Porta v. Exactech, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

ALFREDO PORTA, MEMORANDUM & ORDER

Plaintiff, 24-CV-2824 (NGG) (MMH)

-against-

EXACTECH, INC., EXACTECH U.S., INC., TPG,

INC., OSTEON HOLDINGS, INC., OSTEON

MERGER SUB, INC,, OSTEON INTERMEDIATE

HOLDINGS II, INC., and MICHAEL

LACZKOWSKI,

Ci effets,

NICHOLAS G. GARAUFIS, United States District Judge.

This action is among thousands in a multi-district litigation con-

cerning injuries caused by Defendant Exactech, Inc.’s allegedly

defective hip, knee, and ankle orthopedic implants, (See In re Ex-

actech Polyethylene Orthopedic Products Liability Litigation, 22-

MD-3044 (NGG) (MMH).)

Plaintiff Alfredo Porta (“Plaintiff or “Porta”), a recipient of Ex-

actech, Ine.’s knee implant, filed this action against Exactech, Inc.

and Exactech, U.S., Inc. (collectively, “Exactech”}, Michael Lacz-

kowski, and numerous other entities in the Connecticut Superior

Court for the judicial district of Fairfield at Bridgeport, alleging

products liability in violation of Conn. Gen. Stat. §§ 52-572n and

52-572q. (Compl. (Dkt. 1-1) at 1.) Exactech timely removed the

state court action to the United States District Court for the Dis-

trict of Connecticut, invoking the court’s diversity jurisdiction.

(Notice of Removal (Dkt. 1) at 1.) The Judicial Panel on Multi-

district Litigation subsequently ordered the case transferred to

this court on April 16, 2024. (MDL Transfer Order (Dkt 31).)

Before the court is Porta’s January 4, 2024 motion to remand the

action to the Connecticut Superior Court on the grounds that the

parties are non-diverse and that one of the Defendant-entities did

not properly consent to removal. (Plaintiffs Motion to Remand

(“Pls Mot.”) (Dkt. 5-1) at 4, 15.) Exactech opposes the motion,

asserting that Porta fraudulently joined the single non-diverse

defendant and that all Defendants properly consented to re-

moval. (Defendants’ Memorandum of Law in Opposition (“Defs.’

Opp.”) (Dkt. 28) at 1, 14.) For the reasons that follow, Porta’s

motion is DENIED and Defendant Michael Laczkowski is hereby

DISMISSED from this action without prejudice.

I. BACKGROUND!

On December 23, 2020, Porta underwent right knee replacement

surgery at the Hospital for Special Surgeries in New York City?

(“HSS NYC”) wherein his surgeon, Dr. Scott Rodeo, implanted

Exactech’s total knee replacement system (the “Exactech Knee”).

(Compl. { 16.) Between August 2021 and February 2022, Ex-

actech issued several recalls of the polyethylene components in

their implants, including the knee implant installed in Porta. (Id.

1 Tn resolving this motion, the court treats all facts alleged in Porta’s Com-

plaint as true and construes all factual and legal issues in his favor.

Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 461 (2d Cir. 1998) (in the

context of a motion to remand following a defendant’s removal, “ail factual

and legal issues must be resolved in favor of the plaintiff.”}; Macklin v. Lex-

ington Ins. Co., No. 20-CV-05372 (ER), 2020 WL 5796814, at *2 (S.D.N.Y.

Sept, 29, 2020) (“When considering a motion to remand, the district court

accepts as true all relevant allegations contained in the complaint and con-

strues all factual ambiguities in favor of the plaintiff”); Pierre v. Capital

One Fin, Corp., No. 21-CV-30 (PKC) (LB), 2021 WL 11690691, at *1 n.3

(F.D.NLY. 2021) (same).

2 The Complaint does not specify at which Hospital for Special Surgery lo-

cation Porta received his knee replacement. (See Compl. { 16.) Exactech

states that Porta’s surgery occurred at the Hospital for Special Surgery in

New York City. (Defs.’ Opp. at 1.) Porta does not dispute that assertion,

and his motion to remand implies that his surgery occurred in New York

City. (Pl.’s Mot. at 11.) Thus, for purposes of adjudicating Porta’s motion

to remand, the court assumes Porta’s surgery occurred at the Hospital for

Special Surgery in New York City.

€ 23.) According to Porta, Exactech packaged its implants in vac-

uum sealed bags that were oxygen resistant but did not contain

a secondary layer to further augment oxygen resistance. (Id.}

This caused the polyethylene components in the implants to de-

grade prematurely, forcing some patients to undergo revision

surgeries. (Id. { 23.) Porta was one such patient: on January 24,

2023, he underwent right knee revision surgery with Dr. Rodeo

at HSS NYC. Ud. 4 30.)

