The opinion of the court was delivered by: JAMES B. MORAN
Plaintiff Michael McQuerry brings this action under the Medical Devices Amendments (MDA) to the Food, Drug and Cosmetic Act (FDCA), 21 U.S.C. §§ 301-395, against American Medical Systems, Inc. (AMS), Charles Feinstein, and Watertower Surgicenter Corporation. McQuerry seeks to recover damages he suffered as a result of the failure of a penile implant manufactured by AMS and implanted by Feinstein, who at the time was employed by Watertower Surgicenter. McQuerry initially brought his case in the Circuit Court of Cook County. On April 7, 1995, AMS filed a notice of removal. McQuerry now asks us to remand the case to state court. For the reasons set forth below, his motion is granted.
On January 13, 1994, Feinstein performed penile implant surgery on McQuerry at the Watertower Surgicenter. Feinstein inserted into McQuerry a "700 Ultrex Inflatable Penile Prosthesis," an AMS product. The implant apparently malfunctioned, as McQuerry alleges that AMS' defective design of the device and failure to warn of potential dangers disfigured him, forced him to undergo additional medical treatment, caused him pain and suffering, and prevented him from engaging in his usual activities. He also alleges that he will suffer similar damages in the future because his medical problems have not yet been resolved. McQuerry claims that AMS is liable for all these damages on strict liability and negligence theories.
McQuerry began his case in state court. On April 7, 1995, AMS filed a notice of removal, arguing that "because Congress has preempted state tort law remedies regarding the safety or effectiveness of the Class III device in this case, defendant AMS has the right to remove the action" (Notice of Removal at 2). On May 8, 1995, McQuerry filed a motion asking us to remand the case to the Circuit Court of Cook County.
Ordinarily, a defendant may remove a state court case to federal court only if it could have been brought in federal court in the first place, that is, if a federal court would have original jurisdiction over the case. 28 U.S.C. § 1441(a); Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 96 L. Ed. 2d 318, 107 S. Ct. 2425 (1987). AMS does not contend that the requirements for diversity jurisdiction are satisfied here, so the only question is whether we have federal question jurisdiction. That determination is governed by the "well-pleaded complaint rule," which holds that "federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar, 482 U.S. at 392.
McQuerry's complaint does not raise a federal question on its face. But AMS argues that a corollary to the well-pleaded complaint rule, the "complete preemption" doctrine, provides the basis for removal. The doctrine holds that when "the pre-emptive force of a statute is so 'extraordinary'" that it completely preempts state law, "any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law." Id. at 393 (quoting Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 65, 95 L. Ed. 2d 55, 107 S. Ct. 1542 (1987)). When the complete preemption doctrine applies, it "'converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.'" Id. (quoting Metropolitan Life, 481 U.S. at 65). AMS maintains that because "the negligence and strict liability claims asserted against AMS are completely preempted by the MDA," removal is proper (Mem. in Opp. to Mot. for Remand at 2). We disagree.
Supreme Court precedent on the issue of "jurisdiction by preemption" admits of two readings. Metropolitan Life defined the question as "whether these state common law claims are not only pre-empted by ERISA, but also displaced by ERISA's civil enforcement provision ... to the extent that complaints filed in state courts purporting to plead such state common law causes of action are removable to federal court." 481 U.S. at 60. This language suggests that removal is appropriate only if federal law not only preempts the state claim but also replaces it with a federal remedy.
By contrast, Franchise Tax Board of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 77 L. Ed. 2d 420, 103 S. Ct. 2841 (1983), and Caterpillar both focused only on whether "an area of state law has been completely pre-empted." Caterpillar, 482 U.S. at 393; see also Franchise Tax Board, 463 U.S. at 24. This approach implies that "removal may turn on the character of federal preemption rather than on whether federal law provides replacements for preempted state claims." Robert A. Ragazzo, Reconsidering the Artful Pleading Doctrine, 44 Hastings L.J. 273, 288 (1993). One commentator has called the two approaches the replacement model and the complete preemption model. Ragazzo, supra, at 278-303 (1993).
