United States District Court, S.D. Florida
OMNIBUS ORDER REMANDING CASES
L. ROSENBERG UNITED STATES DISTRICT JUDGE
cause is before the Court on Motions to Remand filed by
Plaintiffs in each of the above-captioned cases. Defendant
Aesculap Implant Systems, LLC (“Aesculapâ), 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
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.
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
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).
Strict Products Liability
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.
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).
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).
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 ...