On December 1, 2023, Porta filed the instant Complaint against

Exactech, TPG, Inc., Osteon Holdings, Inc., Osteon Merger Sub,

Inc., Osteon Intermediate Holdings II, Inc., and Michael Lacz-

kowski in Connecticut Superior Court, alleging products liability

in violation of the Connecticut Product Liability Act (the “CPLA”),

Conn. Gen. Stat. 88 52-572n and 52-572q, and claiming punitive

damages as to the corporate Defendants. (id. {{ 1-35, 30(2)-

33(2)°.) In short, Porta alleges that Exactech and the remaining

corporate defendants (collectively, the “TPG Defendants”) vio-

lated the CPLA in numerous respects, including by

manufacturing the Exactech Knee in a defective manner and

“failing to adequately warn Plaintiffs orthopedic surgeon, the

medical community, [P]laintiff, and the public about the risks of

[the implant].” Ud. 431.)

Porta also alleges CPLA violations against Michael Laczkowski,

the only individual named in the Complaint. Ud. { 20-31.) Porta

claims that Laczkowski worked for Exactech and the TPG De-

fendants as a sales representative tasked with marketing and

advertising the Exactech Knee to physicians’ offices, hospitals,

3 Count One—the products liability claim—~spans paragraphs 1-35 of the

Complaint. Instead of starting at paragraph 36, Count Two—the punitive

damages claim—starts at paragraph 30 and ends at paragraph 33. (See

Compl, Count One, Count Two.} Te distinguish between the overlapping

paragraph numbers, references to the paragraphs that fall under Count

Two of the Complaint will be denoted by a (2) next to the paragraph num-

ber.

and other healthcare facilities, “including HSS.” Ud. { 17.) Porta

further alleges that “[i}n many instances, sales reps such as [Lacz-

kowski] were present during surgeries involving the [Exactech

Knee] and provided implant components to the surgeon.” (id. §

18.) From this, Porta asserts that Laczkowski qualifies as a “prod-

uct seller” subject to liability under the CPLA, that he knew or

reasonably should have known about the alleged defects in the

Exactech Knee, and that he should have warned Porta, his sur-

geon, the medical community, and the public about the risks of

the implant. Ud. §{ 21, 31.)

Exactech timely removed the state court action to the United

States District Court for the District of Connecticut, invoking the

court’s diversity jurisdiction. (See Notice of Removal at 1.)

On January 4, 2024, Porta moved to remand the action back to

Connecticut Superior Court, arguing that: (1) remand is proper

because both he and Laczkowski are citizens of Connecticut, thus

destroying diversity under 28 U.S.C. § 1332 and rendering Ex-

actech’s removal improper under 28 U.S.C. 1441(b)(2); and (2)

the TPG Defendants did not properly consent to removal as re-

quired under 28 U.S.C. § 1446(b)(2)(A) because, although

Exactech obtained their written consent to removal, the TPG De-

fendants previously represented to Plaintiffs counsel that they

would not remove the action, and they should not “be allowed to

renege on the deal.” (Pl.’s Mot. at 4, 15-16.) Exactech opposes

the motion, asserting that Laczkowski was fraudulently joined

and the TPG Defendants’ written consent to removal was proper.

(Defs.’ Opp. at 1, 14.) Porta’s motion was fully briefed before the

District of Connecticut on January 29, 2024. (See Pi.’s Reply (Dkt.

29).)

In April 2024, the Judicial Panel on Multidistrict Litigation or-

dered the case transferred to the Eastern District of New York.

(MDL Transfer Order at 2.) The case officially transferred to this

court on April 17, 2024, (See Transfer Statement Dated April 17,

2024.) Thereafter, Porta voluntarily dismissed without prejudice

his claims against the TPG Defendants. (Notice of Voluntary Dis-

missal (Dkt. 35).)

II DISCUSSION

Section 1332 grants federal district courts original jurisdiction

over all civil actions “between . . . citizens of different States”

where the amount in controversy exceeds $75,000. 28 U.S.C. §

1332(a). The “between . . . citizens of different States” language

requires complete diversity between all plaintiffs and defendants.

Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005).*

While Section 1332 permits a plaintiff to invoke diversity juris-

diction, “[Section] 1441 gives defendants a corresponding

opportunity.” Id. Section 1441(a) provides: “any civil action

brought in a State court of which the district courts of the United

States have original jurisdiction[] may be removed by the de-

fendant or the defendants[] to the district court [where the state

action is pending].” 28 U.S.C. § 1441(a). However, defendants

may not remove a state action to federal court on the basis of

diversity if “any of the parties in interest properly joined and

served as defendants is a citizen of the State in which such action

is brought.” Id. § 1441(b)(2). Additionally, when an action “is

removed solely under section 1441 (a), all defendants who have

been properly joined and served must join in or consent to the

removal of the action.” Id. § 1446(b) (2) (A). Ultimately, the party

opposing a motion to remand “bears the burden of demonstrat-

ing the propriety of removal.” Cal. Pub. Emps.’ Ret. Sys. ¥.

WorldCom, Inc., 368 F.3d 86, 100 (2d Cir. 2004).

The parties agree that Porta is a citizen of Connecticut, Exactech

is a citizen of Florida, the TPG Defendants are citizens of Florida,

4 When quoting cases, unless otherwise noted, all citations and internal

quotation marks are omitted and all alterations are adopted.

Delaware, or Texas, and Laczkowski is a citizen of Connecticut.

(Notice of Removal at 3-4; see also Compl. (4 1-9 (ascribing

same citizenships to parties).} The parties also appear to agree

that, if Laczkowski was properly joined, his presence in this ac-

tion would destroy diversity under Section 1332 and render

Exactech’s removal improper under Section 1441(b)(2).° (PL’s

Mot. at 7; Defs.’ Opp. at 2.) However, the parties dispute whether

Laczkowski was fraudulently joimed and whether the TPG De-

fendants properly consented to removal. The court addresses

each dispute in turn.

A. Fraudulent Joinder

Porta asserts that Laczkowski is a proper defendant in this action

because he qualifies as a “product seller” subject to liability under

the CPLA and, therefore, removal is prohibited because the par-

ties are non-diverse and Laczkowski is a citizen of the state in

which the suit was brought. (P1.’s Mot. at 7.) Exactech argues that

Laczkowski is not a “product seller” under the CPLA because he

has no real connection to this case. (Defs.’ Opp. at 2.) Instead,

Porta fraudulently joined Laczkowski in an effort to defeat the

court’s diversity jurisdiction, and the court may ignore his pres-

ence for purposes of assessing jurisdiction. Ud.)

1. Applicable Law

A plaintiff “may not defeat a federal court’s diversity jurisdiction

and a defendant’s right of removal by merely joining as defend-

ants parties with no real connection [to] the controversy.”

Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 460-61 (2d Cir.

1998). This rule “is known as the doctrine of fraudulent joinder.”

Brown y. Eli Lilly and Co., 654 F.3d 347, 356 (2d Cir. 2011). To

establish fraudulent joinder, the defendant must demonstrate by

5 Porta does not dispute that the remaining substantive and procedural re-

quirements for removal are satisfied, including the amount in controversy

requirement. (Pl.’s Mot. at 4, 15.)

clear and convincing evidence “either that there has been out-

right fraud committed in the plaintiffs pleadings, or that there is

no possibility, based on the pleadings, that [the] plaintiff can

state a cause of action against the non-diverse defendant in state

court.” Pampillonia, 138 F.3d at 461. Under the second option,

“Ca]ny possibility of recovery, even if slim, militates against a

finding of fraudulent joinder; only where there is no possibility

of recovery is such a finding warranted.” Rosenfeld v. Lincoln Life

Ins. Co., 239 F. Supp. 3d 636, 639 (E.D.N.Y, 2017). Fraudulent

joinder “results in dismissal of the non-diverse defendant, and

denial of a motion to remand.” Id. at 638.

While “federal law applies to the question of fraudulent joinder,

the ultimate question is whether state law might impose liability

on the facts involved.” Id. at 639. Exactech argues that there is

no possibility that Porta can state a cause of action against Lacz-

kowski for products liability in state court. (Defs.’ Opp. at 4.)

Whether Porta can state a claim against Laczkowski in state court

turns on whether Laczkowski qualifies as a “product seller” under

the CPLA. (PI.’s Mot. at 7.) Ultimately, Exactech bears the “heavy

burden” of proving fraudulent joinder. Pampillonia, 138 F.3d at

461. While the court may look beyond the pleadings in conduct-

ing the fraudulent joinder inquiry, it must resolve “all factual and

legal issues” in favor of Porta. Id. at 461-62 (considering affidavit

to determine whether defendant was fraudulently joined).

