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In re Aesculap Implant Systems LLC

United States District Court, S.D. Florida

December 30, 2019

IN RE: AESCULAP IMPLANT SYSTEMS LLC, ET AL.

          OMNIBUS ORDER REMANDING CASES

          ROBIN L. ROSENBERG UNITED STATES DISTRICT JUDGE

         This cause is before the Court on Motions to Remand filed by Plaintiffs in each of the above-captioned cases. Defendant Aesculap Implant Systems, LLC (“Aesculap”), has filed a response to each Motion. The Court has considered the Motions and the record in each case and is otherwise fully advised in the premises. For the reasons that follow, the Motions are GRANTED.

         I. BACKGROUND

         Plaintiffs in each case allege that they were injured by an orthopedic knee-replacement implant manufactured by Aesculap, a Delaware corporation with its principal place of business in Pennsylvania. They allege that the implant's Teflon-like coating prevents a chemical bond with the patient's bone, instead requiring a mechanical bond which is prone to fail. This results in pain and necessitates a revision surgery. Plaintiffs further allege that Defendants Bended Knee Joint Technologies, LLC (“Bended Knee”) and Michael McGee, both Florida citizens, promoted, marketed, sold, and/or distributed the implants for Aesculap within the state of Florida. Plaintiffs sue all Defendants under strict-liability theories of failure to warn and defective design, negligence, and negligent misrepresentation.

         All cases were filed in the Nineteenth Judicial Circuit Court of Indian River, Florida. Aesculap removed the cases, alleging that Bended Knee and McGee were fraudulently joined to defeat diversity jurisdiction. Plaintiffs move for remand, arguing that Bended Knee and McGee are proper parties to these actions.

         II. LEGAL STANDARD

         Diversity jurisdiction under 28 U.S.C. § 1332(a) requires complete diversity; “all plaintiffs must be diverse from all defendants.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 412 (11th Cir. 1999). Fraudulent joinder is a doctrine under which courts must ignore a non-diverse defendant and deny a motion to remand to state court if it is established that the non-diverse defendant was included solely to defeat diversity jurisdiction. Henderson v. Wash. Nat'l Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006). To establish fraudulent joinder, the removing party must prove by clear and convincing evidence that there is no possibility that the plaintiff can state a claim against the non-diverse defendant. Id. Under this “heavy” burden, courts must remand if the plaintiff “states even a colorable claim against the resident defendant.” Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1380 (11th Cir. 1998). A ruling on fraudulent joinder “must be based on the plaintiff's pleadings at the time of removal, supplemented by any affidavits and deposition transcripts submitted by the parties.” Id. “[T]he district court must evaluate the factual allegations in the light most favorable to the plaintiff and must resolve any uncertainties about state substantive law in favor of the plaintiff.” Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997).

         III. ANALYSIS

         a. Strict Products Liability

         To state a claim for strict liability, the plaintiff must show: (1) the defendant sold a product in a defective condition unreasonably dangerous to the user, (2) the defendant is engaged in the business of selling such a product, (3) the product is expected to and does reach the user without substantial change in its condition, and (4) the user or her property is physically harmed as a result. West v. Caterpillar Tractor Co., 336 So.2d 80, 84 (Fla. 1976). The doctrine of strict liability is based on the principle that “those entities within a product's distributive chain ‘who profit from the sale or distribution of [the product] to the public, rather than an innocent person injured by it, should bear the financial burden of even an undetectable product defect.” Samuel Friedland Family Enter. v. Amoroso, 630 So.2d 1067, 1068 (Fla. 1994). Although traditionally applied to manufacturers, “Florida courts have expanded the doctrine of strict liability to others in the distributive chain including retailers, wholesalers, and distributors.” Id. Plaintiffs allege that Bended Knee and McGee act as distributors with respect to the implants at issue as the basis for their strict-liability claim against these Defendants.

         Although Florida courts have considered numerous factors in determining whether a defendant is part of a product's distributive chain, the most important is the degree of control the defendant exercised over the product. Although “a plaintiff need not prove the defendant was ever in physical possession, ” the defendant must have “possessed some element of ‘control over the allegedly defective product.'” Devore v. Howmedica Osteonics Corp., 658 F.Supp.2d 1372, 1379 (M.D. Fla. 2009) (quoting Rivera v. Baby Trend, Inc., 914 So.2d 1102, 1104 (Fla. Dist. Ct. App. 2005)). Other considerations include “whether the person or entity placed the product in the stream of commerce, is in a position to control the risk of harm a product might cause once put into the stream of commerce, or either created or assumed the risk of harm for the defective product.” Rivera, 914 So.2d at 1104 (citation and internal quotation marks omitted).

         In Rivera, a provider of baby strollers (Baby Trend) was properly sued under a strict-liability theory, even though it was neither a manufacturer nor a retailer. Concluding that Baby Trend was “in the distributive chain, ” the court noted that it was “the actual seller of the product, marketed the product under the Baby Trend name, and accepted payment for the product.” Id. at 1104-05. Baby Trend also exercised “some control over the design of the product to ensure compliance with safety regulations.” Id. at 1105. On the other hand, a manufacturer's representative was not part of the distributive chain in Siemens Energy & Automation, Inc. v. Medina. There, the defendant provided printed specifications to the purchaser of an electric conductor, and there was some evidence that the defendant altered certain price information on the specifications form. Siemens Ener. & Automation, Inc. v. Medina, 719 So.2d 312, 314 (Fla. Dist. Ct. App. 1998). The Court concluded that the defendant was not a distributor but rather was a mere “conduit of information” between the manufacturer and purchaser, and there was no evidence that defendant's act of changing a price term on the specifications sheet “had any causal relationship with the alleged defect.” Id. at 315. Distributors of medical products may be held strictly liable, but in the medical-device context, “the health care provider is in fact more akin to the consumer or user of the product.” Porter v. Rosenberg, 650 So.2d 79, 82 (Fla. Dist. Ct. App. 1995).

         b. Fraudulent Joinder

         Aesculap asserts that McGee, and by extension Bended Knee, is a mere sales representative, not a distributor, and therefore is not within the distributive chain of the implants at issue. Aesculap submitted two declarations in support of that argument. The first is a declaration by McGee, attached to the Notice of Removal in each case. McGee states that he served as a “sales representative” for Aesculap, and he “sold AIS knee implants devices to Sebastian River Medical Center for use by Dr. Omar Hussamy in total and partial knee replacement surgeries, ” but he never “distributed or sold AIS medical devices directly to patients.” McGee Decl. at 1 ¶¶ 3-5. McGee visited doctors' offices to promote Aesculap devices and provided Aesculap's sales literature and product descriptions to doctors, but he did not make any representations beyond what ...


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