United States District Court, D. Connecticut
ROBERT D. BOEHRINGER and DEBORAH JO BOERHINGER, Plaintiff,
SMITH & NEPHEW, INC., JOHN M. KEGGI, M.D., and ORTHOPAEDICS NEW ENGLAND, Defendants.
RULING ON PLAINTIFFS' MOTION TO REMAND AND FOR
ATTORNEYS' FEES AND DEFENDANT'S MOTION TO
W. Eginton, Senior U.S. District Judge.
case stems from an allegedly defective medical device
implanted in plaintiff Robert Boehringer that was assertedly
designed, constructed, manufactured and sold by Smith &
Nephew, Inc. Plaintiffs Robert and Deborah Boerhinger allege
claims pursuant to the Connecticut Product Liability Act
(“CPLA”) against Smith & Nephew.; plaintiffs
also state common law claims based on lack of informed
consent against Dr. John Keggi and Orthopaedics New England.
Smith & Nephew removed this case on the basis of
diversity jurisdiction and federal question jurisdiction.
Plaintiff has filed a motion to remand and for attorneys'
fees incurred in connection with the motion to remand.
Defendant Smith & Nephew has filed an opposition and a
motion to sever. For the following reasons, the motion to
remand will be granted, although the request for
attorneys' fees will be denied. The motion to sever will
be denied without prejudice.
jurisdiction must be strictly construed and enforced in favor
of state court jurisdiction because the federal courts are
courts of limited jurisdiction, and because removal of a case
implicates significant federalism concerns. Villano v.
Kohl's Dept. Stores, Inc., 362 F.Supp.2d 418, 419
(S.D.N.Y. 2005). The removing party bears the burden of
establishing the propriety of the removal. Miller v.
First Security Investments, Inc., 30 F.Supp.2d 347, 350
(E.D.N.Y. 1998). Unless the balance is strongly in favor of
defendant, plaintiff's choice of forum should rarely be
disturbed. Gulf Oil Corp. v. Gilbert, 330 U.S. 501,
508 (1947). Removal jurisdiction is evaluated according to
the pleadings existing at the time the petition for removal
was filed. Blockbuster, Inc. v. Galeno, 472 F.3d 53,
57-58 (2d Cir. 2006).
Smith & Nephew's removal on the basis of diversity
jurisdiction presumes that plaintiff fraudulently joined
non-diverse defendants Dr. Keggi and Orthopaedics New England
in order to defeat diversity. A plaintiff may not defeat
diversity jurisdiction by joining a non-diverse defendant
with “no real connection with the controversy.”
Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459,
460-1 (2d Cir. 1998). Defendant must demonstrate by clear and
convincing evidence that a fraud has been committed in
plaintiff's pleadings or that there is no possibility,
based on the pleadings, that a cause of action can be made
against that defendant in state court. Id. at 461.
All uncertainties in applicable state law are resolved in
favor of plaintiff, and the complaint is subjected to a
“less searching” scrutiny than a motion to
dismiss for failure to state a claim. Campisis v.
Swissport Cargo Servs., L.P., 2010 WL 375878, at *2
(E.D.N.Y. Jan. 26, 2010).
complaint alleges that on July 20, 2010, plaintiff Robert
Boehringer underwent bilateral hip replacement surgery at
Waterbury Hospital performed by Dr. Keggi, with continuing
care through at least 2018. The complaint asserts that Dr.
Keggi implanted various medical products that had been
designed manufactured, remanufactured, tested and or sold by
defendant Smith & Nephew.
Count Three against Dr. Keggi and Orthopaedics New England,
the complaint alleges that Robert Boehringer was under the
care, treatment and supervision of defendants; and that his
injuries were caused by “failure to properly disclose
the risks of implantation of the Liners, including their
propensity to fracture inside the body of plaintiff,
subsequent to their recall by the co-defendant, Smith &
Nephew, and, as a result of Dr. Keggi's ongoing
experience with similar liners in other patients.”
for lack of informed consent derives from the right against
bodily intrusions underlying intentional torts of assault and
battery. See Sherwood v. Danbury Hosp., 278 Conn.
163, 180 (2006) (“Every human being of adult years and
sound mind has a right to determine what shall be done with
his own body; and a surgeon who performs an operation without
his patient's consent, commits an assault, for which he
is liable in damages.”) With regard to informed consent
claims, the Court's inquiry is limited to whether the
physician has disclosed the nature of the procedure to be
performed upon the patient, the risks and hazards of that
procedure, the alternatives to the procedure, and the
anticipated benefits of that procedure. Macamaux v. Day
Kimball Hosp., 2011 WL 4352007, at *8 (D. Conn. Sept.
16, 2011). The duty to inform does not fall upon a referring
physician but rather upon the physician performing the
procedure. Fajardo v. Boston Scientific Corp., 2018
WL 4200284, at *5 (Conn. Sup. Ct. August 15, 2018).
Plaintiffs argue that the Dr. Keggi owed a continuing duty to
the plaintiff Robert Boehringer commensurate with his
specialized knowledge and experience with the defective
product during his eight years of treating of plaintiff.
Under the continuing course of treatment doctrine that tolls
the statute of limitations, a physician, who committed an
initial wrong upon the plaintiff, owes a continuing duty to
the plaintiff that is related to the alleged original wrong,
and engages in wrongful conduct in breach of that continuing
duty. Witt v. St. Vincent's Medical Center, 252
Conn. 363, 375 (2000). For purposes of considering whether
plaintiffs have fraudulently joined the non-diverse
defendant, the Court cannot find that there is no possibility
based on the pleadings that plaintiff can state a cause of
action for lack of informed consent based on the facts
defendant asserts that Dr. Keggi's office notes belie the
assertion of a lack of informed consent claim, the
Court's review of such evidentiary materials requires
inquiry into the broader context of such notes and is more
appropriate for consideration on a motion for summary
judgment. Accordingly, the Court cannot find that diversity
jurisdiction exists due to fraudulent joinder of the
question jurisdiction may be invoked even where a complaint
does not allege a federal cause of action (1) if Congress
expressly provides by statute for removal of state law
claims; (2) if the state law claims are completely preempted
by federal law; and in certain circumstances, (3) if the
vindication of a state law right necessarily turns on a
question of federal law. Gunn v. Minton, 568 U.S.
251, 257-258 (2013). Defendant maintains that the complaint
raises a federal question consistent with the third
circumstance contemplated by Gunn, which applies
only if the federal issue is (1) necessarily raised, (2)
actually disputed, (3) substantial, and (4) capable of
resolution in federal court without disrupting the
federal-state balance approved by Congress. Id. at
instant case, the state product liability claims of the
medical device implicate federal standards, regulations and
approval requirements relevant to medical devices. The
complaint specifically alleges violations of the Food and
Drug Administration's manufacturing specifications and
standards. Accordingly, the Court ...