In Connecticut, products liability actions are governed by the

CPLA, Conn. Gen. Stat. §§ 52-572m, et seg. The CPLA provides a

single statutory cause of action for products liability claims. It

“encompasses all previous common law actions against ‘product

sellers, including actions of negligence, strict liability, and war-

ranty, for harm caused by a product.” Oliva v. Bristol-Myers

Squibb Co., No. 05-CV-00486 (JCH), 2005 WL 3455121, at *4

(D. Conn. 2005) (quoting Conn, Gen. Stat. § 52-572n). The CPLA

does not eliminate common law substantive rights, but rather

consolidates them into a single statutory count to simplify the

pleadings. LaMontagne v. E.I. Du Pont De Nemours & Co., Inc., 41

F.3d 846, 855-56 (2d Cir. 1994).

Critically, to be liable under the CPLA, a defendant must qualify

as a “product seller.” See Conn. Gen. Stat. §52-572n(a) (“A prod-

uct liability claim as provided in [the CPLA] may be asserted and

shall be in lieu of all other claims against product sellers.” (em-

phasis added)). The CPLA defines a “product seller” as:

any person or entity, including a manufacturer, whole-

saler, distributor or retailer who is engaged in the

business of selling such products whether the sale is for

resale or for use or consumption. The term “product

seller” also includes lessors or bailors of products who

are engaged in the business of leasing or bailment of

products.

Id. § 52-572m(a).

The Supreme Court of Connecticut describes “product sellers” by

distinguishing them from service providers, who are not subject

to liability under the CPLA. See, e.g., Normandy v. Am. Med. Sys.,

Inc., 262 A.3d 698, 704-06 (Conn. 2021) (discussing the distinc-

tion}, Thus, to maintain an action under the CPLA, “the plaintiff

must establish and prove, inter alia, that the defendant was en-

gaged in the business of selling the product.” Zichichi v. Middlesex

Mem Hosp., 204 Conn. 399, 403 (Conn. 1987). “Once a partic-

ular transaction is labeled a service, as opposed to a sale of a

product, it is outside the purview of [the CPLA].” Id.; see Nor-

mandy, 262 A.3d at 705-06 (reviewing sister state decisions and

concluding that hospitals predominantly held to be service pro-

viders, not product sellers); Burkert v. Petrol Plus of Naugatuck,

Inc., 216 Conn. 65, 72 (Conn. 1990) (finding trademark licensor

not a product seller under the CPLA). Whether a defendant qual-

ifies as a product seller is a question of law. Burkert, 216 Conn.

at 72.

Connecticut courts have not addressed whether sales represent-

atives such as Laczkowski qualify as product sellers under the

CPLA. However, a few cases provide the court with guidance on

the issue.

In Burkert, General Motors Corporation (“GM”) licensed to third

parties the right to use its trademark, “Dexron II,” on transmis-

sion fluid if the fluid passed certain performance tests. Id, at 67-

68. In a lawsuit brought by buyers of allegedly defective trans-

mission fluid bearing the “Dexron II” trademark, the Supreme

Court of Connecticut determined that GM was not a product

seller under the CPLA. Id. at 72. The court explained that because

GM did “no more than allow others to use its . . . trademark in

the production, marketing and distribution of transmission

fluid,” it was not sufficiently involved in the “stream of com-

merce” to be considered a product seller under the CPLA. Id.

Similarly, in Fitzgerald v. Landscape Structures, Inc., a parent sued

a playground equipment manufacturer and its New England

sales representative for products liability under the CPLA and for

common law negligence following her daughter’s injury on the

manufacturers playground equipment. No. 060923, 2000 WL

1824160, at *1 (Conn. Super. Ct. 2000). The defendants argued

they were entitled to summary judgment on plaintiffs negligence

claim because the sales representative qualified as a “product

seller’ and, therefore, the CPLA provided her exclusive remedy.

Id. at *5. The Connecticut Superior Court disagreed, concluding

that the sales representative was not a “product seller” but a ser-

vice provider outside the purview of the CPLA. Jd. Although the

sales representative often sold playground equipment directly to

towns and local municipalities, in this instance, the manufacturer

sold the equipment to the town, while the sales representative

merely supervised the town’s installation of the equipment. Id.

With “no evidence to support [defendants’] argument that it was

actually [the sales representative] that made the sale to the

town,” the court concluded that the sales representative was not

a product seller under the CPLA. Id. Apparently critical to the

courts’ conclusions in Burkert and Fitzgerald was the defendant’s

lack of involvement in the “stream of commerce” that brought

the particular product to the particular plaintiff at issue. Burkert,

216 Conn. at 73, 77-84; Fitzgerald, 2000 WL 1824160, at *5.

The District of Connecticut applied the “product seller” definition

in comparable circumstances in Oliva v. Bristol-Myers Squibb.

