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Mauk v. Medtronic, Inc.

United States District Court, W.D. Kentucky

August 22, 2014

JACKIE C. MAUK et al., PLAINTIFFS
v.
MEDTRONIC, INC. et al., DEFENDANTS

Page 655

[Copyrighted Material Omitted]

Page 656

For Jackie C. Mauk, as Guardian of James B. Cornette, James B. Cornette, Plaintiffs: Amanda L. Hartley, Robert D. Mattingly, Sarah A. Chervenak, LEAD ATTORNEYS, DeCamillis & Mattingly, PLLC, Louisville, KY; Chris Meinhart, Ethan M. Manning, LEAD ATTORNEYS, Meinhart Smith & Manning PLLC, Louisville, KY.

For Medtronic, Inc., Medtronic Sofamor Danek USA, Inc., Medtronic USA, Inc., Defendants: Carol D. Browning, Julie McDonnell, LEAD ATTORNEYS, Stites & Harbison, PLLC - Louisville, Louisville, KY.

For Norton Hospitals, Inc., doing business as Norton Hospital, Norton Healthcare, Inc., Norton Hospital Leatherman Spine Center, ASC of Norton Hospitals, Inc., Norton Enterprises, Inc., Kosair Children's Hospital, ASC of Norton Hospitals, Inc., Kosair Children's Hospital Medical Associates, ASC of Community Medical Associates, Inc., Defendants: Allison Olczak Wildman, W. Kennedy Simpson, LEAD ATTORNEYS, Thompson Miller & Simpson PLC, Louisville, KY.

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MEMORANDUM OPINION

Charles R. Simpson III, Senior United States District Judge.

This matter is before the court on a motion to remand filed by the plaintiffs, Jackie C. Mauk, as Guardian of James B. Cornette, and James B. Cornette (" Cornette" ) (collectively, " Plaintiffs" ), against the defendants, Medtronic, Inc., Medtronic USA, Inc., Medtronic Sofamor Danek USA, Inc.,[1] John Doe #1, John Doe #2, Norton Hospitals, Inc., Norton Healthcare, Inc., Norton Hospital Leatherman Spine Center, Norton Enterprises, Inc., Kosair Children's Hospital, and Kosair Children's Hospital Medical Associates.[2](DN 16).

I.

On four separate occasions in September 2003, July 2009, February 2010, and January 2011, Cornette underwent spinal fusion surgeries that were performed at Norton Hospital. During the surgeries, Cornette's surgeons 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. Plaintiffs allege 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 [3] of Infuse. Plaintiffs claim that Cornette's surgeons used Infuse in such an off-label manner during Cornette's surgeries, and he allegedly suffered injuries as a result.

Plaintiffs, citizens of Indiana, filed this action in Jefferson County Circuit Court on October 30, 2013. (Compl., DN 1-1). In the complaint, Plaintiffs assert twelve state law causes of action against the defendants, including, inter alia, fraud, fraudulent misrepresentation, fraudulent omission, concealment and nondisclosure, strict products liability, negligence, breach of warranty, and violation of the Kentucky Consumer Protection Act. In sum, Plaintiffs allege 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

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regarding Infuse to consumers and the medical community. Plaintiffs seek punitive and compensatory damages for the damages Cornette allegedly suffered as a result of the off-label use of Infuse during his spinal fusion surgeries.

The Medtronic Defendants removed the case to this court on October 30, 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). Plaintiffs have moved to remand. (Mot. to Remand, DN 16).

II.

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 Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999) (citation omitted).

III.

The Medtronic Defendants assert two grounds on which they claim that this court has jurisdiction. First, they argue that the court has diversity jurisdiction because the parties are diverse and the amount in controversy exceeds the jurisdictional threshold of $75,000. Second, they contend that the court has federal question jurisdiction because Plaintiffs' complaint necessarily ...


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