Cherkala v. LivaNova Deutschland GmbH

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

IN RE: SORIN 3T HEATER- : MDL NO. 2816

COOLER SYSTEM PRODUCTS : CIVIL ACTION NO. 1:18-MD-2816

LIABILITY LITIGATION (NO. II) :

______________________________________ : (Judge Conner)

:

THIS DOCUMENT RELATES TO: :

Cherkala v. LivaNova Deutschland :

GmbH, et al., No. 1:21-CV-1627 :

MEMORANDUM

Plaintiffs Brian and Yvonne Cherkala move the court to join the above-

captioned civil action (“Cherkala II”) with their first-filed civil action, Cherkala

v. LivaNova Deutschland GmbH, No. 1:20-CV-1803 (M.D. Pa.) (“Cherkala I”), and

to remand both actions to the Court of Common Pleas of Cuyahoga County, Ohio,

for lack of subject-matter jurisdiction. Defendants LivaNova1 and Cleveland Clinic

Foundation (“Cleveland Clinic”) oppose the motion, contending joinder is improper

and plaintiffs fraudulently joined Cleveland Clinic (the only nondiverse defendant)

in Cherkala II to defeat diversity jurisdiction. For the reasons that follow, we will

grant in part plaintiffs’ motion, remanding Cherkala II only to the Cuyahoga County

Court of Common Pleas.

1 Plaintiff has sued three LivaNova entities: LivaNova Deutschland GmbH

(f/k/a Sorin Deutschland GmbH), LivaNova Holding USA, Inc. (f/k/a Sorin Group

USA, Inc.), and LivaNova USA, Inc. (f/k/a Cyberonics, Inc.). (See Doc. 1-2 ¶¶ 4-6).

We refer to this group collectively as “LivaNova” herein.

I. Factual Background and Procedural History

Plaintiff Brian Cherkala (“Cherkala”) underwent open-heart surgery at the

Cleveland Clinic Main Campus on August 28, 2017. (See Doc. 1-2 ¶ 47). Plaintiffs

allege that a Stockert 3T Heater-Cooler system manufactured and sold by LivaNova

was used during Cherkala’s surgery, and that design and manufacturing defects in

the system, as well as negligent maintenance of the system by hospital staff, caused

Cherkala to develop a Mycobacterium chimaera infection. (See id. ¶¶ 4-7, 16, 58-86).

Plaintiffs commenced their first lawsuit, Cherkala I, in the Court of Common

Pleas of Cuyahoga County, Ohio, in August 2020. See Cherkala I, No. 1:20-CV-1803,

Doc. 1-2. Therein, plaintiffs asserted statutory product-liability claims as well as

common-law negligence and loss-of-consortium claims against LivaNova only. See

id. ¶¶ 56-76. LivaNova removed Cherkala I to the United States District Court for

the Northern District of Ohio, see id., Doc. 1, and the case was transferred into the

Sorin 3T Heater-Cooler MDL assigned to this court on October 2, 2020, see id., Doc.

11.2 The parties have since engaged in mandatory discovery in the MDL, including

the exchange of plaintiff and defense fact sheets, respectively, on January 19, 2021,

and May 3, 2021. (See Doc. 20 at 3).

On August 26, 2021, plaintiffs initiated this lawsuit, Cherkala II, again in the

Court of Common Pleas of Cuyahoga County. (See Doc. 1-2). Plaintiffs’ complaint

reasserts their original claims against LivaNova, but also adds a negligence claim

2 The Sorin 3T Heater-Cooler MDL was initially assigned to former Judge

John E. Jones III. On July 23, 2021, following Judge Jones’ retirement, the Judicial

Panel on Multidistrict Litigation reassigned the MDL to the undersigned.

against Cleveland Clinic for failure “to properly maintain, clean[,] and disinfect the

Stockert 3T Heater-Cooler Systems” and “to train and supervise the nonmedical

technicians and/or engineers responsible for performing all maintenance, repair,

disinfection, and cleaning of” its Stockert 3T Heater-Cooler units. (See id. ¶¶ 82-83).

