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Removal Based On Misjoinder Of A Treating Physician

By James M. Beck and Mark Herrmann

We've published a couple of posts recently (here and here) about removal in the tough context -- where the medical malpractice and product liability claims arise out of the same medical treatment. In that situation, the removing product manufacturer must convince the federal court to sever (and remand) the malpractice claims, and to retain jurisdiction over the product liability claims, even though evidence introduced at the malpractice and products trials would overlap.

Today, we're doing removal in the easier context -- where the medical malpractice and product liability claims arise out of separate events.

We're thinking about Stone v. Zimmer, No. 09-80252-CIV-HURLEY, 2009 U.S. Dist. LEXIS 59125 (S.D. Fla. 2009). In June 2006, Richard Stone had a hip replacement with a Zimmer implant at a hospital in New York. The implant allegedly broke in two. A year later, in August 2007, Stone sought treatment for pain from a doctor at a pain clinic in Florida. That doctor allegedly failed to identify the broken implant and instead treated Stone for six months with assorted injections. In April 2008, Stone saw another orthopedic surgeon who promptly ordered an x-ray, discovered the fracture in the hip implant, and recommended immediate replacement surgery.

Stone filed a complaint in Florida state court pleading product liability claims against Zimmer (a citizen of Indiana) and medical malpractice claims against the Florida pain doctor and the clinic at which he worked.

Zimmer removed the case to federal court; plaintiffs moved to remand.

Judge Daniel Hurley relied on the doctrine of "procedural misjoinder" (which he called a type of "fraudulent joinder") to sever the med mal claims from the product claims, remand the med mal claims, and retain jurisdiction over the product claims.

Zimmer argued that the product liability claims against it were legally distinct from the malpractice claims brought against the pain doctor. The alleged malpractice occurred a year after Stone's initial implant surgery, and no facts needed to prove the alleged malpractice would overlap with facts needed to prove the product claims. The claims against Zimmer did not arise out of the same transaction or occurrence as the claims against the physician, and there would be no basis for pleading joint and several liability against Zimmer and the Florida health care providers. Id. at *8.

Judge Hurley agreed. Zimmer and the Florida health care providers "are properly viewed as successive, rather than joint tortfeasors," id. at *11, and any "liability that may be found against Zimmer or [the pain doctor] would not be a basis for liability as to the other, and separate liablity as to each could be found." Id. at *12.

This is not a run-of-the-mill factual situation. Typically, a plaintiff names the implant manufacturer and the implanting surgeon in a single complaint, and the proof offered in connection with the product claim would overlap with the proof offer for the med mal claim.

And this is not a legal issue as to which the law is uniform nationally. Courts have struggled with the doctrine of "procedural misjoinder;" check applicable local precedent before assuming that your court follows the lead of the Eleventh Circuit on this doctrine.

But the fact that Stone involved an unusual situation doesn't make the precedent any less helpful. If you're facing a complaint that misjoins the product defendant and the med mal defendant, consider removing and arguing procedural misjoinder to obtain the forum that your client prefers.

Full post as published by Drug and Device Law on July 27, 2009 (boomark / email).