Opinion
Civil Action No. SA-05-CA-1144-XR.
January 18, 2006
ORDER
On this date, the Court considered Plaintiffs' motion to remand. Defendants removed this case from state court alleging that Plaintiffs improperly joined Defendant Guidant Puerto Rico Sales Corporation (GPRSC) to defeat diversity jurisdiction.
The Fifth Circuit has adopted the term "improper joinder" as being more consistent with the statutory removal language than "fraudulent joinder." Smallwood v. Illinois Central R.R. Co., 385 F.3d 568, 571, n. 1 (5th Cir. 2004). Accordingly, this Court will address Defendants' fraudulent joinder claim under the improper joinder terminology.
GPRSC is a Texas corporation with its principal place of business in Puerto Rico. It is a wholly-owned subsidiary of Intermedics, Inc., which is a wholly-owned subsidiary of Guidant Corporation.
On October 20, 2005, Plaintiffs filed suit in the 150th Judicial District Court of Bexar County, Texas against Defendants. In their lawsuit, Plaintiffs allege that Lucy Caldwell received a Contak Renewal Model H135 ICD (a defibrillator) during an August 7, 2003 surgical implant operation. Plaintiffs allege that the product is defective and that they are suffering extreme mental anguish because they believe that the product may malfunction. Plaintiffs allege that all defendants in this case conspired with the Guidant Corporation to conceal the fact that the product was defective. Alternatively, Plaintiffs argue that the defendants operated as a single business enterprise and that each constituent corporation should be held liable for the actions of the others. Plaintiffs also allege that "by manufacturing, selling, proving and/or implanting a defective ICD . . . while concealing the risks of death and catastrophic injury" the defendants impeded any voluntary and knowing consent to the implantation and accordingly a battery was committed by the Defendants at the time the device was implanted. Alternatively, Plaintiffs also allege claims for breach of fiduciary duty, "strict products liability" and breach of express and implied warranty. Further, Plaintiffs bring claims for fraud, constructive fraud, negligence and intentional infliction of emotional distress.
Defendants timely removed this case to this federal court. Defendants argue that GPRSC was improperly joined. Defendants further argue that GPRSC does not design or manufacture pacemakers or defibrillators, it only sells such products in Puerto Rico and St. Croix, it does not sell these products in Texas, and it did not participate in designing, manufacturing or selling the Contak Renewal Model H135 ICD.
On November 7, 2005, the Judicial Panel on Multidistrict Litigation ordered that this case be conditionally transferred to the United States District Court for the District of Minnesota for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407.
The Chairman of the Judicial Panel on Multidistrict Litigation has informed judges in other MDL-related cases that a conditional transfer order "does not in any way limit the pretrial jurisdiction of [the original district court]." The Chairman further has stated: "Thus [a district court's] jurisdiction continues until any transfer ruling becomes effective. If you have a motion pending before you in the action — particularly a motion to remand to state court (if the action was removed to your court) — you are encouraged to rule on the motion unless you conclude that the motion raises issues likely to arise in other actions in the transferee court, should we order transfer, and would best be decided there."
It is apparent that the issue of whether GPRSC has been improperly joined has been ruled by other Texas district courts and those courts have reached different opinions. In Swann v. Guidant Corp., 2005 WL 3560627 (S.D. Tex. Dec. 29, 2005), that court concluded that a reasonable possibility of recovery from GPRSC existed under a civil conspiracy claim despite the fact that it did not design, manufacture, or sell the allegedly-defective device. "Plaintiff need not prove that GPRSC owes Plaintiff a "duty in tort" to hold GPRSC liable. Rather, Plaintiff need only prove that: (1) at least one defendant breached a duty in tort to Plaintiff; and (2) that GPRSC conspired with the breaching Defendant to commit that tort." See also Liedeker v. Guidant Corp., 2005 WL 2277633 (S.D. Tex. Sept. 16, 2005) (same); Motal v. Guidant Corp., 2005 WL 2277642 (S.D. Tex. Sept. 16, 2005) (same); Hinojosa v. Guidant Corp., 2005 WL 2177212 (S.D. Tex. Sept. 7, 2005) (same).
However, in Hardin v. Guidant Corp., Civ. No. G-05-430 (S.D. Tex. Sept. 21, 2005), the court granted a motion to remand because it held that a Texas physician was properly joined thus there was no complete diversity. Nevertheless, the Court went on to note "the weakness of the claims against" GPRSC. The Court further stated: "GPRSC apparently had absolutely no connection with Mr. Hardin's device. Plaintiffs argue that since the president of GPRSC was also the president of the corporate entity responsible for manufacturing the device in question, liability can be imputed to GPRSC. The existence of interlocking personnel with a related corporate entity is simply not sufficient to impose liability on a corporation."
In a PPA-related suit this court has concluded that similar type claims could not be maintained against a company because the PPA-containing products that caused the plaintiff's injuries were not made, marketed, or sold by Advocare. See Olivas v. American Home Products Corp., 2002 WL 32620351 (W.D. Tex. Oct. 18, 2002).
This Court concludes that Plaintiffs' motion raises issues likely to arise in other actions in the transferee court and would best be decided there to avoid inconsistent rulings. Plaintiff's motion to Remand (docket no. 5) is transferred to the Hon. Donovan W. Frank for his consideration in MDL-1708, In re Guidant Corp. Implantable Defibrillators Products Liability Litigation. The Clerk of this Court is directed to remove Plaintiff's motion to remand (docket no. 5) from the civil pending motions report of the undersigned judge.