# Cherkala v. LivaNova Deutschland GmbH

> District Court, M.D. Pennsylvania · June 27, 2022

URL: https://www.frixlaw.com/law-library/cases/10411862

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** June 27, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10411862. Public record. Not legal advice.