As Predicted, Stryker Removes First Case Filed in Florida State Court

Prior to September 4, 2012, every case filed against Stryker or its subsidiary Howmedica Osteonics for Rejuvinate hip implant failures had been filed in New Jersey state court. But, on that date, Jaimie Simon’s case was filed by her lawyers in Broward County, Florida state court. As expected, on October 2, 2012 Stryker removed the case to the United States District Court for the Southern District of Florida. The case ended up in front of George Bush appointee judge Cecilia Altonaga.

The plaintiff alleged in her complaint that Stryker’s distributor, Orthopedics Solutions, Inc. had marketed, sold, distributed, retailed or supplied the Rejuvenate hip implant Simon received. These allegations should squarely implicate Orthopedics Solutions, Inc. as a proper defendant in a product defect case based upon Florida law. Emphasis should be placed upon the word “should.” Typically, under both Florida and federal pleading requirements, these allegations are sufficient to establish, at the pleading stage, that Orthopedics Solutions, Inc is properly joined. However, federal trial courts on the receiving end of similar removals have been chipping away at this long held standard of jurisprudence.

As a starting point, federal courts are courts of limited jurisdiction. They only have jurisdiction over disputes that are based upon federal law or when the two opposing parties are from different states. Personal injury tort suits do not involve issues of federal law. So, the only basis a product defect defendant has to retreat to the safe haven that is federal court is what is typically referred to as diversity jurisdiction. Diversity jurisdiction exists when every plaintiff is from a different state than every defendant. If one defendant is a citizen of the plaintiff’s state, diversity doesn’t exist and the case belongs in state court.

For over one hundred years, federal courts strictly applied these principles. If a case originally filed in state court were removed to federal court, judges would look to see if a legitimate state court defendant existed and if so, the case was swiftly sent back to state court. This process is known as remand.

More recently however, defendants, seeking to defend themselves in the friendly confines of federal court have been alleging that a diversity-defeating defendant was improperly joined. That is not an entirely new concept but historically it has met with very little success. However, over the past ten years, it is getting traction. Both federal trial courts as well as appellate courts have started to entertain the submission of evidence in the form of affidavits to bolster the argument that the diversity-defeating defendant is not properly a party. If the affidavit is persuasive and the argument is successful, the case remains in federal court.

It goes like this. In Florida (as in many states) a product retailer is liable to an injured party if it distributes, markets and sells a defective device. That makes the retailer or distributor a proper party. If the plaintiff is from Florida, the case between the two belongs in state court. Despite historically not being allowed, recent law allows Stryker’s distributor to submit an affidavit “claiming” in a very self-serving and conclusory way that it had nothing to do with marketing or selling the device. The truth of those statements doesn’t really matter. No discovery is allowed at the remand stage so it is impossible to expose the fraud. In essence, the decision to remand or not is up to the individual proclivities of the federal judge.

My personal experience with this issue has been varied. Some courts ignore the self- serving affidavit for what it’s worth and swiftly ship the case back where it belongs. Others are persuaded and rule against the plaintiff’s remand request.

What does this mean for the Simon case? Time will tell whether she is left to battle it out in federal court as a stand alone plaintiff fighting against all that Stryker can muster. Frankly, the affidavit served by the distributor in this case is very weak. It reeks of having been written by defense counsel and blindly signed by a person who is beholden to a powerful corporation for his very lucrative livelihood.

If venue choice in mass tort product liability litigation it sounds like Russian Roulette, it is.