The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
Plaintiff Carolyn Tucker commenced this personal injury medical device action by filing a Summons and Complaint in New York State Supreme Court, County of Erie, against Kaleida Health d/b/a Buffalo General Hospital ("Kaleida" or "Buffalo General"), and former defendant, Stryker Corporation ("Stryker").
On August 17, 2009, Stryker removed the action to this Court based on diversity of citizenship. Although Plaintiff and Kaleida are citizens of the same state, Stryker claims Kaleida was fraudulently joined because there is no possibility Plaintiff can state a claim against it. Plaintiff did not move to remand the case or otherwise contest Stryker's stated basis for removal. Thereafter, Plaintiff voluntarily dismissed its claims against Stryker (the alleged device manufacturer) and filed an Amended Complaint naming Howmedica Osteonics Corporation ("Howmedica") in its stead. The Amended Complaint contains the same allegations and claims against Kaleida as did the original complaint. (Docket Nos. 1, 11). Kaleida filed a Motion to Dismiss the Amended Complaint on the same grounds as briefed by Stryker on removal. (Docket No. 16) Plaintiff has opposed the Motion to Dismiss.
For the reasons that follow, Kaleida is terminated from the action based on fraudulent joinder, and its Motion to Dismiss is moot.
The following facts are taken from the Amended Complaint and are accepted as true for purposes of the following discussion.
Plaintiff and Kaleida are both residents of the state of New York for purposes of jurisdiction. (Am. Compl. ¶¶ 2, 3.) Howmedica is a resident of Michigan. (Id. ¶ 4.)
Plaintiff underwent right hip replacement surgery at Buffalo General on October 16, 1998. (Id. ¶ 5.) She received a four-piece prosthesis, known as a Stryker-Howmedica implant, manufactured by Howmedica and purchased by Kaleida. (Id. ¶ 6.) The prosthesis was implanted at Buffalo General and billed to Plaintiff. (Id. ¶ 9.)
The femoral head component of Plaintiff's prosthesis failed in February 2003, and was replaced on February 21, 2003. The defective component was sent to Buffalo General's Pathology Department. (Id. ¶¶ 9-10.)
Plaintiff's right hip prosthesis again failed in November 2006, and she received a total replacement of all prosthetic components on November 9, 2006. (Id. ¶ 11.) The femoral stem component, which had been implanted in October 1998, was fractured completely through. Id.
On several occasions thereafter, Plaintiff, through her attorneys, sought from Kaleida all records relating to her surgeries, including full medical records, bills, pathology reports, and the identification, location of, and warranties attached to the prosthetic devices. (Id. ¶¶ 12-14.) Buffalo General produced some, but not all, of the requested information. (Id.)
On June 24, 2008, Plaintiff commenced pre-suit discovery to obtain the undisclosed information and to obtain the broken femoral stem component. (Id. ¶ 15.) Kaleida was ordered to respond to certain of Plaintiff's requests, but was unable to locate any paperwork regarding the prosthetic components that had been implanted in Plaintiff, or the femoral stem component that was removed. (Id. ¶¶ 15-22.)
On the basis of these allegations, Plaintiff asserts claims against Kaleida for breach of warranty (the first cause of action) and spoliation of evidence ...