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Reider-Gordon v. Synthes Spine Co.

June 22, 2010

MIKHAIL REIDER-GORDON
v.
SYNTHES SPINE CO., L.P. ET AL.



The opinion of the court was delivered by: The Honorable Otis D. Wright II, United States District Judge

CIVIL MINUTES - GENERAL

Raymond Neal Not reported

Deputy Clerk Court Reporter / Recorder Tape No.

Proceedings (In Chambers): ORDER DENYING DEFENDANT DELAMARTER'S MOTION FOR REMAND [41]

The matter is before the Court on Defendant Rick B. Delamarter, M.D.'s ("Dr. Delamarter") motion to remand. (Docket No. 41.) The motion is made on the basis that the Court cannot exercise diversity jurisdiction over this case, because both Plaintiff Mikhail Reider-Gordon ("Plaintiff") and Dr. Delamarter are citizens of California as alleged in the First Amended Complaint ("FAC"). See 28 U.S.C. §§ 1332(a), 1447(e). The Court deems the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15. After careful consideration of the parties' papers, the motion is DENIED.

I. FACTUAL BACKGROUND

This is a products liability action. The following facts are alleged in the original complaint:*fn1

Plaintiff sought medical consultation and treatment from Dr. Delamarter, an orthopedic surgeon who operates Defendant Spine Institute. (Compl. ¶ 14.) Dr. Delamarter diagnosed Plaintiff with degenerative disc disease of the disc between the C-5 and C-6 cervical vertebras. (Id. ¶ 15.) Plaintiff began researching treatment options and learned of an artificial cervical disc called "ProDisc," which could be inserted in place of the degenerated disc. (Id. ¶ 16.) The disc was and is manufactured by Defendant Synthes. (Id.)

When Plaintiff learned of ProDisc, it had not been approved by the Food and Drug Administration ("FDA"), but was undergoing clinical trials.*fn2 Plaintiff read multiple reports of the purported success of ProDisc artificial disc trials. Plaintiff read that ProDisc had been through rigorous testing conducted by numerous doctor, including Dr. Delamarter. At this time, Plaintiff did not know that many of the doctors performing the trials, including Dr. Delamarter, were investors in Spine Solutions, either directly or as investors in funds that invested in the company, and those doctors thereby had a large financial interest in the outcome of the trials. (Id. ¶ 17.)

Plaintiff read claims by Dr. Delamarter that he had presided over the study of ProDisc. Dr. Delamarter and others claimed ProDisc had been found to result in significantly better outcomes than alternative treatments. Plaintiff avers that Defendants intentionally caused physicians implanting the device, the public, the FDA, and her to erroneously believe that the studies were legitimate, independent studies performed by disinterested physicians. In reality, many of the physicians who performed the studies, including Dr. Delamarter, had significant interest in the outcome of the studies. (Id. ¶ 18.)

Based on Defendants' misrepresentations, Plaintiff had cervical spinal surgery performed by Dr. Delamarter. (Id. ¶ 20).*fn3 Several months following the implantation of ProDisc, Plaintiff experienced pain in the neck and arms, along with numbness and tingling. (Id. ¶ 24.)

On September 12, 2008, Plaintiff experienced a total "body shock" with intense pain radiating through the neck and arms, with the left arm immobile for sixteen hours and she was unable to walk. (Id. ¶ 28.)

On December 16, 2008, Dr. Delamarter removed the ProDisc-C from Plaintiff's cervical spine and performed a fusion of the C5-C7 cervical vertebras. (Id. ¶ 30.)

After her surgery, Plaintiff learned of the defective nature of ProDisc and Defendants' fraudulent conduct. The damage caused by the defectively designed and improperly installed ProDisc resulted in Plaintiff having a significantly reduced range of motion in the cervical area, intermittent pain in the neck and arms, along with the inability to maintain proper posture and sit before a computer to perform functions related to her employment. (Id. ¶ 31.)

On December 14, 2009, Plaintiff filed this action in the Superior Court of California for the County of Los Angeles. The original complaint alleges five ...


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