There, the plaintiff, Daniel Oliva, sued Bristol-Myers Squibb

(“BMS”) and Dr. Robert Normandia in Connecticut Superior

Court pursuant to the CPLA, alleging injuries stemming from his

use of a drug manufactured, sold, and distributed by BMS. Oliva,

2005 WL 3455121, at *3. Oliva claimed that Dr. Normandia “was

engaged by BMS to visit or detail physicians’ offices, hospitals,

and other health care facilities to promote [the drug] and to en-

courage physicians and other health care providers to prescribe,

recommend, or utilize [the drug] for patients.” Id. He further al-

leged that Dr. Normandia “made numerous sales and marketing

calls on the plaintiffs treating physician,” and that, during those

calls, Dr. Normandia “bought lunch for the entire office and

made a sales and marketing presentation concerning the alleged

value of [the drug] in treating various infections.” Id. According

to Oliva, these marketing calls induced his physician to prescribe

BMS’s drug to him. id.

The defendants removed the case to the District of Connecticut,

invoking the court’s diversity jurisdiction. Id. at *1. Oliva moved

to remand the case to the Connecticut Superior Court on the

ground that both he and Dr. Normandia were citizens of Con-

necticut, thus destroying diversity and rendering removal

improper under Section 1441(b) (2). Id. Defendants opposed the

motion, arguing fraudulent joinder. Id. As here, whether Dr. Nor-

mandia was fraudulently joined turned on whether he qualified

as a “product seller’ under the CPLA.

10

The district court noted that the CPLA was modeled on the

United States Department of Commerce’s Draft Uniform Product

Liability Law (“Draft Law”), 44 Fed. Reg. 2996-3019 (1979),

and, as a result, the Connecticut Supreme Court “look[s] to the

commentary from that draft for guidance in applying CPLA sec-

tions similar to sections of the Draft [Law].” Olivia, 2005 WI,

3455121, at *4. The CPLA’s product seller definition is identical

to the product seller definition in the Draft Law. Compare Conn.

Gen. Stat. § 52-572m(a), with 44 Fed. Reg. 2997-2998. Addition-

ally, the commentary to the Draft Law states that a product seller

“includes all parties in the regular commercial distribution chain”

and suggests that a party “be considered a product seller where

a sale of a product is a principal part of the transaction and where

the essence of the relationship between the buyer and seller is

not the furnishing of professional skill or services.” 44 Fed. Reg.

3003.

The district court concluded that the defendants were unable to

show “no possibility” of liability as to Dr. Normandia. Olivia,

2005 WL 3455121, at *5. Although Dr. Normandia had no part

in the design or manufacture of the marketing materials for the

allegedly defective drug, he was “alleged to have extensive

knowledge of the product and to have convinced [Oliva’s doctor]

to prescribe [the drug to him].” Id. A state court “could find that

Normandia’s allegedly deliberate and successful efforts to pro-

mote the sale of [the drug] rendered the sale ‘a principal part of

the transaction’ between Normandia and [Oliva’s doctor], 44

Fed. Reg. 3003, and that they show significant involvement in

the stream of commerce that brought the product to the end user

[i.e., Oliva}.” Id. Additionally, a state court could reasonably de-

termine that Dr. Normandia “was particularly well placed to

avert the injury to Oliva, by warning [his doctor] of [the drug’s]

dangers and instructing him on proper use.” Id. Thus, the court

concluded, there was a possibility that Oliva could prove Dr. Nor-

mandia was a product seller under the CPLA. Id. at *5-6.

ii

2, Discussion

Porta alleges, and the court accepts as true, that Laczkowski

works for Exactech as an “Area Sales Manager” covering Con-

necticut and parts of New York, including Westchester and

Putnam Counties. (Pl.’s Mot. at 11-12.) Moreover, for purposes

of the instant motion, the court accepts as true Porta’s specula-

tion that these sales territories “could well include New York

City.” Ud. at 11.) Porta also claims that Laczkowski “visit[ed]

physicians’ offices, hospitals, and other health care facilities (in-

cluding, at a minimum, the [HSS] located in Stamford,

Connecticut, Wilton, Connecticut and Hamden, Connecticut” to

promote the Exactech Knee. (Id. at 8; Compl. 417.) Finally, Porta

alleges that “in many instances, sales reps such as Michael Lacz-

kowski[] were present during surgeries involving [the Exactech

Knee] and provided implant components to the surgeon.” (PL.’s

Mot, at 9; Compl. 4 18.)

