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Garey v. Abbott Laboratories

United States District Court, C.D. California

December 16, 2019

CYNTHIA GAREY, et al., Plaintiffs,
ABBOTT LABORATORIES, et al., Defendants.


          Dale S. Fischer, United States District Judge

         Defendants Abbott Laboratories and Abbott Laboratories, Inc. (collectively, Abbott) removed this case based on diversity jurisdiction. Dkt. 1 (Notice). Plaintiffs Cynthia Garey, Shannon Garey, Erin Kelley, and Megan Mackelvie (Plaintiffs) move for remand. Dkt. 23 (Mot.). Plaintiffs also seek leave to file an amended complaint. Dkt. 24 (Leave Mot.). Abbott opposes both motions. Dkts. 30 (Opp'n), 31 (Leave Opp'n). The Court deems this matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78; Local Rule 7-15.


         In 2006, Philip Garey, the husband of Plaintiff Cynthia Garey and father of Plaintiffs Shannon Garey, Erin Kelley, and Megan Mackelvie, received an implantable cardiac defibrillator (ICD) to address an arrhythmia. Dkt. 1-1 (Compl.) ¶¶ 5, 23. ICDs correct both fast and slow heart rates and contain a defibrillator that can shock the heart to enable an appropriate rhythm to take over. Id. ¶ 2. In 2015, after the battery in his 2006 ICD began to fail, Mr. Garey underwent surgery to implant a new ICD manufactured by Abbott. Id. ¶ 24. Although the lead that connected the ICD to Mr. Garey's cardiac tissue had been recalled in 2011, it was left in place during the 2015 surgery. Id. ¶¶ 6, 24. In 2016, Abbott issued a global medical device advisory and recall for the 2015 ICD due to premature battery depletion. Id. ¶ 8. In 2017, Mr. Garey was informed that the recalled lead was failing and that he would again need surgery. Id. ¶ 25. On April 12, 2017, the FDA sent a letter to Abbott warning that the ICD software was not fully verified during the final configuration test procedures. Id. ¶ 10. On May 19, 2017, Defendant Dr. Raymond Schaerf performed surgery to replace the failing, recalled lead, and the recalled ICD. Id. ¶¶ 26, 29. However, Schaerf was unable to remove the recalled ICD, so he moved it to the other side of Mr. Garey's chest. Id. ¶ 29. He was also unable to remove the entirety of the old lead, and left the fractured lead, as well as the tip of an extraction sheath (the surgical tool used to take out the lead), inside Mr. Garey. Id. ¶¶ 26, 29-30. Scharf notified Mr. Garey that “a foreign body had been left inside [his] chest cavity.” Id. ¶ 30.

         On May 25, 2017, Mr. Garey returned to Schaerf due to bleeding from his surgical incisions. Id. ¶ 27. Schaerf did a “complete analysis of the defibrillator system” but failed to notify Mr. Garey that the ICD software was not operating in accordance with its FDA approval. Id. ¶¶ 27-28. At some point thereafter, Schaerf, with the assistance of Abbott employees, attempted to re-program the recalled ICD. Id. ¶ 31. On August 6, 2017, Mr. Garey had a cardiology consultation[1] where it was observed that his ICD was “functioning inappropriately.” Id. ¶ 32. On August 13, 2017, remote diagnostics performed by Abbott's software found the ICD to be functioning normally. Id. ¶ 33.

         On August 21, 2017, the ICD software misread Mr. Garey's heart rate causing 70 high voltage shocks to be delivered to Mr. Garey's heart within a three- or four-hour period. Id. ¶ 34. The shocks “caused Mr. Garey to scream in agony” and his family called 911. Id. Because the ICD continued to inappropriately shock Mr. Garey, the hospital had to forcibly turn it off with a magnet. Id. ¶¶ 35, 37. However, substantial damage had already occurred and Mr. Garey died early the next morning. Id. ¶ 35.


