The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
On August 26, 2008, United States Magistrate Judge David G. Bernthal filed a Report and Recommendation (#7) in this case. On September 15, 2008, Defendants Davol, Inc., and C.R. Bard, Inc., (hereinafter collectively known as "Bard"), filed their Objection to the Magistrate's Report and Recommendation (#11). This court has conducted a careful and thorough de novo review of Judge Bernthal's reasoning and Bard's Objections. Following this review, and for the reasons that follow, this court disagrees with Judge Bernthal's conclusion that the case should be remanded to state court. The court also GRANTS Defendants' Lo and Rohrscheib's Motions to Dismiss Counts 2 and 3 of the Amended Complaint (#17), (#9) and DENIES Plaintiff's Motion for Extension of Time to File Medical Certificate (#19).
Plaintiff filed her original state court complaint in the Circuit Court of the Sixth Judicial Circuit, Champaign County, on April 2, 2008. In her complaint, Plaintiff named Bard and Davol as Defendants and Dr. Adolf Lo and Dr. Sidney Rohrscheib as Respondents in Discovery. Plaintiff alleged a products liability complaint against Bard for personal injuries arising out of surgical mesh patches that they manufactured. Plaintiff alleged that Davol, a wholly owned subsidiary of Bard, and Bard manufactured, designed, promoted and sold the patches to be surgically implanted in patients throughout the United States. Bard sold the patches through Davol. The patches are designed to fix the hernia by placing the patch on the inside of the abdominal wall and therefore pressuring the body to help hold the patch in place over the hernia defect. The patches were implanted into Plaintiff during a surgery on May 4, 2006, but the procedure failed and another surgery had to be conducted on August 24, 2006. At the August 24, 2006, surgery it was discovered that one of the patches had adhered to the Plaintiff's bowel. Two more patches were implemented. As a result of the unreasonably dangerous condition of the patch in question, Plaintiff alleges, she was injured and sustained damages by having to undergo the August 24, 2006 surgery and has suffered further complications. Drs. Lo and Rohrscheib were named as Respondents in Discovery in this original complaint, as they had performed the May 4, 2006, and August 24, 2006 surgeries, respectively.
On April 4, 2008, Bard filed its Notice of Removal in this court. In its Notice of Removal, Bard stated that this court had diversity jurisdiction pursuant to 28 U.S.C. § 1332(a) because the amount in controversy exceeded the sum of $75,000 and there was complete diversity of citizenship between the parties. Bard had a good faith belief that the amount in controversy exceeded $75,000, as injuries alleged were severe and other plaintiffs had brought similar product liability actions against Bard in federal court, thus specifically pleading amounts in controversy over $75,000. Further, Plaintiff was a citizen of Illinois and Defendants Bard and Davol and were citizens of Delaware/Rhode Island and New Jersey, respectively. The case in this court was assigned the case number "08-CV-2084." Bard filed its Answer and Affirmative Defenses on the same day, On April 23, 2008, Plaintiff filed her Motion to Remand Pursuant to 28 U.S.C. § 1447, or in the Alternative, for Leave to Amend Complaint Pursuant to Rule 15 of the Federal Rules of Civil Procedure. In the Motion, Plaintiff argued that Drs. Lo and Rohrscheib, as Respondents in Discovery, were considered parties under the Illinois Code of Civil Procedure, and thus diversity was destroyed, necessitating a remand to state court. In the alternative, as the Federal Rules of Civil Procedure do not have an analogous provision to the Illinois code treating Respondents in Discovery as parties, Plaintiff asked the court to allow her leave to amend her complaint to add the doctors. Plaintiff attached the Amended Complaint with its Motion to Remand. The Amended Complaint reincorporated the same claim against Bard, but added separate counts against Drs. Lo and Rohrscheib. Count 2 alleged professional negligence against Dr. Lo, who performed the May 4, 2006 surgery, claiming that he was guilty of professional negligence and in the alternative to Count 1 (against Bard) that Lo's professional negligence caused Plaintiff's injury and necessitated the August 24, 2006 surgery. Count 3 alleged professional negligence against Dr. Rohrscheib, who performed the August 24, 2006 surgery, and in the alternative to Count 1, caused Plaintiff to suffer injury to her right nerve. Plaintiff did not file, and has not filed at any time during the course of this litigation nor by affidavit asked for extension of time to file, a physician's certificate of merit as required under 735 Ill. Comp. Stat. 5/2-622 (West 2008).
On May 28, 2008, Magistrate Judge Bernthal issued an Order granting Plaintiff leave to file the Amended Complaint. On May 30, 2008, this court, having accepted and reviewed the Amended Complaint, entered an Order remanding the cause to the state court since the addition of Drs. Lo and Rohrscheib had destroyed diversity and the matter thus could not remain in federal court. Federal case No. 08-CV-2084 was over.