Although he characterizes Laczkowski’s declaration as “self-serv-

ing,” Porta ultimately does not dispute that Laczkowski has

“never attended or covered a surgery with Dr. Rodeo,” that Lacz-

kowski does not “recall ever speaking to Dr. Rodeo in any

capacity,” and that Laczkowski ultimately did not play a role in

delivering the Exactech Knee to Porta specifically. (Laczkowski

Decl. (Dkt. 1-3) □□ 9-12; see generally Pl.’s Mot. at 11-14.) Nev-

ertheless, Porta asserts that Laczkowski qualifies as a product

seller subject to liability under the CPLA for the injuries he sus-

tained from the Exactech Knee. (PL’s Mot. at 7, 14.)

Resolving all factual and legal issues in favor of Porta, the court

concludes that Exactech has met its burden of proving “there is

no possibility, based on the pleadings, that [Porta] can state a

cause of action against [Laczkowski] in state court.” Pampillonia,

138 F.3d at 461, While there is a dearth of caselaw regarding

whether and when sales representatives such as Laczkowski

qualify as product sellers under the CPLA, the few instructive

12

cases discussed supra lead the court to the conclusion that there

is no possibility a state court would characterize Laczkowsld as a

product seller in these circumstances.

Even accepting Porta’s assertion that Laczkowski works for Ex-

actech, that his sales territories “could well include New York

City,” and that he has facilitated sales of the Exactech Knee to

HSS locations in Connecticut, Laczkowski still has “no real con-

nection” to this controversy. Pampillonia, 138 F.3d at 461. Unlike

Dr. Normandia, who made numerous sales and marketing calls

to Oliva’s physician that convinced him to prescribe the allegedly

defective drug to Oliva, Laczkowski has never even spoken to Dr.

Rodeo, let alone convinced him to use the Exactech Knee in

Porta’s surgery or observed him install Porta’s implant. Oliva,

2005 WL 3455121, at *5. Nor does Laczkowski have any sort of

relationship with Dr. Rodeo or HSS NYC that would render him

“particularly well placed to avert the injury to [Porta].” Id. Alt-

hough Laczkowski, like the sales representative in Fitzgerald,

may have convinced some physician in some other hospital to

implant the Exactech Knee in some other patient, Porta does not

allege that it “was actually [Laczkowski] that made the sale to

[Dr. Rodeo or HSS NYC].” Fitzgerald, 2000 WL 1824160, at *5.,

Absent some allegation demonstrating a “significant involvement

in the stream of commerce that brought the [Exactech Knee] to

[Porta],” the court concludes there is no possibility that a state

court would classify Laczkowski as a product seller. Oliva, 2005

WL 3455121, at *5, Rather, Laczkowski simply has no rea! con-

nection to this controversy. For that reason, “there is no

possibility, based on the pleadings, that [Porta] can state a cause

of action against [Laczkowski] in state court.” Pampillonia, 138

¥.3d at 461.

To conclude otherwise would subject all Exactech sales repre-

sentatives to liability under the CPLA, regardless of their

connection to the plaintiffs injuries. It is true that a “principal

13

purpose of the product liability statute is to protect people from

harm caused by defective and hazardous products,” and, “to

meet this purpose, it is necessary that the statute be read to reach

all conduct which affects the safety of a product prior to its entry

into the stream of commerce.” Rodia v. Tesco Corp., 527 A.2d 721,

723 (Conn. App. Ct. 1987). But the court cannot conclude that

the CPLA was intended to cover individual sales representatives

with no connection to the specific product or plaintiff at issue.

Such individuals do not engage in “conduct [that] affects the

safety of [the particular] product prior to its entry into the stream

of commerce.” Id.

It therefore makes no difference whether Laczkowski advertised

and sold the Exactech Knee to other HSS locations. (See Pl.’s Mot.

at 8.) HSS has over twenty locations across New York, New Jer-

sey, Connecticut, Florida, and even Colombia. (HSS Website

(Dkt. 5-7) at ECF 2-6.) Under Porta’s rationale, any sales repre-

sentative who has sold or advertised the Exactech Knee to any

HSS location would qualify as a “product seller” subject to liabil-

ity under the CPLA for Porta’s injuries, simply because that HSS

location is part of “the corporate entity that installed the defective

product in [Porta].” (Pl.’s Mot. at 8.) A sales representative who

sold the Exactech Knee to the HSS in Palm Beach would be liable

to Porta under the CPLA despite having no actual connection to

Porta or his implant, simply because HSS Palm Beach belongs to

the same parent institution as HSS NYC. The court is satisfied

there is “no possibility” a Connecticut court would adopt this

reading of the CPLA. Pampillonia, 138 F.3d at 461.