According to plaintiffs, they were unaware of Cleveland Clinic’s potential role in

causing Cherkala’s injury until they received the defense fact sheet in Cherkala I in

May 2021. (See Doc. 12 at 2). Together with their Cherkala II complaint, plaintiffs

filed a motion pursuant to Ohio Rule of Civil Procedure 10(D)(2)(b), positing their

claim against Cleveland Clinic was not a “medical claim” subject to Ohio’s affidavit-

of-merit requirement, but seeking an extension of time to obtain an affidavit if the

court disagreed with plaintiffs’ view of the claim. (See Doc. 1-3 at 3-15).

LivaNova removed Cherkala II to the Northern District of Ohio the same

day. (See Doc. 1). The notice of removal acknowledges that Cleveland Clinic is a

nondiverse defendant but asks the court to ignore its citizenship for jurisdictional

purposes because plaintiffs fraudulently joined Cleveland Clinic in Cherkala II to

destroy diversity. (See id. ¶¶ 17-37). The case was thereafter transferred into the

Sorin 3T Heater-Cooler MDL. (See Doc. 10).

Plaintiffs promptly filed the instant motion seeking “joinder” of Cherkala I

and Cherkala II under Federal Rule of Civil Procedure 20 and remand of the entire

combined lawsuit to Ohio state court for lack of jurisdiction. (See Doc. 12 at 1). For

its part, LivaNova moves to dismiss plaintiffs’ Cherkala II claims against LivaNova

pursuant to the first-filed rule and the rule against claim-splitting, or, alternatively,

to stay Cherkala II pending resolution of Cherkala I or to sever the Cherkala II

claims against LivaNova from those against Cleveland Clinic and merge the claims

against LivaNova into Cherkala I. (See Doc. 21 ¶¶ 7-10). Both motions are fully

briefed and ripe for disposition.

II. Legal Standards

A. Motion to Remand

Under 28 U.S.C. § 1441, a defendant may remove an action brought in state

court to federal district court when the claims fall within the federal court’s original

jurisdiction. See 28 U.S.C. § 1441(a). A plaintiff may move to remand the case due

to a procedural defect in the removal within 30 days after the notice of removal

is filed. See 28 U.S.C. § 1447(c). Statutes permitting removal “are to be strictly

construed against removal and all doubts should be resolved in favor of remand.”

Manning v. Merrill Lynch Pierce Fenner & Smith, Inc., 772 F.3d 158, 162 (3d Cir.

2014) (quoting Brown v. Jevic, 575 F.3d 322, 326 (3d Cir. 2009)). The removing party

bears the burden of proving that the matter is properly before the federal court.

See Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007) (citations omitted);

Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987)

(same).

B. Motion to Dismiss

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the

dismissal of complaints that fail to state a claim upon which relief may be granted.

See FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule

12(b)(6), the court must “accept all factual allegations as true, construe the

complaint in the light most favorable to the plaintiff, and determine whether, under

any reasonable reading of the complaint, the plaintiff may be entitled to relief.”

Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v.

Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). In addition to reviewing

the facts contained in the complaint, the court may also consider “exhibits attached

to the complaint, matters of public record, [and] undisputedly authentic documents

if the complainant’s claims are based upon these documents.” Mayer v. Belichick,

605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol.

Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).

Federal notice and pleading rules require the complaint to provide “the

defendant fair notice of what the . . . claim is and the grounds upon which it rests.”

Phillips, 515 F.3d at 232 (alteration in original) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint, the court conducts

a three-step inquiry. See Santiago v. Warminster Township, 629 F.3d 121, 130-31

(3d Cir. 2010). In the first step, “the court must ‘tak[e] note of the elements a

plaintiff must plead to state a claim.’” Id. at 130 (alteration in original) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next, the factual and legal elements of a

claim must be separated; well-pleaded facts are accepted as true, while mere legal

conclusions may be disregarded. Id. at 131-32; see Fowler v. UPMC Shadyside, 578

F.3d 203, 210-11 (3d Cir. 2009). Once the court isolates the well-pleaded factual

allegations, it must determine whether they are sufficient to show a “plausible claim

for relief.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556); Twombly, 550

U.S. at 556. A claim is facially plausible when the plaintiff pleads facts “that allow[]

the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678.

