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Fryrear v. Medtronic, Inc.

United States District Court, W.D. Kentucky, Louisville Division

April 13, 2015

CINDY FRYREAR and PAUL FRYREAR, Plaintiffs,
v.
MEDTRONIC, INC., et al., Defendants.

MEMORANDUM OPINION AND ORDER [1]

DAVID J. HALE, District Judge.

This case was removed from Jefferson Circuit Court on January 23, 2014. Seven and a half months later, Plaintiffs Cindy Fryrear and Paul Fryrear filed a motion to remand (Docket No. 7), arguing that the Court lacks subject matter jurisdiction. Because the Court possesses diversity jurisdiction over the case, the motion to remand will be denied.

I. BACKGROUND

According to the complaint, Cindy Fryrear was injured by a product called Infuse Bone Graft, which is "a genetically engineered material containing a bone morphogenetic protein (rhBMP-2')" used "to help fuse the vertebrae in the spine as part of [a] spinal fusion surgery." (D.N. 1-2 at 15 ¶ 69) Infuse is designed, manufactured, and marketed by Defendant Medtronic Sofamor Danek USA, Inc., a division of Defendant Medtronic, Inc. (collectively referred to herein as Medtronic). (Id. at 2 ¶ 2) It was implanted in Cindy Fryrear's spine during a spinal fusion procedure at Jewish Hospital in October 2004. (Id. at 78 ¶ 274) This use of Infuse was "off-label, " meaning that it was an application of the product not approved by the Food and Drug Administration. (Id.; see id. at 21 ¶ 103) Plaintiffs allege that as a result of the off-label use of Infuse, Cindy Fryrear developed "uncontrolled bone growth... and resulting nerve compression" near the site where Infuse was implanted. (Id. at 79 ¶ 278)

Plaintiffs further allege that Medtronic knew off-label use of Infuse was dangerous but nevertheless actively promoted off-label applications, including to Cindy Fryrear's surgeon. ( See, e.g., id. at 10 ¶¶ 41-47) They assert a variety of fraud and products-liability claims against Medtronic, as well as medical negligence by Jewish Hospital. In addition to damages for past and future medical expenses, pain and suffering, and lost wages, they seek punitive damages. ( See id. at 80-95) Paul Fryrear asserts a claim for loss of consortium. (Id. at 92)

Medtronic removed this case on the bases of federal question and diversity jurisdiction. ( See D.N. 1 at 3-15) As the Court concludes that the prerequisites for diversity jurisdiction are satisfied, only the latter requires analysis.[2]

II. ANALYSIS

According to Plaintiffs, diversity jurisdiction is lacking for three reasons: first, the presence of a Kentucky defendant violates the forum-defendant rule; second, Medtronic did not obtain unanimous consent to removal; and third, Medtronic has not established that the amount in controversy exceeds the jurisdictional threshold. The first two arguments are untimely, and the third is unpersuasive.

A. Plaintiffs have waived their objections to procedural defects in removal.

Plaintiffs' contentions regarding the forum-defendant rule and the rule of unanimity appear to have merit. Unfortunately, they come too late.

1. Forum-defendant rule

The forum-defendant rule, found in 28 U.S.C. § 1441(b)(2), provides that "[a] civil action otherwise removable solely on the basis of [diversity jurisdiction] may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." Plaintiffs argue that remand is necessary under this rule because Defendant Jewish Hospital is a citizen of Kentucky.[3] They contend that Medtronic attempted to dodge the forum-defendant rule by filing its notice of removal before Jewish Hospital had been served with the complaint. ( See D.N. 7-1 at 8-11)

The Court found this argument persuasive in similar cases. See, e.g., Padgett v. Medtronic, Inc., 41 F.Supp. 3d 582, 586-89 (W.D. Ky. 2014). Here, however, Plaintiffs missed their opportunity to seek remand on this ground because they filed their motion to remand well beyond the statutory deadline. Pursuant to 28 U.S.C. § 1447(c), "[a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal." The statute thus draws "a distinction... between defects in removal procedure, which are waived unless raised in a plaintiff's motion within thirty days after removal, and lack of subject matter jurisdiction, which requires the court to remand at any time prior to final judgment." Page v. City of Southfield, 45 F.3d 128, 133 (6th Cir. 1995). The Sixth Circuit has held that the forum-defendant rule is procedural and will be waived if not raised in a timely motion to remand. Southwell v. Summit View of Farragut, LLC, 494 F.Appx. ...


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