United States District Court, W.D. Kentucky
Decided: August 22, 2014.
For Joy Schilmiller, Plaintiff: Aaron Whaley, LEAD ATTORNEY, The Mory Law Office, PSC, Louisville, KY; Amanda L. Hartley, Robert D. Mattingly, LEAD ATTORNEYS, DeCamillis & Mattingly, 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 Mladen Djurasovic, Defendant: Andrew D. Pellino, Donald K. Brown, Jr., LEAD ATTORNEYS, O'Bryan, Brown & Toner PLLC, Louisville, KY.
For Community Medical Associates, Inc., Norton Enterprises, Inc., Norton Healthcare, Inc., Norton Hospital Leatherman Spine Center, ASC of Norton Hospitals, Inc., Norton Hospitals, Inc., Norton Neurosurgical Institute of Kentucky, ASC of Community Medical Associates, Inc, Norton Leatherman Spine Center, ASC of Community Medical Associates, 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, Joy Schilmiller (" Plaintiff" ), against the defendants, Medtronic, Inc., Medtronic USA, Inc., Medtronic Sofamor Danek USA, Inc., John Doe #1, John Doe #2, Mladen Djurasovic, M.D. (" Dr. Djurasovic" ), 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 12).
In November 2005, Plaintiff underwent a lumbar spinal fusion surgery that was performed by Dr. Djurasovic at Norton Hospital. During the surgery, Dr. Djurasovic 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. Djurasovic 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 November 5, 2013. (Compl., DN 1-2).
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 November 6, 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 12).
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).
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 ...