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Courville v. Ethicon US, LLC

United States District Court, W.D. Louisiana, Lake Charles Division

August 29, 2018




         Before the court is a Motion to Remand [doc. 7] filed by plaintiff Robert Courville. Defendant Ethicon US, LLC (“Ethicon”) opposes the motion and Courville has filed a reply. Docs. 15, 16.

         This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636. For the reasons stated below, IT IS RECOMMENDED that plaintiff's motion be DENIED and that all claims against defendant Christus Health Southwestern Louisiana be DISMISSED WITHOUT PREJUDICE.



         This suit arises from injuries that Courville claims he received during two surgeries, performed in December 2016 and March 2017 at a hospital owned by Christus Health Southwestern Louisiana (“Christus”) in Lake Charles, Louisiana. Doc. 1, att. 2, p. 2. Courville alleges that he sustained grave complications in both operations, resulting from malfunctions in staplers manufactured by Ethicon, a subsidiary of defendant Johnson & Johnson, Inc. Id. at 2-3.

         Courville, a Louisiana resident, filed suit in the 14th Judicial District Court, Calcasieu Parish, Louisiana, on January 19, 2018. Id. at 1-7. As defendants he names Ethicon; Johnson & Johnson, Inc.; Owens & Minor Distribution, Inc. (alleged distributor of the Ethicon staplers); and Christus. Id. at p. 1. Courville asserts that Christus is the only defendant that is a Louisiana citizen. Id. Ethicon removed the suit to this court on the basis of diversity jurisdiction, 28 U.S.C. § 1332. Doc. 1, p. 1. Although it acknowledges that Christus is non-diverse, Ethicon contends that jurisdiction is proper because Christus was improperly joined. Id. at 1, 5. Courville then filed the instant motion, arguing that remand is required because Christus is an indispensable party.[1] Doc. 7, att. 1.


         Law and Analysis

         The removing party bears the burden of showing that removal was procedurally proper and federal jurisdiction exists. See De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). Any civil action brought in a State court of which the district courts have original jurisdiction may be removed to the proper district court. 28 U.S.C. § 1441(a). If removal is based on diversity of citizenship, the action is removable only if there is complete diversity, which is found where “none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b). “Jurisdictional facts are determined at the time of removal, not by subsequent events.” Louisiana v. Am. Nat'l Prop. & Cas. Co., 746 F.3d 633, 635 (5th Cir. 2014).

         If removal is based on a claim that a non-diverse party has been improperly joined, then the removing party must establish either “actual fraud in the pleading of jurisdictional facts” or “an inability of the plaintiff to establish a cause of action against the non-diverse party in state court.” Smallwood v. Ill. Cent. R.R., 385 F.3d 568, 573 (5th Cir. 2004) (citing Travis v. Irby, 326 F.3d 644 (5th Cir. 2003)). Only the latter method is relevant here because the defendant does not allege fraud. Thus, the question is whether the defendant has shown that there is no reasonable basis by which the plaintiff can recover under applicable state law. Smallwood, 385 F.3d at 573. A mere theoretical possibility of recovery is insufficient. See Travis, 326 F.3d at 648. In reviewing a claim for improper joinder, all factual allegations are evaluated in the light most favorable to the plaintiff, with all contested issues of substantive fact resolved in plaintiff's favor. Guillory v. PPG Industries, Inc., 434 F.3d 303, 309 (5th Cir. 2005).

         Ethicon asserts that Christus is a qualified medical provider under the Louisiana Medical Malpractice Act (“LMMA”), La. R.S. § 40:1231.1 et seq. Doc. 15, p. 3. Because a medical review panel had not issued a decision on the merits of Courville's claims against Christus before Courville filed suit, Ethicon maintains that the procedural requirements of the LMMA were not met. Id. at pp. 2-3 (citing Flagg v. Stryker Corp., 819 F.3d 132 (5th Cir. 2016)). Thus, it urges this court to find that Christus was improperly joined and deny the motion to remand. Id. at p. 3.

         The LMMA governs malpractice claims brought against qualified health care providers. La. R.S. § 40:1231.1. Health care providers include hospitals and treatment facilities. Id. at § 1231.1(A)(10). Malpractice is “any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient … .” Id. at § 1231.1(A)(13). A plaintiff must first present malpractice claims to a medical review panel and cannot file suit until the panel issues an opinion on the merits. Flagg, 819 F.3d at 137-38 (citations omitted). Failure to exhaust the procedural requirements of the LMMA before filing suit compels dismissal of the claims without prejudice. Id.

         Courville contends that remand is required because Christus is non-diverse and all of his claims must be tried together as they are “inextricably intertwined.” Doc. 16, pp. 1-2. Alternatively, he asks that the litigation be stayed in this court pending the review panel's opinion. Id. at p. 3. For support, Courville relies on Johnson v. Scimed, Inc., 92 F.Supp.2d 587 (W.D. La. 2000). There, the plaintiffs submitted claims to a medical review panel, alleging malpractice against a medical center and two doctors, each of whom was non-diverse. Id. at 588. The next day, they brought suit in Louisiana state court against the manufacturer of allegedly defective stents and the non-diverse defendants. Id. The manufacturer removed the case to federal court, argued that the non-diverse defendants were improperly joined because the medical review panel had not yet issued an opinion on the malpractice claims and thus the suit was premature. Id. Plaintiffs sought remand, and the district court reasoned that they had stated a valid cause of action for malpractice because, although their claims would likely have been dismissed as premature in state court, the LMMA's requirement that a review panel issue an opinion before suit could be filed was merely procedural. Id. at 592. The court further reasoned that denying remand would ...

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