C. Motion to Join

Federal Rule of Civil Procedure 20 governs permissive joinder of parties in

one lawsuit, see FED. R. CIV. P. 20, and Rule 20(a)(2) speaks specifically to joinder of

defendants, see FED. R. CIV. P. 20(a)(2). The rule allows a plaintiff to join multiple

persons as defendants in one action when “any right to relief is asserted against

them jointly, severally, or in the alternative with respect to or arising out of the

same transaction, occurrence, or series of transactions or occurrences,” and “any

question of law or fact common to all defendants will arise in the action.” See id.

Rule 20 is a flexible rule that contemplates both fairness and judicial economy. See

7 CHARLES ALAN WRIGHT & ARTHUR R. MILLER ET AL., FED. PRACTICE & PROC. § 1652

(3d ed. 2022); Hagan v. Rogers, 570 F.3d 146, 153 (3d Cir. 2009) (quoting United Mine

Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966)). Although joinder is “strongly

encouraged” when the requirements of Rule 20 are satisfied, see Hagan, 570 F.3d at

153 (quoting United Mine Workers of Am., 383 U.S. at 724), the court may deny

joinder, in its discretion, to avoid prejudice, expense, or delay, see 7 WRIGHT &

MILLER, supra, § 1652.

III. Discussion

Plaintiffs ask us to join Cherkala I and Cherkala II pursuant to Rule 20(a)(2)

of the Federal Rules of Civil Procedure and thereafter remand the joined actions

for lack of subject-matter jurisdiction. Plaintiffs’ joinder argument encounters two

hurdles, both of which are fatal. First, Rule 20(a)(2) is a pleading rule that permits

joinder “in one action” of multiple defendants; it does not authorize joinder in one

action of two existing lawsuits. See FED. R. CIV. P. 20(a)(2). Rule 20(a)(2) may well

apply to allow plaintiffs to join LivaNova and Cleveland Clinic as defendants in one

pleading in Cherkala II, but plaintiffs cite no authority to support their view that the

rule also permits what would effectively be a merger of Cherkala I and Cherkala II

into a single lawsuit.3 Second, and more importantly, subject-matter jurisdiction is

a threshold inquiry, so our analysis necessarily begins not with plaintiffs’ motion for

joinder, but with their challenge to our diversity jurisdiction. See generally S. Cross

Overseas Agencies, Inc. v . Wah Kwong Shipping Grp. Ltd., 181 F.3d 410, 414 (3d

Cir. 1999) (courts must “decide jurisdiction first and then address other issues only

if there is jurisdiction” (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83

(1998))).

As the party seeking to invoke the court’s diversity jurisdiction, LivaNova

bears the burden of proving this matter is between citizens of different states and

the amount in controversy, exclusive of interest and costs, exceeds $75,000. See

28 U.S.C. § 1332(a); see also Frederico, 507 F.3d at 193 (citations omitted); Steel

Valley Auth., 809 F.2d at 1010 (same). There is no dispute sub judice that Cleveland

Clinic is a citizen of the same state as plaintiffs (Ohio) and thus is nondiverse. (See

3 Plaintiffs might have intended to invoke Federal Rule of Civil Procedure

42, which permits consolidation of separate civil actions. See FED. R. CIV. P. 42.

We presume, given plaintiffs’ reliance on Rule 20 case law, that their invocation of

Rule 20 was not inadvertent. In any event, even if plaintiffs intended to proceed by

consolidation under Rule 42 rather than joinder under Rule 20, as explained infra,

we must first ask whether we have subject-matter jurisdiction over Cherkala II

before we decide whether to consolidate that case with Cherkala I.

Doc. 1 ¶¶ 11, 12, 17; Doc. 1-2 ¶¶ 2, 3, 9). Nonetheless, LivaNova maintains Cleveland

Clinic was fraudulently joined and the court should disregard its citizenship in

assessing diversity. (See Doc. 1 ¶¶ 17-37; Doc. 20 at 15-19).

