United States: Fraudulent Joinder And Misjoinder Arguments Prevail In Missouri

Last Updated: August 2 2019
Article by Michelle Yeary

Sometimes we find it simply best to start with the facts. The facts of Graham v. Mentor World Wide LLC, 2019 WL 3253185 (E.D. MO Jul. 19, 2019) are:

  • In 2000, plaintiff underwent plastic surgery including breast implants.
  • Between December 2017 and February 2018, tests showed plaintiff was experiencing silicone leakage from her breast implants and her doctors advised removal.
  • In September 2018, plaintiff was involved in a car accident.
  • In November 2018, plaintiff had her breast implants removed and replaced.
  • Plaintiff filed suit bringing strict liability claims against the breast implant manufacturer, strict liability claims against the surgical center where she had her breast implant procedure performed, and a negligence claim against the driver of the vehicle involved in her accident.

Id. at *1. For those of you who grew up watching Sesame Street, you might be hearing the tune – one of these things is not like the others – right about now. And you'd be right, but we'll get to that in a minute.

The manufacturer defendant, who was not a Missouri resident, removed the case to federal court alleging both fraudulent joinder as to the surgical center and misjoinder as to the driver of the car. Taking fraudulent joinder first, plaintiff's claim against the surgical center was for strict liability. Why not a medical negligence claim? Probably because there was no way plaintiff was getting around the two year statute of limitations for a surgery performed in 2000. Id. at *2. The surgical center probably had a decent statute of limitations argument as to the products liability claim too, but there was an even stronger argument as to why plaintiff had no "colorable" claim against that defendant. Under Missouri law, "product liability claims against health care providers are not viable." Id. at *3. The issue is governed by statute which provides that a strict liability claim against a healthcare provider must be dismissed if another party, the manufacturer, is properly before the court and plaintiff can recover in full from that defendant. Id. Since plaintiff sued the manufacturer, she has no viable claim against the surgical center which is therefore fraudulently joined and disregarded for purposes of determining diversity.

Next is the automobile negligence claim. We don't see too many of these in the mix. That's because pursuant to Federal Rule of Civil Procedure 20(a)(2), one or more defendants can be joined in a single action if the claims against them "aris[e] out of the same transaction, occurrence, or series of transactions or occurrences." In other words, to be properly joined, "it is essential that Plaintiff's claims have a logical relationship to one another." Id. at *4. The court starts with the logical pronouncement that the relationship between allegations of negligence from a car accident and allegations of design and manufacturing defect for breast implants that were implanted 18 years before the car accident are "attenuated." Id. Plaintiff tries to take refuge in case law regarding the exacerbation or aggravation of an injury by a subsequent incident. But, we refer you back to the facts. Plaintiff's silicone leakage was diagnosed and removal of her breast implants recommended, 7 months before the car accident. Plaintiff certainly has some timeline problems. Moreover, while the injuries concern the same general area of the body, they are different. Plaintiff alleges the breast implants have allowed silicone to leak into her organs and surrounding tissue and lymph nodes putting her at an increased risk for cancer, autoimmune reactions and other medical issues. The car accident instead allegedly caused pain and swelling around her breasts and chest and pain and loss of range of motion in her shoulder, neck and back. Id. at *5. Neither the events nor the injuries stemming from the two claims are common, therefore the manufacturer and the car driver are misjoined. The court severed the auto claim and remand it back to state court. Id.

The manufacturer defendant also filed a motion to dismiss on PMA-preemption and implied Buckman-preemption grounds. It appears that whether plaintiff was participating in a clinical trial at the time she received her breast implants is a central issue to the preemption argument and is disputed by plaintiff. The court concluded that defendant was relying on facts not alleged in the complaint and that the issue was more appropriate for a motion for summary judgment. So, the preemption motion to dismiss was denied but if defendant had to live to fight another day, we're sure its glad to do it in federal court.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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