Our recent fraudulent joinder post ended with the observation, “[h]aving found fraudulent or procedural misjoinder, the court ‘sever[ed] the action’ against the healthcare provider ‘so as to preserve [the manufacturer’s] right to removal in the remaining action.’” (quoting In re Stryker Rejuvenate & ABG II Hip Implant Products Liability Litigation, 2023 WL 6514996, at *3 (D. Minn. 2023)).

That started us thinking about other uses of severance of non-indispensable parties to preserve diversity – particularly, as in the Rejuvenate case, medical malpractice defendants in product liability litigation – to preserve federal diversity jurisdiction.  We have discussed several individual decisions that successfully employed Rule 21 in this fashion:  here (discussing Mayfield v. London Women’s Care, PLLC, 2015 WL 3440492 (E.D. Ky. May 28, 2015)); here (discussing In re Yasmin & Yaz (Drospirenone) Marketing, Sales Practices & Products Liability Litigation, 2011 WL 2746086 (S.D. Ill. July 11, 2011)); here (discussing Stone v. Zimmer, Inc., 2009 WL 1809990 (S.D. Fla. 2009)); here (discussing DeGidio v. Centocor, Inc., 2009 WL 1867676 (N.D. Ohio June 29, 2009)); and here (discussing Joseph v. Baxter International, Inc., 614 F. Supp.2d 868, 872 (N.D. Ohio 2009)).

We most recently returned to this issue here, where we discussed Sullivan v. Calvert Memorial Hospital, 117 F. Supp.3d 702 (D. Md. 2015), in which the diverse product liability defendant removed an action that included non-diverse medical malpractice defendants, and successfully sought severance to keep the product liability aspects of the case in federal court.

Healthcare Defendants are not necessary parties to [plaintiff’s] claims against the [product] Defendants because the resolution of her claims against the . . . Healthcare Defendants would not necessarily resolve her claims against the [product] Defendants. . . .  [The medical malpractice claims] hinge on whether [those defendants] deviated from the standard of care of healthcare professionals in selecting the [product] and implanting it during the surgery.  Her products liability claims against the [product liability] Defendants turn on whether those defendants, at an earlier point in time, improperly designed, manufactured, tested, advertised, and gave directions regarding use of the [product].  These standards of care and the deviation from same are different and distinct from one another.  As a result, the Court has the authority to sever the claims against the two groups of defendants.

Id. at 707 (footnote omitted).  Failure to sever would also force the product liability defendants “to litigate [device-related] claims in state courts throughout the country whenever and wherever the claims might be joined to claims against healthcare providers.”  Id.

This time we’re covering this issue systematically.  The first point is well-settled.  Medical malpractice defendants are not “indispensable” parties under Rule 19, and thus need not be joined in product liability litigation.  The Supreme Court so held in Temple v. Synthes Corp., 498 U.S. 5 (1990) (per curiam), in a case where the product liability defendant argued that they were, and thus the plaintiff’s case should be dismissed for non-joinder of medical malpractice claims:

[Plaintiff] contends that it was error to label joint tortfeasors as indispensable parties under Rule 19(b) and to dismiss the lawsuit with prejudice for failure to join those parties.  We agree.  [Defendant] does not deny that it, the doctor, and the hospital are potential joint tortfeasors. . . .  As potential joint tortfeasors with [defendant], [malpractice defendants] were merely permissive parties.

Id. at 7-8.  Similarly, Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826 (1989), made clear that any federal court, even an appellate court, “has the authority to dismiss a dispensable nondiverse party by virtue of Rule 21.”  Id. at 833.  See also Todd v. Merrell Dow Pharmaceuticals, Inc., 942 F.2d 1173, 1176 (7th Cir. 1991); Atoe v. Orthopediatric US Distribution Corp., 2023 WL 2027835, at *3 (Mag. W.D. La. Jan. 26, 2023), adopted, 2023 WL 2021880 (W.D. La. Feb. 15, 2023); Torres v. Johnson & Johnson, 2021 WL 5310752, at *3 (D. Mass. Nov. 15, 2021); Weisbein v. Allergan, Inc., 2021 WL 1034979, at *5 (C.D. Cal. March 16, 2021); Hershberger v. Ethicon Endo-Surgery, Inc., 2012 WL 1067941, at *5 (S.D.W. Va. March 29, 2012); Hedgepeth v. GlaxoSmithKline, 2008 WL 11515533, at *3 n.10 (W.D. La. June 5, 2008) (all finding medical malpractice defendants dispensable in prescription product liability litigation litigation in non-removal situations).

So, to the heart of the matter.  What have we found in the way of additional federal cases severing otherwise diversity-destroying medical malpractice defendants?  Shepardizing our most recent case, Sullivan, turned up multiple essentially identical opinions holding that:

claims against Healthcare Defendants are medical negligence, which would require evidence on the care, treatment, and services provided, whereas the claims against [the device manufacturer] would require evidence on the development, manufacture, and testing of the . . . device along with evidence of [the manufacturer’s] knowledge, warnings, and representations regarding the device.  In other cases with similar facts, courts have found that healthcare defendants are not necessary or indispensable parties in a products liability claim against a medical device or pharmaceutical manufacturer.