The out-of-circuit case cited in Porta’s motion does not convince

the court otherwise. (See Pl.’s Mot. at 6 (citing Hughes v. -Flow

Corp., No. 08-CV-707 (SEB) (TAB), 2009 WL 10689808 (S.D.

Ind. Feb, 26, 2009).) In Hughes, plaintiffs Roger and Pamela

Hughes sued I-Flow Corporation and Darlene Rowland, an I-

Flow sales representative and Indiana resident, in Indiana state

14

court pursuant to the Indiana Products Liability Act, alleging that

Roger Hughes suffered injuries as a result of his physician’s im-

proper use of L-Flow’s “pain pump.” Hughes, 2009 WL 10689808,

at *1. According to the complaint, Rowland observed Hughes’s

physician and his staff use and maintain I-Flow’s pain pump im-

properly, and reportedly approved of their improper use of the

pump. Id.

The defendants removed the action to the United States District

Court for the Southern District of Indiana, invoking the court’s

diversity jurisdiction and asserting fraudulent joinder as to Row-

land. id. Applying the relevant provisions of the Indiana Products

Liability Act, which holds “manufacturer[s]” and “seller[s]” liable

for products liability, the Southern District of Indiana concluded

there was a “reasonable possibility that Indiana might deem Ms.

Rowland a ‘seller’ under the Act.” Id. at *3-4. The court likened

Rowland’s involvement in Hughes’s injuries to that of Dr. Nor-

mandia in Oliva, but ultimately rested its conclusion on the fact

that “no Indiana court has held that a sales representative like

Rowland is precluded from liability under the Act, and Indiana

caselaw gives little indication [whether a particular] interpreta-

tion of ‘seller’ would be favored.” Id. at *4.

Hughes is inapposite for several reasons. First, Hughes dealt with

a distinct state statute in distinct legal cireumstances—-the South-

ern District of Indiana appeared to have even fewer cases at its

disposal than the court does in this case. Id. Here, Oliva, Fitzger-

ald, and Burkert all provide support for the court’s conclusion

that a Connecticut court would not classify Laczkowski as a prod-

uct seller under the CPLA. Second, like Dr. Normandia, Rowland

contributed directly to the plaintiffs alleged injuries. Rowland

advertised the pain pump to Hughes’s doctor, approved of his

improper use of the device, and was ultimately “particularly well

placed to avert the injury to [Hughes], by warning [his doctor]

of [the pump’s] dangers and instructing him on proper use.”

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Oliva, 2005 WL 3455121, at *5; Hughes, 2009 WL 10689808, at

*1_2. As discussed above, Laczkowski has no similar connection

to Porta’s implant or injuries. Thus, even setting aside the fact

that Hughes is of minimal persuasive authority, it is distinguisha-

ble from the circumstances of this case.

In sum, the court concludes that Laczkowski has “no real connec-

tion with [this] controversy.” Pampillonia, 138 F.3d at 461. The

doctrine of fraudulent joinder “is meant to prevent plaintiffs from

joining non-diverse parties in an effort to defeat federal jurisdic-

tion.” Brown, 654 F.3d at 356. Based on Porta’s own allegations,

Laczkowski has no more connection to this case than any other

sales representative at Exactech who advertised and sold the Ex-

actech Knee to other medical professionals at other hospitals.

Laczkowski has never facilitated orders placed by HSS NYC or

even spoken to Dr. Rodeo. Laczkowski’s utter lack of connection

to this case indicates that there is “no possibility” a Connecticut

court would classify Laczkowski as a product seller under the

CPLA, and that Laczkowski was fraudulently joined for the pur-

pose of defeating the court’s diversity jurisdiction. Pampillonia,

138 F.3d at 461.

When a non-diverse party is fraudulently joined, the court disre-

gards that party for purposes of assessing diversity jurisdiction,

Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 302

(2d Cir. 2004) (explaining that “courts overlook the presence of

a non-diverse defendant if from the pleadings there is no possi-

bility that the claims against that defendant could be asserted in

state court”), Additionally, such fraudulent joinder “results in dis-

missal of the non-diverse defendant, and denial of [the] motion

to remand.” Rosenfeld, 239 F. Supp. 3d at 638; Kuperstein v. Hoff-

man-Laroche, Inc., 457 F. Supp. 2d 467, 470 (S.D.N.Y. 2006)

(“Where joinder of a defendant is fraudulent, the court may dis-

miss the defendant from the action, and assert jurisdiction over

the remaining parties.”). Having determined that Laczkowski

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was fraudulently joined, the court hereby dismisses Laczkowski

from this action without prejudice.° However, the court must ad-

dress Porta’s second and final argument with respect to the TPG

Defendants prior to adjudicating his motion to remand.

