Tort – Defibrillator – Defective Design – Removal

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Where the plaintiffs sued the non-resident defendant manufacturer and two other defendants located in South Carolina for various causes of action relating to the plaintiff husband’s defibrillator, the District Court granted the plaintiffs’ motion to remand to state court since: (1) the plaintiffs’ cause of action accrued before the effective date of the South Carolina Tort Reform Act, July 1, 2005; (2) the defendant has not established the non-diverse defendants were fraudulently joined; and (3) this court lacks subject-matter jurisdiction pursuant to 28 U.S.C. Sect. 1332, as there is not complete diversity in this case.

So ordered.

Background

The plaintiffs, who are South Carolina citizens, filed this action on April 17, 2006 in the South Carolina Court of Common Pleas for the 6th Judicial Circuit against defendants Medtronic, Inc., a Delaware corporation with a principal place of business in Minnesota; Dr. Jennifer Feldman, a citizen of South Carolina; and the Columbia Heart Clinic, an entity incorporated in South Carolina. The complaint alleges various causes of action relating to a defibrillator device.

The complaint alleges that the plaintiff husband underwent surgery in 2002 to implant a Medtronic defibrillator in his body. In the early spring of 2005, he visited Dr. Feldman for a checkup and was given a magnet device with which to check the battery on the defibrillator. However, he was allegedly also told that checking the battery with the magnet would increase the risk that the device would fail without warning. Additionally, the complaint alleges that on or about April 7, 2005, the plaintiff received a letter advising that premature battery depletion could occur in the defibrillator. He then consulted Dr. Feldman concerning a possible surgery to replace the Medtronic device with another device.

Allegedly, the husband and Feldman had a disagreement of some sort, followed by Feldman telling the husband not to call her again. Subsequently, in June 2005, the husband’s defibrillator device allegedly began to violently shock his heart and body six times, although the defibrillator device is allegedly designed to not shock any person more than five times in the most extreme circumstances. According to the affidavit of Ms. Janet Medin submitted by the defendant, the husband had surgery to replace the defibrillator on Aug. 8, 2005.

The action was removed to this court on June 20, 2006 by Medtronic under 28 U.S.C. Sects. 1441 and 1446. The notice of removal alleges that this court has subject matter jurisdiction pursuant to 28 U.S.C. Sect. 1332. The plaintiffs motioned to have the case remanded to state court.

Discussion

The plaintiffs argue that this court lacks subject-matter jurisdiction over this case pursuant to 28 U.S.C. Sect. 1332, as complete diversity does not exist. In support of this contention, the plaintiffs note that they named and served two (2) non-diverse defendants in this case, Dr. Feldman and the Columbia Heart Clinic. Medtronic contends that since the plaintiffs have not complied with the requirements of the newly enacted South Carolina Tort Reform Act, they cannot file a civil action against the non-diverse defendants, Dr. Feldman and the Columbia Heart Clinic. Medtronic argues that Dr. Feldman and the Columbia Heart Clinic are sham defendants who have been fraudulently joined and whose citizenship should be disregarded for the purpose of determining whether there is complete diversity.

Here, the parties agree that the provisions of the South Carolina Tort Reform Act apply to causes of action which accrue after July 1, 2005. Medtronic argues that the plaintiffs’ causes of action did not arise in this case until after July 1, 2005.

Here, the plaintiffs’ sixth cause of action is for “negligence and medical malpractice,” and it alleges negligence against all defendants in many particulars, including “in failing to install a defibrillator that a reasonably prudent physician would install….” Importantly, this installation occurred in 2002, and the plaintiff learned or discovered potential problems in the spring of 2005, which was before the effective date of the South Carolina Tort Reform Act. The effective date for the South Carolina Tort Reform Act is for causes of action that arise or accrue after July 1, 2005. While this lawsuit was filed after July 1, 2005 and the plaintiff underwent repair surgery in August 2005, his claim or right to sue arose in the spring of 2005. Because of such, this court finds that the plaintiffs’ causes of action accrued before the effective date of the South Carolina Tort Reform Act.

Accordingly, because it cannot be said “that there is no possibility that the plaintiff would be able to establish a cause of action against [Dr. Feldman and the Columbia Heart Clinic] in state court,” this court finds that defendant Medtronic has not established the non-diverse defendants were fraudulently joined. Consequently, this court finds that it lacks subject-matter jurisdiction pursuant to 28 U.S.C. Sect. 1332, because there is not complete diversity in this case. In addition, the court will also note that the plaintiffs have alleged other causes of action against Dr. Feldman and the Columbia Heart Clinic, such as outrage, that arguably do not fall within the South Carolina Tort Reform Act’s expert affidavit requirements. As such, valid causes of action have been stated against the non-diverse defendants and this further supports the court’s finding that there has not been a sufficient showing of fraudulent joinder. The plaintiffs’ motion to remand is granted.

Melton v. Medtronic, Inc. (Lawyers Weekly No. 002-014-06) (7 pages) (Harwell, J.) (U.S. District Court for the District of South Carolina at Rock Hill) (No. 0:06-cv-01843-RBH) (July 25, 2006).