In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Products Liability Litigation, 2023 WL 3972499, at *1-2 (S.D. Ohio June 13, 2023) (citations and quotation marks omitted).  “Because the Court has concluded that Healthcare Defendants should be severed pursuant to Rule 21, the Court need not address the doctrine of fraudulent misjoinder.”  Id. at *2.  See In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Products Liability Litigation, 2023 WL 3171742, at *1-2 (S.D. Ohio May 1, 2023); In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Products Liability Litigation, 2023 WL 3171743, at *1-2 (S.D. Ohio May 1, 2023); In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Products Liability Litigation, 2023 WL 3089067, at *1-2 (S.D. Ohio May 1, 2023).

Sullivan was also cited in Smith v. Hendricks, 140 F. Supp.3d 66 (D.D.C. 2015), which held that prescription medical product liability litigation claims against a manufacturer and medical malpractice claims against prescribing physicians “do not arise out of the same transaction, occurrence, or series of transactions or occurrences.”  Id. at 76.  Thus, “pursuant to Rule 21,” Smith “sever[ed] the claims against the Healthcare Provider Defendants and remand[ed] those claims and defendants to the D.C. Superior Court” while denying remand of product liability claims against a device manufacturer.  Id.

Another recent example of severance and remand of medical malpractice claims while retaining jurisdiction of product liability claims is In re National Prescription Opiate Litigation, 2023 WL 2155032 (N.D. Ohio Feb. 22, 2023).  This result was reached because:  (1) the two sets of claims involved “vastly different behavior”; (2) “any common questions of law or fact [we]re tangential at best”; (3) this result would “increase the potential for settlement, the efficiencies to the parties, and judicial economy”; (4) “severing the claims . . . will avoid prejudice to all parties”; and (5) “different witnesses and documentary proof will clearly be required for the different claims.”  Id. at *4-5.

In H.R. v. Medtronic, Inc., 996 F. Supp. 2d 671 (S.D. Ohio 2014), severance and partial remand of medical malpractice claims was proper because:

[T]he Medical Defendants are neither necessary nor indispensable because resolution of the tort claims against them would not resolve the products liability claims against the [device] Defendants, and vice versa.  Moreover, the claims involve different legal standards and difference factual allegations.  There are no product liability claims against the Medical Defendants and there are nothing but product liability claims against” the [device] Defendants. Furthermore, the claims against the [device] Defendants involve allegations of violations of federal law, but no such allegations are made against the Medical Defendants.

Id. at 682-83 (citations, quotation marks, and footnote omitted).

Other decisions severing and remanding nondiverse medical malpractice claims while retaining jurisdiction over product liability claims involving products prescribed or implanted by the medical malpractice defendants are:  Estate of Carter v. SSC Selma Operating Co. LLC, 2020 WL 3429040, at *7 (S.D. Ala. June 23, 2020) (“Rule 21 has consistently been interpreted to allow for the dismissal of dispensable, nondiverse parties to cure a lack of diversity.”) (citations omitted); In re Stryker Rejuvenate & ABG II Hip Implant Products Liability Litigation, 2013 WL 6511855, at *4 (D. Minn. Dec. 12, 2013) (“joinder of any malpractice, negligence, or misrepresentation claim against the Hospital Defendants with the other product liability claims . . . is inappropriate because the claims do not both involve common questions of law or fact”); Kelly v. Aultman Physician Center, 2013 WL 2358583, at *3 (N.D. Ohio May 29, 2013) (“the Medical Defendants are neither necessary nor indispensable because resolution of the tort claims against them would not resolve the products liability claims . . . and vice versa”); Cooke-Bates v. Bayer Corp., No. 3:10-cv-261, 2010 WL 3984830, at *4 (E.D. Va. Oct. 8, 2010) (a “decision to sever the claim alleged against [the malpractice defendant] will not greatly prejudice [plaintiff], but failure to do so could subject [the pharmaceutical defendant] to considerable prejudice”), certification denied, 2010 WL 4789838 (E.D. Va., Nov. 16, 2010); In re Guidant Corp. Implantable Defibrillators Products Liability Litigation, 2007 WL 2572048, at *2 (D. Minn. Aug. 30, 2007) (“joinder of the malpractice claim . . . with the other general negligence and product liability claims was inappropriate because the claims do not both involve common questions of law or fact”); Phillips v. Knoll Pharmaceutical Co., 2003 WL 27423681, at *4 (N.D. Ohio September 4, 2003) (severing non-diverse medical malpractice defendants; “a court may perfect diversity jurisdiction by dropping a non-diverse and dispensable party at any time” and may act “on the motion of a party or sua sponte”), reconsideration denied, 2004 WL 7384895 (N.D. Ohio Nov. 3, 2004) (malpractice defendants that “met the permissive joinder requirements” may be dropped “before deciding if diversity jurisdiction exists in removed cases”); Williams v. Knoll Pharmaceutical Co., 2003 WL 27423679, at *3 (N.D. Ohio July 11, 2003) (same), reconsideration denied, 2003 WL 27423680 (N.D. Ohio Aug. 18, 2003).

Without doing the other side’s research for them, we should point out that severance under Rule 20 is extremely discretionary with individual judges.  Thus, there are probably at least as many decisions going the other way as the decisions above granting severance and partial remand of medical malpractice claims.  But at least now, we have all the favorable decisions collected in one place – because that is what the Blog does.