B. The TPG Defendants’ Consent to Removal

Porta next argues that the TPG Defendants “bargained away

[their] right to consent” to removal because, although Exactech

obtained their written consent to removal, the TPG Defendants

previously told Porta that “TPG will not seek removal,” and as

such, they should not “be allowed to renege on the deal.” (Pls

Mot. at 15-16; January 2, 2024 Email Exchange (Dkt. 5-9) at

ECF 2.) Exactech argues that the TPG Defendants did not waive

their right to consent to removal, and, regardless, the TPG De-

fendants kept their promise to Porta because it was Exactech who

removed the action to federal court. (Defs.’ Opp. at 14-15.)

1. Applicable Law

When an action “is removed solely under section 1441 (a), all de-

fendants who have been properly joined and served must join in

or consent to the removal of the action.” 28 U.S.C. §

1446(b) (2) (A). Put another way, when a defendant removes an

action from state court pursuant to Section 1441 (a), “the remain-

ing defendants must independently express their consent to

removal.” Pietrangelo v. Alvas Corp., 686 F.3d 62, 66 (2d Cir.

2012).

6 ‘That Laczkowski is not subject to liability under the CPLA does not pre-

clude Porta from pursuing common law claims against him. See Burkert,

216 Conn. at 73. The CPLA provides “only that it is the exclusive remedy

for claims against product sellers.” Id. (emphasis added). As such, “the stat-

ute does not foreclose common law claims against those who are not

product sellers.” id. (emphasis added). Thus, Porta remains free to pursue

any common law claims he may have against Laczkowski. However, the

court is skeptical that any such claims would survive, given Laczkowski’s

utter lack of involvement in this case.

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In general, “conduct said to constitute a waiver must be clear and

unequivocal, as waivers are never to be lightly inferred.” Mooney

v. City of New York, 219 F.3d 123, 131 (2d Cir. 2000). Courts

apply this principle to purported waivers of a party’s right to re-

move a case to federal court. See, e.g., Cronin v. Family Educ. Co.,

105 F, Supp. 2d 136, 137-38 (E.D.N.Y. 2000) (“The waiver of a

party’s statutory right to remove a case to federal court must be

clear and unequivocal.”); JP Morgan Chase Bank, N.A., v. Reijten-

bagh, 611 F. Supp. 2d 389, 390 (S.D.N.Y. 2009) “Any waiver of

the right of removal must be clear and unequivocal.”); see also

Yakin v. Tyler Hill Corp., 566 F.3d 72, 75 (2d Cir, 2009) (An am-

biguous forum selection clause “is not a clear and unequivocal

waiver of federal jurisdiction.”).

2, Discussion

The TPG Defendants consented to Exactech’s removal via email

on January 3, 2024.’ (January 3, 2024 Email Exchange (Dkt. 1-

2) at ECF 2 (Question: “Can you please confirm whether the TPG

Defendants consent to Exactech’s removal of the Porta case to the

District of Connecticut based on the attached Notice of Re-

moval?” Answer: “TPG Defendants consent.”)}.} However, Porta

argues that the TPG Defendants “bargained away [their] right to

consent” because, just a day prior, counsel for TPG Defendants

stated: “We can confirm that TPG will not seek removal, but do

not represent the Exactech Defendants and make no representa-

tion on their behalf.” (Pl.’s Mot. at 15-16; January 2, 2024 Email

Exchange at ECF 2 (emphasis added).)

The court concludes that the TPG Defendants properly “con-

sent[ed] to the removal of the action.” 28 U.S.C. §

1446(b) (2) (A). Even if the TPG Defendants waived their right to

? Counsel for Exactech represents, and Porta does not dispute, that Lacz-

kowski also consented to removal. (Notice of Removal at 4 n.2.)

18

seek removal, they made no such assurances on behalf of Ex-

actech. (See January 2, 2024 Email Exchange at ECF 2.) Nor did

the TPG Defendants promise not to consent in the event of an-

other defendant’s removal. In other words, to the extent the TPG

Defendants made a binding promise to Porta, they kept it: it was

Exactech, not the TPG Defendants, who removed the action to

federal court. Thus, the TPG Defendants properly consented to

removal as required under Section 1446.

Ill. CONCLUSION

For the foregoing reasons, Porta’s motion to remand this action

to the Connecticut Superior Court is DENIED and Defendant Mi-

chael Laczkowski is hereby DISMISSED without prejudice from

this action.

SO ORDERED.

Dated: Brooklyn, New York

September 14 2024

s/Nicholas G. Garaufis .

NICHOLAS G. GARAUFIS;

United States District IS

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