Federal courts may disregard the presence of a nondiverse defendant and

assume jurisdiction over a case if that defendant was fraudulently joined for the

purpose of defeating diversity. See In re Briscoe, 448 F.3d 201, 216 (3d Cir. 2006)

(citation omitted). Joinder is fraudulent if “there is no reasonable basis in fact or

colorable ground supporting the claim against the joined defendant, or no real

intention in good faith to prosecute the action against the defendant or seek a joint

judgment.” Id. at 219 (quoting Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 32

(3d Cir. 1985)). Our court of appeals has explained that a party charging fraudulent

joinder carries a “heavy burden of persuasion.” See Boyer v. Snap-on Tools Corp.,

913 F.2d 108, 111 (3d Cir. 1990) (quoting Steel Valley Auth., 913 F.2d at 1010, 1012

n.6). Before concluding joinder was fraudulent, the district court “must rule out

any possibility that a state court would entertain the cause.” See In re Briscoe, 448

F.3d at 219 (emphasis added) (citing Batoff v. State Farm Ins. Co., 977 F.2d 848, 851

(3d Cir. 1992)). But “[i]f there is even a possibility that a state court would find that

the complaint states a cause of action” against the nondiverse defendant, we must

find joinder to be proper and remand the case. See Boyer, 913 F.2d at 111 (citation

omitted).

LivaNova contends plaintiffs’ lone claim against Cleveland Clinic, whether

construed as a general negligence claim or a medical claim,4 is nonviable and was

necessarily included in Cherkala II for the sole purpose of defeating this court’s

diversity jurisdiction. (See Doc. 20 at 15-19). According to LivaNova, if plaintiffs’

claim is a general negligence claim as plaintiffs originally asserted, it is time-barred

by Ohio’s two-year statute of limitations. (See id. at 17); see also OHIO REV. CODE

ANN. § 2305.10(A). And if construed as a medical claim, it fails both for lack of an

affidavit of merit and also on timeliness grounds, as medical claims are subject to

an even shorter one-year limitations period under Ohio law. (See Doc. 20 at 17-19);

see also OHIO REV. CODE ANN. § 2305.113(A); OHIO R. CIV. P. 10(D)(2). LivaNova

acknowledges plaintiffs’ reliance on the termination-rule articulated by the

Supreme Court of Ohio in Frysinger v. Leech, 512 N.E.2d 337 (Ohio 1987), but

argues the rule defers claim accrual only in cases involving the negligence of

individual providers and not in cases, like this one, against the hospital system

alone. (See Doc. 20 at 18-19).

4 Plaintiffs attach to the instant motion a first amended complaint which was

apparently filed in the Court of Common Pleas of Cuyahoga County on August 27,

2021, (see Doc. 12-1), the day after LivaNova removed Cherkala II to this court. In

the amended complaint, plaintiffs attempt to recast their claim against Cleveland

Clinic, abandoning their initial assertion that the claim is a general negligence claim

and reasserting it as a medical claim. In determining whether a claim is fraudulent,

we “must focus on the plaintiff’s complaint at the time the petition for removal was

filed.” See In re Briscoe, 448 F.3d at 217 (quoting Batoff, 977 F.2d at 851-52). Our

analysis of the viability of plaintiffs’ claim against Cleveland Clinic is therefore

restricted to plaintiffs’ initial complaint.

The problem for LivaNova, as has been the problem in other lawsuits, see,

e.g., Warman v. LivaNova, No. 1:22-CV-183, Doc. 23 (M.D. Pa. June 21, 2022); Napier

v. LivaNova, No. 1:22-CV-901, Doc. 26 (M.D. Pa. June 21, 2022), is that it conflates

the fraudulent-joinder analysis with Rule 12(b)(6)-style merits review. LivaNova’s

argument against application of Frysinger tolling, for example, relies on its view

of when tolling is “typically applied” by Ohio’s intermediate appellate court—in

suits involving the alleged negligence of physicians. (See Doc. 20 at 18-19 (emphasis

added) (citing, inter alia, Birkmeier v. St. Rita’s Med. Ctr., No. 1-17-57, 2018 WL

3026047, at *5 (Ohio Ct. App. June 18, 2018))). As plaintiffs underscore, that same

court has also rejected the argument that Frysinger “never applies to hospitals.”

