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Cole v. Medtronic, Inc.

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

April 13, 2015

NINA I. COLE, Plaintiff,
MEDTRONIC, INC., et al., Defendants.


DAVID J. HALE, District Judge.

This case was removed from Jefferson Circuit Court on May 19, 2014. Three and a half months later, Plaintiff Nina I. Cole filed a motion to remand (Docket No. 9), arguing that the Court lacks subject matter jurisdiction. Because the Court possesses diversity jurisdiction, the motion to remand will be denied.


According to the complaint, Cole 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 ¶ 70) 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 Cole's spine during a spinal fusion procedure at Norton Hospital in November 2012. (Id. at 79 ¶ 275) 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 ¶ 104) Cole alleges that as a result of the off-label use of Infuse, she developed "uncontrolled bone growth... and resulting nerve compression" near the site where Infuse was implanted. (Id. at 79 ¶ 279)

Cole further alleges that Medtronic knew off-label use of Infuse was dangerous but nevertheless actively promoted off-label applications, including to Cole's surgeon. ( See, e.g., id. at 10 ¶¶ 42-48) She asserts a variety of fraud and products-liability claims against Medtronic, as well as medical negligence by Norton Hospital. In addition to damages for past and future medical expenses, pain and suffering, and lost wages, she seeks punitive damages. ( See id. at 81-94)

Medtronic removed this case on the bases of federal question and diversity jurisdiction. ( See D.N. 1 at 3-16) As the Court concludes that the prerequisites for diversity jurisdiction are satisfied, only the latter requires analysis.[2]


According to Cole, 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. Cole has waived her objections to procedural defects in removal.

Cole's 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." Cole argues that remand is necessary under this rule because Defendant Norton Hospitals, Inc. is a citizen of Kentucky. She contends that Medtronic attempted to dodge the forum-defendant rule by filing its notice of removal before Norton Hospital had been served with the complaint. ( See D.N. 9-1 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, Cole missed her opportunity to seek remand on this ground because she filed her 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 ...

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