United States District Court, D. Kansas
LISA S. SCHEHRER, Plaintiff,
SMITH & NEPHEW, INC.; BRIAN C. KINDRED, M.D.; ROBERT SWINDLE; and MERCURY MEDICAL GROUP, LLC, Defendants.
MEMORANDUM AND ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
case, which was removed to this Court from Kansas state
court, presently comes before the Court on a motion by
defendant Smith & Nephew, Inc. (“S&N”) to
stay proceedings pending transfer of the case to
multidistrict litigation (MDL) (Doc. # 4), and
plaintiff's motion to remand the case back to state court
(Doc. # 9). For the reasons set forth below, the Court
concludes that diversity is lacking and S&N has not shown
that all non-diverse defendants were fraudulently joined;
accordingly, the Court grants
plaintiff's motion, and the case shall be remanded to
state court. In light of that ruling, the Court
denies the motion for a stay.
filed the instant action in the District Court of Johnson
County, Kansas. Plaintiff, a Kansas resident, asserts claims
against S&N, alleged to be a Delaware corporation with
its principal place of business in Tennessee; Dr. Brian
Kindred, alleged to be a Kansas resident; Robert Swindle,
alleged to be a Kansas resident; and Mercury Medical Group,
LLC (“Mercury”), alleged to be a Missouri
corporation with its principal place of business in Kansas.
Plaintiff alleges that she suffered harm resulting from the
implantation of a particular medical device, the Birmingham
Hip Resurfacing System (“BHR”), in her hips in
two surgeries performed by defendant Kindred. Plaintiff
further alleges that defendant S&N manufactured and sold
the device; that defendant Swindle acted as a sales
representative for S&N and provided advice concerning the
choice of the device by Dr. Kindred and plaintiff; and that
Mr. Swindle was employed by defendant Mercury, which markets
and distributes S&N's products. Plaintiffs assert
claims against all defendants for negligence, negligent
misrepresentation, and violations of the Kansas Consumer
Protection Act (KCPA), K.S.A. § 50-623 et seq.;
and claims against S&N, Mercury, and Mr. Swindle for
strict product liability and breach of express and implied
purportedly acting with the consent of Mercury and Mr.
Swindle and without objection from Dr. Kindred, removed the
case to this Court. In its notice of removal, S&N asserts
that the Court may exercise diversity jurisdiction because
the other three defendants were fraudulently joined in this
suit. S&N then filed with the Judicial Panel on
Multidistrict Litigation (“JPML”) a notice that
this case is a potential tag-along action in an existing MDL
pending in the District of Maryland, and the JMPL
conditionally transferred the case to MDL No. 2775, In re
Smith & Nephew Birmingham Hip Resurfacing (BHR) Hip
Implant Products Liability Litigation. The parties have
now completed briefing to the JMPL on plaintiff's
objection to the transfer.
has filed a motion requesting a stay of proceedings in this
Court until the issue of the transfer to the MDL has been
decided by the JPML. Plaintiff opposes a stay, arguing that
the Court should decide her motion to remand the case back to
state court based on a lack of diversity jurisdiction.
Applicable Standards - Fraudulent Joinder
argues that the Court may exercise diversity jurisdiction in
this case. To invoke such jurisdiction, “a party must
show that complete diversity of citizenship exists between
the adverse parties.” See Symes v. Harris, 472
F.3d 754, 758 (10th Cir. 2006). “Complete diversity is
lacking when any of the plaintiff has the same residency as
even a single defendant.” See Dutcher v.
Matheson, 733 F.3d 980, 987 (10th Cir. 2013).
case, plaintiff has alleged facts to show that she is a
Kansas citizen and that defendants Kindred, Swindle, and
Mercury are also Kansas citizens. See 28 U.S.C.
§ 1332(c)(1) (corporation is a citizen of both the state
of its incorporation and the state of its principal place of
business). S&N does not dispute the Kansas citizenship of
those three defendants. S&N argues, however, that those
defendants' Kansas citizenship should be ignored for
purposes of assessing complete diversity because they have
been fraudulently joined as parties to the lawsuit.
Specifically, S&N argues that plaintiff has no claim
against Mercury because Mercury did not exist at the time of
the allegedly wrongful acts; that Mr. Swindle cannot be
liable under the Kansas Product Liability Act (KPLA) because
he was not a “product seller” and because he is
protected by the KPLA's seller immunity provisions; and
that Dr. Kindred enjoys immunity from liability under the
KPLA. S&N further argues that to the extent plaintiff
alleges medical malpractice by Dr. Kindred, such claims
should be severed and remanded to allow the rest of the suit
to remain in federal court.
absence of actual fraud in the pleading of jurisdictional
facts (which S&N does not allege here), fraudulent
joinder requires the removing party to demonstrate the
“inability of the plaintiff to establish a cause of
action against the non-diverse party in state court.”
See Dutcher, 733 F.3d at 988 (quoting Cuevas v.
BAC Home Loans Servicing, LP, 648 F.3d 242, 249 (5th
Cir. 2011)). “The defendant bears a heavy burden of
proving fraudulent joinder, and all factual and legal issues
must be resolved in favor of the plaintiff.” See
Id. (quoting Pampillonia v. RJR Nabisco, Inc.,
138 F.3d 459, 461 (2d Cir. 1998)). The defendant must
“clear a high hurdle” to prove fraudulent
joinder; the issue is not necessarily whether the plaintiff
has stated a valid claim against the non-diverse defendant,
but rather whether the defendant has proven the
plaintiff's inability to state a claim in state court
despite all legal and factual issues being decided in the
plaintiff's favor. See Id. at 989.
Court concludes that S&N has failed to show that there is
no possibility that plaintiff could establish a cause of
action against Mr. Swindle in Kansas state court.
Accordingly, because both plaintiff and Mr. Swindle are
Kansas citizens, S&N cannot establish complete diversity
in this case as required for this Court's exercise of
jurisdiction, and the Court need not consider S&N's
arguments with respect to Mercury and Dr.
KPLA defines as a “[p]roduct liability claim” any
claim for harm caused by the manufacture, design, or warnings
of the relevant product, including actions based on strict
liability, negligence, breach of express or implied warranty,
breach of a duty to warn, and any other substantive legal
theory. See K.S.A. § 60-3302(c). Accordingly,
as this Court has previously noted, all of a plaintiff's
theories “that sound in product liability are merged
into one product liability claim.” See Cooper v.
Zimmer Holdings, Inc., 320 F.Supp.2d 1154, 1158 (D. Kan.
2004) (Lungstrum, J.).
first argues, in its notice of removal and in its brief in
opposition to the remand motion, that Mr. Swindle cannot be
liable under the KPLA because he is not a “product
seller” as defined by the KPLA. The KPLA ...