(See Doc. 28 at 4 (quoting Amadasu v. O’Neal, 891 N.E.2d 802, 806 (Ohio Ct. App.

2008))). Although Birkmeier attempts to cabin Amadasu to cases involving claims

against both a physician and a hospital, see Birkmeier, 2018 WL 3026047, at *6, we

cannot say the law in Ohio is so settled on this point as to “rule out any possibility”

a state court would entertain plaintiffs’ legal argument, see In re Briscoe, 448 F.3d

at 219 (emphasis added) (citing Batoff, 977 F.2d at 851).

LivaNova also makes much of plaintiffs’ failure to file an affidavit of merit

with their complaint as required by Ohio Rule of Civil Procedure 10(D)(2)(a). (See

Doc. 20 at 17-18). LivaNova ignores, however, that simultaneously with the filing

of their complaint, plaintiffs submitted a motion for extension of time to file their

affidavit of merit—a request explicitly contemplated by Ohio Rule 10(D)(2)(b). (See

Doc. 1-3 at 3-15); see also OHIO R. CIV. P. 10(D)(2)(a), (b). Plaintiffs’ motion remains

pending. Thus, assuming arguendo the state court were to construe plaintiffs’ claim

against Cleveland Clinic as a medical claim and grant the motion for extension of

time, Rule 10(D)(2) would present no barrier to the claim.

The above analysis should not be read to suggest plaintiffs’ claim against

Cleveland Clinic is free from infirmity. LivaNova has raised several, nonfrivolous

challenges to the merits of plaintiffs’ claim, and we acknowledge there are open

questions as to how plaintiffs’ claim should be construed and whether it is timely

based on that construction. But we need not be persuaded at this juncture that

plaintiffs are likely to prevail on their claim or even that they have stated a claim

sufficient to satisfy Rule 12(b)(6). We must decide only whether there is at least

“a possibility” an Ohio state court would find plaintiffs’ complaint states a claim

against Cleveland Clinic. See Boyer, 913 F.2d at 111 (citation omitted). Resolution

of that question involves, in part, wading into unsettled issues of Ohio state law, and

as we have recently observed, such matters are “most appropriately resolved by the

Ohio state courts.” See Warman, No. 1:22-CV-183, Doc. 23 at 9-10; Napier, No. 1:22-

CV-901, Doc. 26 at 9-10. We thus hold that LivaNova has not met its heavy burden

of demonstrating “there is no . . . colorable ground supporting” plaintiffs’ negligence

claim against Cleveland Clinic. See Boyer, 913 F.2d at 111 (quoting Abels, 770 F.2d

at 32); In re Briscoe, 448 F.3d at 216 (same).5

IV. Conclusion

The court will grant plaintiffs’ motion to the extent we will remand the

above-captioned action to the Court of Common Pleas of Cuyahoga County, Ohio.

An appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner

United States District Judge

Middle District of Pennsylvania

Dated: June 27, 2022

5 LivaNova asks the court, in the event we conclude plaintiffs’ claim against

Cleveland Clinic is not fraudulent, to sever the Cherkala II claims against LivaNova,

retain jurisdiction over those claims in the MDL, and remand only the claim against

Cleveland Clinic. (See Doc. 20 at 20). Our conclusion that plaintiffs’ claim against

Cleveland Clinic is not fraudulent, however, means the court lacks subject-matter

jurisdiction over this lawsuit. In the absence of subject-matter jurisdiction, any

such severance order would be a legal nullity. Accordingly, while we agree with

LivaNova that the claims against it in Cherkala II are duplicative of those against it

in Cherkala I and likely subject to dismissal, we are constrained to leave that matter

for resolution by the state court on remand.