We believe that the replacement model is the better approach. Both of the statutes under which the Supreme Court has upheld removal on jurisdiction by preemption grounds, ERISA and the LMRA, create federal causes of action to replace the state causes of action they preempt. And Metropolitan Life, the most recent decision to uphold removal based on preemption, followed the replacement model. Moreover, despite the language cited above, the holdings of Franchise Tax Board and Caterpillar are compatible with the replacement approach. In Franchise Tax Board, the Court ordered the case remanded to state court because it found that the plaintiff had no cause of action under ERISA. 463 U.S. at 25. The Court did not inquire into the "completeness" of ERISA preemption; it asked whether the plaintiff's well-pleaded complaint stated a claim under ERISA itself or turned on a question of federal law. Id. at 22-28. More troubling is Caterpillar's statement that "once an area of state law is completely pre-empted, any claim purportedly based on that ... law is considered, from its inception, a federal claim, and therefore arises under federal law." 482 U.S. at 393. But the Caterpillar Court cited Franchise Tax Board as authority and, given its unanimous decision in Metropolitan Life two months before, the Court most likely was merely speaking in loose terms rather than adopting a new approach. We conclude, therefore, that the Supreme Court favors the replacement model. See Corporate Travel Consultants, Inc. v. United Airlines, Inc., 799 F. Supp. 58, 61 (N.D.Ill. 1992) ("The Supreme Court has decided that [removal on preemption grounds] requires both federal preemption of state law and the Congressional intent to make the plaintiff's cause of action removable to federal court."); In re Air Disaster, 819 F. Supp. 1352, 1365 (E.D.Mich. 1993) (under Supreme Court precedent, "federal preemption [is] not, in itself, enough to render the plaintiff's state law claims removable"; "there [has] to be some evidence of congressional intent to make such claims removable").
Even if the Supreme Court had not apparently endorsed the replacement approach, we would opt to follow it because it is more faithful than the complete preemption approach to the logic that supports the jurisdiction by preemption doctrine in the first place. The doctrine's purpose is to prevent plaintiffs from avoiding removal by pleading their claims under state law when the relevant state law is preempted and federal law is the only avenue for relief. In such situations plaintiffs are in effect denying defendants the right to remove granted by § 1441, even though their complaints are necessarily based on federal law because the state law they invoke has been preempted. The replacement approach solves this problem neatly by permitting defendants to remove when there is in fact a potential federal question that would support federal jurisdiction. The complete preemption approach goes too far: it permits removal even in cases where the plaintiff can state no federal claim. The complaints in such cases do not even arguably raise a federal question and therefore are inappropriate for removal. They do not rest upon the concept that a plaintiff's claims necessarily arise from federal law, but upon the concept that federal law proscribes any relief, state or federal. That, however, is a defense to the state law claims that can be raised in state court, not a basis for removal.
Because the MDA does not create a private right of action, Richman v. W.L. Gore & Associates, Inc., 881 F. Supp. 895, 902-03 (S.D.N.Y. 1995),
it does not replace state law with any federal remedy (at least not one that is available to individual plaintiffs).
Therefore McQuerry's case cannot "arise under" the MDA, as the removal statute requires when jurisdiction is premised upon the existence of a federal question.
By contrast, the MDA's preemption provision states only that "no State ... may establish or continue in effect with respect to a [medical device] any requirement (1) which is different from, or in addition to, any requirement applicable under [the FDCA] to the device, and (2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under [the FDCA]." 21 U.S.C. § 360k(a). In the words of the Seventh Circuit, "[this] is not the kind of blanket preemption that we find in ERISA." Slater v. Optical Radiation Corp., 961 F.2d 1330, 1334 (7th Cir.), cert. denied, 121 L. Ed. 2d 246, 113 S. Ct. 327 (1992). Therefore, the MDA is not a statute that preempts state law so completely as to render state claims federal in nature. Green v. Telectronics Pacing Systems, Inc., 1995 U.S. Dist. LEXIS 4695, No. 95 C 1977, 1995 WL 215045, at *2 (N.D.Ill. Apr. 10, 1995) ("No provision even remotely comparable to the one relied on in Avco [ Corp. v. Aero Lodge No. 735, 390 U.S. 557, 20 L. Ed. 2d 126, 88 S. Ct. 1235 (1968),] (as to LMRA § 301) and in Metropolitan Life (as to ERISA) exists in the Medical Device Amendments. It must be concluded on the strength of Metropolitan Life that Telectronics' preemption argument ... is nothing more than a potential federal defense and is not a fount of removal jurisdiction."); Goldstein v. W.L. Gore & Associates, Inc., 887 F. Supp. 168, 171 (N.D.Ill. 1995) (remanding ...