Allergan, Apollo Endosurgery say plaintiffs 'grafted' claims to thwart diversity in LAP-BAND case

By Sam Knef | Aug 16, 2018

ST. LOUIS – Defendants Allergan USA Inc. and Apollo Endosurgery US Inc. have filed to remove a medical malpractice and medical device products liability case to federal court.

The defendants filed the notice Aug. 6 to remove the case from 21st Judicial District in St. Louis to the U.S. District Court for the Eastern District of Missouri.

Represented by attorneys at Shook Hardy Bacon in Kansas City, Allergan and Apollo argue that a doctrine of misjoinder prevents plaintiffs from defeating federal diversity jurisdiction simply by naming non-diverse defendants, "even if there is a colorable claim against such non-diverse defendants."

Plaintiffs Elizabeth Crocker, Stacy Hackman and Amy Roberts claim they had surgery implanting a product known as LAP-BAND in 2002, 2007 and 2010, and sued in state court in May over claims including erosion, gastric leakage, sepsis, abdominal infection, abdominal bloating and pain, anxiety and depression.

The removal notice filed Aug. 6 states that claims made by Hackman in the amended petition included allegations against doctors and treatment facilities. The defendants allege Hackman's counts "have nothing to do with products liability and were grafted onto the (first amended petition) to thwart diversity."

The defendants say the case was originally initiated solely by Crocker in 2017 alleging products liability-type claims.

"At that point, there was complete diversity," the notice states. "Plaintiff Crocker dismissed the next day without service. More than a year later, plaintiff Crocker brought suit again against defendants with two additional plaintiffs, Roberts and Hackman, asserting similar products liability claims. 

"If Allergan and Apollo remained the only defendants, there would be complete diversity and the case would be removable to federal court. However, plaintiffs grafted medical malpractice claims of plaintiff Hackman only against the non-diverse health care defendants."

They further argue that when a medical malpractice case with non-diverse defendants "is grafted onto a products liability case with diversity, such conduct is ‘egregious’ and constitutes fraudulent misjoinder."

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