by Dr. Glassman at Norton Hospital. During the surgery, Dr. Glassman 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 spinal fusion surgery, and that the Medtronic Defendants have illegally promoted " off-label" use  of Infuse. Plaintiff claims that Dr. Glassman used Infuse in such an off-label manner during her surgery, and she allegedly suffered injuries as a result.
Plaintiff, a citizen of Indiana, filed this action in Jefferson County Circuit Court on October 25, 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 surgery.
The Medtronic Defendants removed the case to this court on October 28, 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 17).
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 ...