WHITE v. GOEL et al complaint

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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

GREGORY G. WHITE,

Plaintiff,

v.

RISHI K. GOEL, M.D., DEPUYORTHOPAEDICS, INC., DEPUY INC.,DEPUY ACE MEDICAL USA, DEPUYSPINE INC., JOHNSON & JOHNSONMEDICAL INC., and JOHN DOE AND/ORJOHN DOE, INC. I-V,

Defendants.

))))))))))))

CASE NO.

JUDGE

NOTICE OF REMOVAL

Pursuant to 28 U.S.C. 1332, 1441, Defendants DePuy Orthopaedics, Inc. (improperly

captioned as DePuy Ace Medical USA); DePuy Synthes, Inc. (improperly captioned as

DePuy Inc.); DePuy Spine, LLC (improperly captioned as DePuy Spine Inc.); and Ethicon,

Inc. (improperly captioned as Johnson & Johnson Medical Inc.) (collectively, Removing

Defendants), hereby remove this action from the Court of Common Pleas, Cuyahoga County,

Ohio, Case No. CV-14-832363, to the United States District Court for the Northern District of

Ohio. As required under 28 U.S.C. 1446(a), Removing Defendants set forth a short and plain

statement of the grounds for removal:

1. This action involves products liability allegations regarding a spine medical

screw and spine fixation device for postural lumbar fusion. (Compl., 3.) Plaintiff Gregory G.

White (Plaintiff) filed this products liability action against the named Defendants on

September 5, 2014, claiming that the implantation of these medical devices caused him to

experience chronic pain and a loss of enjoyment of life. (Compl., 20, 23.) The gist of his

claims against Removing Defendants is that the medical devices were defective. As required

Case: 1:14-cv-02236-PAG Doc #: 1 Filed: 10/08/14 1 of 12. PageID #: 1


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under 28 U.S.C. 1446(a), Removing Defendants attach as Ex. A copies of all process,

pleadings, and orders filed in state court and served on them.

2. Plaintiff also asserted a medical malpractice claim against Rishi K. Goel, M.D.

(Goel), the physician who implanted and removed the medical devices.

3. Plaintiffs medical malpractice claim was not accompanied by the requisite

affidavit of merit under Ohio Rule of Civil Procedure 10(D)(2). Instead, Plaintiff moved for a

90-day extension of time under Ohio Rule of Civil Procedure 10(D)(2)(b) because of the heavy

press of business and the delays associated both with obtaining Plaintiffs records and having

them reviewed by potential expert witnesses. (Pl.s Mot. for Enlargement of Time to File Aff.of Merit, attached at Ex. A.)

4. Goel need not consent to removal because, as established below, he has been

fraudulently joined. See, e.g., Johnson Controls, Inc. v. J.F. Dunn Enters, Inc. , No. 08-12045,

2009 WL 415706, at *1, n.2 (E.D. Mich. Feb. 19, 2009) ([I]f Defendants are able to establish

that J.F. Dunn was fraudulently joined as a party, then they need not obtain its consent to

removal.).

I. NOTICE OF REMOVAL IS TIMELY.

5. Plaintiff filed this action on September 5, 2014 in the Court of Common Pleas,

Cuyahoga County, Ohio.

6. DePuy Orthopaedics, Inc. and Ethicon, Inc. (improperly captioned as Johnson &

Johnson Medical Inc.) were each served with a Summons and copy of Plaintiffs Complaint on

September 10, 2014. They were the first of Removing Defendants to be served with a Summons

and copy of Plaintiffs Complaint. The Complaint was the initial pleading received by

Removing Defendants setting forth the claims for relief on which this action is based.



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12. It is apparent from the face of the Complaint that Plaintiff seeks recovery of an

amount in excess of $75,000, exclusive of costs and interest. Plaintiff asserts strict liability,

negligence, and breach of warranty claims against Removing Defendants. For these claims,

Plaintiff seeks unlimited damages in an amount in excess of the state court jurisdictional

minimum of $25,000 based on the following allegations: [Plaintiff] was caused to suffer chronic

pain following implantation of the device and required two (2) subsequent surgeries to remove or

repair it. . . . [H]e was required to seek medical care and treatment in connection with which he

has incurred and will continue to incur expenses. . . . [H]e has been restricted in his normal

activities, his health has been impaired, and his ability to perform normal daily tasks has beenrestricted. . . . [H]e has suffered and will continue to suffer a loss of enjoyment of life. (Compl.,

17-38.) 2

13. It is widely recognized that claims for personal injuries like those asserted here

facially meet the $75,000 jurisdictional threshold. See, e.g. , In re Yasmin & Yaz (Drospirenone)

Mktg., Sales Practices & Prods. Liab. Litig. , 692 F. Supp. 2d 1025, 1040 (S.D. Ill. 2010) (Given

the severe and ongoing nature of the injuries alleged, the Court finds that it is plausible and

supported by the preponderance of the evidence that the amount in controversy has been

established.); Yocham v. Novartis Pharms. Corp. , No. 07-1810 (JBS), 2007 WL 2318493, at *3

(D.N.J. Aug. 13, 2007) ([I]t appears from the face of the Complaint that the amount in

controversy exceeds $75,000 because [i]n her Complaint, Plaintiff alleges, among other things,

damages relating to having experienced a life threatening skin condition ... which resulted in

controversy requirement has been met. Rather, defendants may simply allege or assert that the jurisdictionalthreshold has been met. Id. at 16.2 Moreover, [w]hen determining the jurisdictional amount in controversy in diversity cases, punitive damages mustbe considered . . . unless it is apparent to a legal certainty that such cannot be recovered. Hayes v. Equitable

Energy Res. Co. , 266 F.3d 560, 572 (6th Cir. 2001) (quoting Holley Equip. Co. v. Credit Alliance Corp. , 821 F.2d1531, 1535 (11th Cir. 1987)).



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hospitalization ...[and] Plaintiff also seeks compensatory damages for past, present, and future

pain and suffering, lost earnings, past and future medical expenses and punitive damages.)

(internal quotation marks and citation omitted)). Furthermore, verdicts in similar cases support

the conclusion that the amount in controversy exceeds $75,000. See, e.g. , Schindler v. Stewart

Medical, Inc. , 1999 WL 1333766 (Unknown Pa. Ct. December 1998) (verdict of $1,585,000 in

products liability case alleging that rods implanted in plaintiffs back to correct spinal curvature

broke).

14. Given the serious nature of Plaintiffs strict liability, negligence, and breach of

warranty claims, and that similar alleged injuries have been found to meet the jurisdictionalthreshold, it is facially apparent from Plaintiffs Complaint that the amount in controversy

exceeds the jurisdictional minimum. That is, if Plaintiff prevails on his claim, it is more likely

than not that his damages would exceed $75,000.

B. There Is Complete Diversity of Citizenship Between Plaintiff and AllProperly Joined and Served Defendants.

15. When an action is removed based on diversity, the court determines whether

complete diversity exists at the time of removal. Coyne v. Am. Tobacco Co. , 183 F.3d 488,

492 (6th Cir. 1999).

16. Plaintiff is a citizen of the State of Ohio. (Compl.)

17. For purposes of determining its citizenship under 28 U.S.C. 1332(c)(1),

Defendant DePuy Orthopaedics, Inc. is a citizen of the State of Indiana because it is incorporated

in the State of Indiana and has its principal place of business in Warsaw, Indiana.

18. Defendant DePuy Inc. changed its name to DePuy Synthes, Inc. on December 30,

2012. DePuy Synthes, Inc. is a citizen of the States of Delaware and Indiana because it is

incorporated in the State of Delaware and has its principal place of business in Warsaw, Indiana.



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19. Defendant DePuy Ace Medical Company (improperly captioned as DePuy Ace

Medical USA) merged with and into DePuy Orthopaedics, Inc. on July 31, 2000. As

demonstrated above, DePuy Orthopaedics, Inc. is a citizen of the State of Indiana.

20. Defendant DePuy Spine Inc. was converted to DePuy Spine, LLC on May 23,

1983. For purposes of determining citizenship, DePuy Spine, LLC is a citizen of each state of

which its members are citizens. OnePoint Solutions, LLC v. Borchert , 486 F.3d 342, 346 (8th

Cir. 2007). The only member of DePuy Spine, LLC is Synthes USA, LLC; and the only member

of Synthes USA, LLC is DePuy Products, Inc. DePuy Products, Inc. is a citizen of the state of

Indiana because it is incorporated in the State of Indiana and has its principal place of business inWarsaw, Indiana. Accordingly, DePuy Spine, LLC is a citizen of Indiana.

21. Defendant Johnson & Johnson Medical Inc. changed its name to Ethicon, Inc. on

December 29, 1997. Ethicon, Inc. is a citizen of the State of New Jersey because it is

incorporated in the State of New Jersey and has its principal place of business in Somerville,

New Jersey.

22. Accordingly, there is complete diversity between Plaintiff and all properly joined

Defendants:

NAME IN COMPLAINT CURRENT / PROPER NAME CITIZENSHIP

Gregory G. White Gregory G. White Ohio

DePuy Orthopaedics, Inc. DePuy Orthopaedics, Inc. Indiana

DePuy Inc. DePuy Synthes, Inc. Delaware, IndianaDePuy Ace Medical USA DePuy Orthopaedics, Inc. Indiana

DePuy Spine Inc. DePuy Spine, LLC Indiana

Johnson & Johnson Medical Inc. Ethicon, Inc. New Jersey



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C. Goel Has Been Fraudulently Joined.

23. In determining whether a defendant has been fraudulently joined, the Sixth Circuit

requires not just an analysis of whether the plaintiff has stated a claim, but whether the

plaintiff has stated at least a colorable cause of action. King v. Centerpulse Orthopaedics, Inc. ,

No. 1:05-cv-1318, 2006 WL 456478, at *2 (N.D. Ohio Feb. 24, 2006) (citing Jerome-Duncan,

Inc. v. Auto-By-Tel, L.L.C. , 176 F.3d 904, 907 (6th Cir. 1999)). [T]he question is whether

there is arguably a reasonable basis for predicting that the state law might impose liability on the

facts involved. King , at *2 (citing Alexander v. Electronic Data Sys. Corp. , 13 F.3d 940, 949

(6th Cir. 1994); see also Graphic Resources Group, Inc. v. Honeybaked Ham Co. , 51 F. Supp. 2d

822, 825 (E.D. Mich. 1999) (noting that the removing defendant is not required to show that

there is absolutely no basis for recovery; instead, the inquiry is based on a reasonableness

standard) (citing Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C. , 989 F. Supp. 838, 840 (E.D.

Mich. 1997), affd , 176 F.3d 904 (6th Cir. 1999)). Indeed, the U.S. Supreme Court has stated:

Federal courts should not sanction devices intended to prevent a removal to a Federal court

where one has that right, and should be equally vigilant to protect the right to proceed in the

Federal court. Wecker v. Natl Enameling & Stamping Co. , 27 S. Ct. 184, 186 (1907).

24. A defendant can establish fraudulent joinder by demonstrating that claims

against the non-diverse defendants are time barred as a matter of law. Favor v. W.L. Gore

Assocs., Inc. , No. 2:13-cv-655, 2013 WL 4855196, at *2 (S.D. Ohio Sep. 11, 2013) (citing Way

Intl v. Exec. Risk Indem. Co. , No. 3:07-cv-294, 2008 U.S. Dist. LEXIS 25445, at *8 (S.D. Ohio

Mar. 31, 2008) (collecting cases)).

25. Under Ohio law, the determination of when a cause of action for medical

malpractice accrues involves an analysis of both the termination rule and the discovery rule.



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See Grandillo v. Montesclaros , 137 Ohio App.3d 691, 697 (3d Dist. 2000) (quoting Frysinger v.

Leech , 32 Ohio St.3d 38, 38 (1987)).

26. Under Ohios termination rule, a cause of action for medical malpractice

accrues and the one-year statute of limitations begins to run when the physician-patient

relationship for that condition terminates. See Frysinger , 32 Ohio St.3d at 41-42.

27. Plaintiff alleges that he continued to consult with Goel regarding his post-

operative symptoms only through January 2013. (Compl. 12.) Therefore, the termination

rule tolls the one-year statute of limitations only until January 2013. Frysinger , 32 Ohio St.3d

at 41-42.28. Plaintiff filed his Complaint on September 5, 2014, approximately twenty months

after the one-year statute of limitations began to run under the termination rule. Therefore,

Plaintiffs claims against Goel are time-barred under the termination rule.

29. Under Ohios discovery rule, a cause of action for medical malpractice accrues

when a patient discovers, or in the exercise of reasonable care and diligence should have

discovered, the resulting injury. Allenius v. Thomas , 42 Ohio St.3d 131, 133 (1989) (quoting

Oliver v. Kaiser Cmty. Health Found. , 5 Ohio St.3d 111, 111 (1983)). This so-called

cognizable event starts the statute of limitations running. Id. at 133-34. For example, a

patients cause of action accrued when he was immediately aware of the paralysis which

constituted his injury in the lawsuit following back surgery. Richards v. St. Thomas Hospital , 24

Ohio St.3d 27, 27-28 (1979); see also Rose v. Womens Health Clinic , 90 Ohio App.3d 776, 778-

80 (11th Dist. 1993) (cognizable event triggering the statute of limitations was the point at which

the patient learned she had cervical cancer).

30. The Ohio Supreme Court further refined the cognizable event test in Flowers v.



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Walker , 63 Ohio St.3d 546 (1992). The Flowers decision stated that it was knowledge of facts,

not their legal significance that starts the running of the statute of limitations. Id. at 549. A

plaintiff need not have discovered all of the relevant facts necessary to file a claim in order to

trigger the statute. Id. Rather, the cognizable event itself puts the plaintiff on notice to

investigate the facts and circumstances relevant to her claim in order to pursue her remedies.

Id. More specifically, [t]he occurrence of a cognizable event imposes on the plaintiff the duty

to (1) determine whether the injury suffered is the proximate result of malpractice and (2)

ascertain the identity of the tortfeasor or tortfeasors. Id. at 549-50. A patient need not be aware

of the full extent of the injury before there is a cognizable event. Allenius , 42 Ohio St.3d at 133-34. Instead, a cognizable event is a noteworthy event . . . which does or should alert a

reasonable person-patient that an improper medical procedure, treatment or diagnosis has taken

place. Id. at 134.

31. Here, Plaintiff alleges that Goel was negligent in his implantation of the surgical

hardware and in his failure to timely diagnose and remove the failed hardware. (Compl. 14)

(emphasis added). Specifically, Plaintiff alleges that:

a. on August 10, 2012, Goel first implanted Plaintiff with the surgical hardware

(Compl. 7.);

b. on August 23, 2012, [Plaintiff] required a second surgery . . . wherein . . . Goel

removed and replaced the surgical hardware (Compl. 9.); and

c. on September 6, 2012, [Plaintiff] required a third surgery . . . wherein . . . Goel

removed and replaced the spinal fusion hardware. (Compl. 11.)

32. Plaintiff further alleges that Goel informed Plaintiff that the DePuy spine device

was the subject of a recall for defects and noted in Plaintiffs chart that the operation of



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Respectfully submitted,

/s/ John Q. Lewis John Q. Lewis (0067235)Jonathan F. Feczko (0082772)

TUCKER ELLIS LLP950 Main AvenueSuite 1100Cleveland, OH 44113-7213Telephone: 216.592.5000Facsimile: 216.592.5009E-mail: [email protected]

[email protected]

Attorneys for Defendants DePuy Orthopaedics, Inc.; DePuy Synthes, Inc.; DePuy Spine, LLC;

and Ethicon, Inc.



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WHITE v. GOEL et al complaint

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