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Another Severance Of Med Mal Claims To Preserve Diversity As To Products Defendants

By James M. Beck and Mark Herrmann

We posted earlier this month about Joseph v. Baxter, in which Judge James Carr (of the Northern District of Ohio) severed and remanded claims against the non-diverse health care providers to create diversity as to the drug company defendant.

We raised a few questions at the end of that post, asking, among other things, whether the holding was limited to situations where (1) the drug company removed before it was aware that health care providers had been named as defendants or (2) a federal multidistrict litigation proceeding was pending.

Judge Carr's back!

And we learned moments ago that the answer is "no" -- to both of our questions!

In Judge Carr's court, if a plaintiff sues both non-diverse health care providers (on medical malpractice claims) and an out-of-state drug company (on product liability claims), the federal court can sever and remand the med mal claims and retain jurisdiction over the then-diverse products claims.

That's the result in DeGidio v. Centocor, No. 3:09CV721, slip op. (N.D. Ohio June 29, 2009) (here's a link). Ohio citizen DeGidio sued non-resident drug companies -- Centocor, Johnson & Johnson, and Ortho-McNeil Pharmaceutical -- on product liability claims and, in the same complaint, sued Ohio resident health care providers -- Dr. Ray Miller and Nurse Jane Doe -- on medical malpractice claims related to DeGidio's ingestion of the drug Remicade.

The drug companies rolled all their strength up into one ball and removed the case to federal court. DeGidio moved to remand. The drug companies asserted that the health care providers were dispensable parties, so the federal court could sever the claims against the medical malpractice defendants and remand them to state court, creating diversity jurisdiction as to the product liability defendants.

That's exactly what Judge Carr did: He severed and remanded the claims against Dr. Miller and Nurse Doe, and then retained jurisdiction over the remaining, diverse product liability lawsuit.

At that point, the judge didn't have to address the drug companies' arguments that the health care providers had either been fraudulently joined (because plaintiff hadn't provided an affidavit of merit as to the med mal claims) or fraudulently misjoined (because the med mal and products claims couldn't properly be brought in a single case, under the logic of Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir. 1996)).

If Judge Carr's logic catches on with other judges, we predict that you'll see an awful lot of drug companies removing cases on this ground and asking federal courts to sever and remand the med mal claims.

Full post as published by Drug and Device Law on June 29, 2009 (boomark / email).