         “Federal courts are courts of limited jurisdiction” and “possess only that power authorized by [the] Constitution and statute . . . .” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). A defendant may remove an action to federal court if the federal court could exercise subject matter jurisdiction over the action. 28 U.S.C. § 1441(a). “The removal statute is strictly construed against removal jurisdiction” and “[t]he defendant bears the burden of establishing that removal is proper.” Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). If a defendant fails to meet its burden of establishing the Court has subject matter jurisdiction, the suit is remanded. 28 U.S.C. § 1447(c).

         Federal courts have diversity jurisdiction where the amount in controversy exceeds $75, 000 and the action is between citizens of different states. 28 U.S.C. §§ 1332, 1441. For purposes of diversity jurisdiction, the Court “may disregard the citizenship of a non-diverse defendant who has been fraudulently joined.” Grancare, LLC v. Thrower, 889 F.3d 543, 548 (9th Cir. 2018). A non-diverse defendant is fraudulently joined “[i]f the plaintiff fails to state a cause of action against [the] resident defendant, and the failure is obvious according to the settled rules of the state.” Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001) (first alteration in original) (quoting McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987)). “[T]he test for fraudulent joinder and for failure to state a claim under Rule 12(b)(6) are not equivalent.” Grancare, 889 F.3d at 549. Instead, “the standard is similar to the ‘wholly insubstantial and frivolous' standard for dismissing claims under Rule 12(b)(1) for lack of federal question jurisdiction.” Id. In evaluating a claim of fraudulent joinder, “a federal court must find that a defendant was properly joined and remand the case to state court if there is a ‘possibility that a state court would find that the complaint states a cause of action against any of the [non-diverse] defendants.'” Id. (alteration in original) (emphasis in original) (quoting Hunter v. Philip Morris USA, 582 F.3d 1039, 1046 (9th Cir. 2009)). In this inquiry, “the district court must consider . . . whether a deficiency in the complaint can possibly be cured by granting the plaintiff leave to amend.” Id. at 550.


         The parties agree that the amount in controversy exceeds $75, 000 and that Schaerf and Plaintiffs are all citizens of California. However, Abbott claims that Schaerf was fraudulently joined. Plaintiffs bring one cause of action against Schaerf for negligence, alleging that he failed to provide health care within the acceptable standard in the medical community when he broke the tip of the extractor sheath during Mr. Garey's May 19, 2017 surgery, left the extractor sheath and the fractured lead inside of Mr. Garey's chest, and failed to advise Mr. Garey that those items could cause complications. Compl. ¶¶ 62-70. Abbott argues that this claim is barred by the statute of limitations and causation is not adequately pled.

         A. Statute of Limitations

         “In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” Cal. Civ. Proc. Code § 340.5. This provision “establishes two hurdles, not one, to the timely maintenance of a medical malpractice claim.” Hills v. Aronsohn, 152 Cal.App.3d 753, 758 (1984). However, if “a foreign body, which has no therapeutic or diagnostic purpose or effect” is left in the injured person, Cal. Civ. Proc. Code § 340.5, only the one-year discovery period applies. Ashworth v. Mem'l Hosp., 206 Cal.App.3d 1046, 1058 (1988), reh'g denied and opinion modified (Jan. 20, 1989) (The foreign body exception “gives that patient an unlimited time to discover or to use reasonable diligence to discover the presence of the ‘foreign body.' But once the patient discovers or through reasonable diligence would have discovered the ‘foreign body' and its role in her injury she only has one year to file her lawsuit against the practitioners responsible for leaving the ‘foreign body' inside her.”).

         Abbott does not dispute that this action was brought within three years of the date of injury (whether Mr. Garey's May 2017 surgery or August 2017 death). Instead, Abbott argues that Plaintiffs' negligence claim against Schaerf is barred by the one-year limitation period because Plaintiffs discovered, or should have discovered, the injury either upon completion of the May 19, 2017 surgery, Notice ¶ 32, or after Mr. Garey's death on August 22, 2017, Opp'n at 6-7. Specifically, Abbott argues that because Schaerf “notified [Mr. Garey] that a foreign body had been left inside [his] chest cavity” after the May 2017 surgery, Compl. ¶ 30, his death ...

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