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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions