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Kelly v. Aultman Physician Center

United States District Court, Sixth Circuit

May 29, 2013



SARA LIOI, District Judge.

Before the Court are several motions that should be resolved as soon as possible, in the interest of judicial economy: (1) motion of defendant Bayer HealthCare Pharmaceuticals, Inc. ("Bayer") to stay all proceedings in this case pending a decision by the Judicial Panel on Multidistrict Litigation ("the JPML") as to whether to transfer this case to the U.S. District Court for the Southern District of New York for inclusion in MDL No. 2434, In re: Mirena IUD Products Liability Litigation (Doc. No. 4);[1] (2) plaintiff's motion to remand (Doc. No. 5); (3) Bayer's motion to dismiss for failure to state a claim (Doc. No. 8); and (4) motion of defendants Aultman Health Foundation, Aultman Hospital, Aultman Physician Center-OB/GYN, and Jennifer L. Rogers Grabenstetter ("the Medical Defendants") to dismiss as time-barred (Doc. No. 9).[2]


This case arises out of plaintiff's use of and alleged injury from a contraceptive device known as the Mirena® IUD.

The complaint was originally filed in Stark County Court of Common Pleas on March 13, 2013. Plaintiff sued the Medical Defendants and "John and Jane Doe Supervising Physicians, Aultman OB/GYN" for medical malpractice (Count I), respondeat superior (Count II), and fraudulent concealment (Count III). Plaintiff filed a first amended complaint on March 29, 2013, joining Bayer as a defendant and adding four causes of action against Bayer only: three state law product liability counts and a claim for punitive damages.

On May 2, 2013, Bayer removed the case to this Court, asserting that it is "one of many product-liability cases now pending in federal courts that share common factual allegations regarding the alleged risks of uterine perforation and migration associated with the Mirena® IUD and the adequacy of the FDA-approved product warnings." (Doc. No. 1 at 2.) In its removal petition, Bayer asserted that, although complete diversity is lacking, the Medical Defendants were fraudulently joined to defeat diversity jurisdiction. It argued that plaintiff had no basis for a claim against the Medical Defendants because any medical malpractice claim is already barred by the statute of limitations.[3] Bayer asserted, in the alternative, that this Court may retain jurisdiction over Bayer (the diverse defendant) by severing the claims of the Medical Defendants (the non-diverse defendants) because the Medical Defendants are dispensable parties with respect to the products liability claims against Bayer. ( Id. at 6.)[4]

On the same day it removed the case, Bayer also filed its motion to stay. Bayer is of the view that it is only a matter of time before this case is transferred to the Southern District of New York to join MDL No. 2434.[5]

On May 3, 2013 at 11:52 a.m., plaintiff filed her motion to remand (Doc. No. 5), arguing that whether the Medical Defendants were properly joined and whether her claims are time-barred are questions for this Court. A few hours later, at 2:36 p.m., plaintiff filed her second amended complaint in the state court. This version of the complaint adds no new parties or claims, but merely adds to, and clarifies, some of the factual allegations relating to plaintiff's discovery of her claims.[6]

Plaintiff opposes defendant's motion to stay, arguing that she will be harmed by a stay because she will not have the opportunity to have a ruling on her motion to remand, on which she believes she is certain to prevail on the basis of lack of complete diversity.


The "general rule is for federal courts to defer ruling on pending motions to remand in MDL litigation until after the [JPML] has transferred the case." Jackson v. Johnson & Johnson, Inc., No. 01-2113, 2001 WL 34048067, at *6 (W.D. Tenn. April 3, 2001). As noted by Bayer in its motion to stay, "[n]umerous federal courts across the country have... stayed cases pending transfer to the MDL, where the plaintiff has filed a motion to remand and/or opposed transfer." (Doc. No. 10 at 292, citing cases.)

In this case, a close examination of the second amended complaint reveals that there are no product liability claims against the Medical Defendants and there are nothing but product liability claims against Bayer. Therefore, the Court is faced with competing interests: plaintiff and the Medical Defendants want a resolution of the timeliness issue relating to the state tort claims (and plaintiff would apparently prefer that this determination, based entirely on state law, be made by the state court), whereas Bayer wants to stay all proceedings until the JPML decides whether to transfer the case for inclusion in the MDL action before the Southern District of New York (and buttresses its argument in favor of this course of action by arguing that removal was proper because the Medical Defendants were fraudulently joined).[7]

Apparently in response to the portion of the removal petition that argues for severability, plaintiff asserts in her motion to remand that the claims against the Medical Defendants are not severable from those of Bayer because she "properly alleged both product liability and medical malpractice/fraudulent concealment claims[]" and "has a right to pursue any and all potentially culpable parties." (Doc. No. 5 at 225.) She asserts that she has pleaded "multiple and alternative theories of recovery[, ]" as permitted by "[b]oth state and federal law[.]" ( Id., n. 4.)

This Court is of the view that all interests can be addressed by: (1) severing Counts I, II and III of the Second Amended Complaint and remanding those claims, which are entirely between Ohio residents and entirely dependent upon state law, to the Stark County Court of Common Pleas; and (2) retaining jurisdiction over Counts IV, V, VI, and VII, as claims between diverse citizens, ...

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