On June 27, 2008, the present federal case commenced when Bard filed another Notice of Removal (#1), removing the case from state court and back to federal court. In this Notice (#1), Bard reiterated its earlier claims about the amount in controversy exceeding $75,000 and Bard and Doval being diverse from Plaintiff. Bard also argued that Defendants Lo and Rohrscheib were not properly joined as parties, but rather were added simply to defeat diversity jurisdiction. Bard pointed out that Plaintiff had not filed a Section 2-622 affidavit, which was necessary under Illinois law to convert Lo and Rohrscheib from Respondents in Discovery to defendants. Bard argued that this failure to comply with Illinois state law at a time when Plaintiff was seeking to have the cause remanded to state court indicated the lack of a good faith intention to pursue a real claim against the doctors. Bard also advanced an argument that the doctors had been misjoined and should be severed from the action against Bard because the Plaintiff's claims against the doctors do not arise from the same transaction or occurrence as the Plaintiff's claims against Bard. The case was assigned the case number "08-CV-2142."
On July 7, 2008, Plaintiff filed her Motion to Remand (#4). Plaintiff argued that Bard's second removal was without merit and that as there was specific negligence, there was a good faith basis for joining the doctors as defendants. Plaintiff also referred to Bard's misjoinder argument as "specious." On July 21, 2008, Bard filed its Opposition to Plaintiff's Motion to Remand (#5). Here, Bard argued that (1) the products liability claim against Bard and the negligence claims against the doctors were fraudulently joined and (2) even if Plaintiff stated valid causes of action against the doctors, joining them with the claims against Bard would be improper. Bard essentially repeated the arguments against removal that it had made in its Notice of Removal (#1).
On August 26, 2008, Magistrate Judge Bernthal issued his Report and Recommendation (#7) in the instant case. Judge Bernthal recommended that Motion to Remand (#4) should be granted and the matter returned to state court. In addressing Bard's arguments, the Report notes that, as to the fraudulent joinder argument, Plaintiff failed to cite a single case or statute in support of her position. However, where ordinarily failure to support an argument with citation to pertinent authority would constitute a waiver of that point, the Report was compelled to address the issue because it concerned subject matter jurisdiction. Judge Bernthal noted that the removing party bears the burden of proving fraudulent joinder and must show that, after resolving all issues of fact and law in favor of the plaintiff, that the plaintiff cannot establish a cause of action against the nondiverse defendant. To decide, it comes down to one question: Is there any reasonable possibility that a state court could rule against a nondiverse defendant? If yes, joinder is not fraudulent. Judge Bernthal determined that the only reason Plaintiff failed to state a claim was the procedural defect of failing to attach a certificate of merit from a licensed physician to her complaint. Failing to state the claim was not the same as having "no probability of success." Based on the present allegations in her complaint, Judge Bernthal could not say that "Plaintiff ha[d] absolutely no possibility of success in her medical malpractice complaint against the doctors." Judge Bernthal acknowledged situations where no possibility of success defeated remand included where the statute of limitations had run or where state law did not impose liability on the parties at issue. Here, however, since the physician's certificate was a procedural defect which could be cured, fraudulent joinder had not occurred.
Judge Bernthal also rejected Bard's claim of procedural misjoinder, declining to apply the doctrine of fraudulent misjoinder advocated by Bard and first used in Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353 (11th Cir. 1996), as the doctrine had not yet been considered by the Seventh Circuit and had been rejected by the Southern District of Illinois in Robinson v. Ortho-McNeill Pharm., Inc., 533 F.Supp.2d 838 (S.D. Ill. 2008). Bard filed its Objection to Magistrate's Report and Recommendation (#11) on September 15, 2008.
Defendant Dr. Rohrscheib filed a Motion to Dismiss Count 3 of Amended Complaint (#9) on September 10, 2008. Defendant Dr. Lo filed a Motion to Dismiss Count 2 of Amended Complaint (#17) on September 19, 2008. In their Motions to Dismiss the doctors adopt the arguments put forth by Bard about fraudulent joinder, and argue that since the statute of limitations has run, a physician's certificate of merit can not now be attached to the complaint and the complaint must fail in state court, thus the case against them must be dismissed. Plaintiff filed her Response to the Motion to Dismiss (#18) on September 29, 2008, arguing that because of Bard's removal of the case, she did not have time to depose Drs. Lo and Rohrscheib. Had the case remained in state court, Plaintiff argues, she would have had six months in which to depose the doctors. Plaintiff asked for 90 days from the time this court determines who has ultimate jurisdiction to file the physician's certificate. Plaintiff filed a Motion (#19) to that effect on the same day as her Response. Plaintiff also claimed in her Response that she had consulted with a physician who had reviewed the file as to Dr. Rohrscheib and advised that there was a meritorious claim against the doctor, but refused to sign the report in that he had served as a expert witness on numerous occasions on behalf of doctors insured by the same insurer as Rohrscheib. Plaintiff claims that she is in the process of obtaining another reviewing physician and that there are legitimate reasons for the delay in obtaining a certificate.
This court agrees with Bard that there is no possible way for Plaintiff's claims against the doctors to succeed in state court as they are deficient for lacking a physician's certificate as required by 735 Ill. Comp. Stat. 5/2-622 and the statute of limitations has run on filing the certificate. Therefore, this court cannot accept the recommendation to grant Plaintiff's Motion to Remand (#4) to state court. Since we have decided this case based on other grounds, we need not address the issue of procedural misjoinder. Accordingly, because the Motions to Dismiss Counts 2 and 3 filed by the doctors are so intertwined with the 2-622 certificate issue, we will GRANT the Motions to Dismiss (#9), (#17) and DENY Plaintiff's Motion for Extension of Time to File a Physician's Certificate (#19).
I. REPORT AND RECOMMENDATION