Hard to believe, but there are some plaintiffs who shun federal court. You all are as capable as we are of filling in the blank as to why that is so. Be that as it may, plaintiff attorneys have perfected all sorts of ways to avoid Article 3 judges and jury pools that draw from broader geographic areas. Naming a non-diverse defendant is one obvious example. Another is to plead damages that are under the $75,000 jurisdictional threshold. The former often involves fraudulent joinder. The latter also can have a whiff of fraud, but we have no clever moniker for it. Maybe fraudulent poor-mouthing?

In Shapiro v. NuVasive, Inc., 2019 U.S. Dist. LEXIS 173523 (S.D. Fla. Oct. 7, 2019), the court (eventually) shut down a plaintiff’s amount-in-controversy gamesmanship in a medical device product liability case. The plaintiff claimed injuries from broken screws in a spinal system operation. In her complaint, the plaintiff alleged “serious bodily injuries” requiring a follow-up surgery, resulting in “pain and suffering, disability, disfigurement, mental anguish, loss of the capacity for the enjoyment of life, the expenses of hospitalization medical care and nursing treatment, loss of earning capacity, loss of the ability to earn money, and aggravation of a previously existing condition.” That all sounds bad. That all sounds expensive. The defendant removed the case to federal court, but the plaintiff secured a remand because the demand in her complaint was only $15,000.

Then, in state court, the plaintiff revealed medical bills of over $80,000. The defendant once again timely removed. This time, the federal court denied remand. With specials of over $80,000, the defendant had shown by a preponderance of the evidence that the jurisdictional amount was met. The plaintiff tried to resist this conclusion by pointing to (1) her answer to a request for admission wherein she said that she was seeking less than the jurisdictional amount; and (2) she twice proposed settlement for an amount under $75,000. The plaintiff also argued that it was dirty pool to use her complaint allegations against her in setting the amount in controversy. That’s a bit of a head-scratcher. Of course a plaintiff’s allegations can be used against her. That is why we always tell our law students that the smart play is to say just enough in a complaint to start a lawsuit. There are times when one might want to go a bit beyond that to tell a story, but take care not to tell things that can come back to bite. Plus, the plaintiff seemed to think the compliant was pretty telling when she pointed to the $15,000 demand.

The Shapiro court did not reach the issue of whether the complaint bit the plaintiff. Rather, the $80,000 in medical bills carried the day. That was evidence enough to establish the amount in controversy needed for federal jurisdiction. So much for the poor-mouthing gambit. On to the litigation proper. Only now, the plaintiff’s credibility is zilch.