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Case MDL No.
1909 Document 244-3 Filed 12/23/11 Page 1 of 49
Exhibit J
Plaintiffs Opposition to Defendant University of Chicago Medical Centers Motion to Dismiss
Case: 1:11-cv-08504 Document #: 1-4 Filed: 11/29/11 Page 32 Page PageID #:232 Case MDL No. 1909 Document 244-3 Filed 12/23/11 of 86 2 of 49
Case MDL No. 1909 Document 244-3 Filed 12/23/11 Page 8 of 49
Exhibit K
Nov. 17, 2011 Dismissal Order
Case: Case MDL No. Document #: 1-4 244-3 11/29/11 Page 85Page 10 of 49 #:285 1:11-cv-08504 1909 Document Filed: Filed 12/23/11 of 86 PageID
Case: Case MDL No. Document #: 1-4 244-3 11/29/11 Page 86Page 11 of 49 #:286 1:11-cv-08504 1909 Document Filed: Filed 12/23/11 of 86 PageID
Exhibit L
Motion to Vacate or Modify Nov. 17, 2011 Order
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION PAUL YOUNG, Individually and as Special Administrator for the Estate of KENYETTA MARKS, ) ) ) ) Plaintiffs, ) ) vs. ) ) GENERAL ELECTRIC COMPANY; ) GE HEALTHCARE a/k/a GENERAL ) ELECTRIC COMPANY d/b/a GE ) HEALTHCARE; GE HEALTHCARE, INC. ) d/b/a GE HEALTHCARE MEDICAL ) DIAGNOSTICS; GE HEALTHCARE AS; ) and UNIVERISTY OF CHICAGO ) MEDICAL CENTER, ) ) Defendants. ) Case No. 11-L-6157
JURY TRIAL DEMANDED
PLAINTIFFS MOTION TO VACATE OR IN THE ALTERNATIVE MODIFY THE NOVEMBER 17, 2011 ORDER DISMISSING DEFENDANT UNIVERSITY OF CHICAGO MEDICAL CENTER Plaintiff Paul Young, Individually and as Special Administrator for the Estate of Kenyetta Marks, by and through his attorneys, TORHOERMAN LAW LLC and JOHNSON BECKER PLLC, files this, his Motion to Vacate or in the Alternative Modify the Courts November 17, 2011 Order dismissing Defendant University of Chicago Medical Center. Plaintiff respectfully submits that the Court reconsider its Order based on the following points: Point 1: The Court erred by holding that Plaintiffs claims against Defendant University of Chicago Medical Center are barred by 75 ILCS 5/13-212. Point 2: The Court erred by making its November 17, 2011 Order final pursuant to Illinois Supreme Court Rule 304(a).
Point 1: 1.
The Court erred by holding that Plaintiffs claims against Defendant University of Chicago Medical Center are barred by 75 ILCS 5/13-212 The Court erred by holding that Plaintiffs claims against the University of
Chicago Medical Center are barred by the four-year statute of repose because Defendants negligence was a continuous and unbroken course of negligent treatment under the construction of the statute of repose announced in Cunningham v. Huffman, 154 Ill. 2d 398 (1993). Specifically, Plaintiff respectfully submits that this Court erred by concluding Defendants negligence was not medical treatment, and that it would be a ministerial function of the hospital not requiring medical expertise. On the contrary, Defendants failed to track, warn and perform diagnostic procedures on dialysis patients like Decedent, who were at risk of developing NSF when exposed to Omniscan. Further, even if the continuous course of treatment doctrine does not apply, there is a fact issue on when the statute of repose began to run on Plaintiffs claim. 2. The authorities cited by University of Chicago and relied upon by the
Court do not indicate Defendants negligent acts and omissions were not medical treatment or exercises of medical expertise under Cunningham. Ferrara v. Wall, 323 Ill. App. 3d 751 (2nd Dist. 2001); Turner v. Nama, 294 Ill. App. 3d 19 (1st Dist. 1997). 3. The omission in Turner was the physicians failure to notify her patient
that her pap smear indicated a class four carcinoma in situ. Turner, 294 Ill. App. 3d at 22. The Court of Appeals reasoned that the ongoing course of negligent medical treatment doctrine did not apply because the failure to notify was not medical treatment since the decision to send the results requires only ordinary judgment--not medical judgment. Turner, 294 Ill. App. 3d at 32. Ferrara v. Wall, which involved a physician who failed to
notify his patient that he had an abnormally high PSA level, followed Turner. Ferrara, 323 Ill. App.3d at 753, 757. 4. The omissions by the University of Chicago Medical Center were far
different from a simple decision to send test results, which required only ordinary judgment. The University of Chicagos omissions required medical judgment and expertise: an analysis of current medical research; a review of individual patients medical histories to see if they were at risk; and performance of diagnostic procedures by medical personnel indicated for diagnosis of NSF, i.e., biopsies of specific depths, analyses of the biopsies by a dermatopathologist, and correlation of patients biopsy results with their clinical presentation. Unlike the secretarial functions at issue in Turner and Ferrara, the above procedures and analyses could only have been performed by healthcare professionals. Turner and Ferrara therefore do not support barring Plaintiff from relying on the ongoing course of negligent medical treatment doctrine. 5. Further, even assuming that the ongoing course of negligent medical
treatment doctrine does not apply, Defendants statute-of-repose defense cannot be resolved on a motion to dismiss because it turns on a fact issue: when a duty arose on the part of University of Chicago Medical Center to track, warn and perform NSF diagnostic procedures on patients like Decedent Kenyetta Marks. Significantly, the Turner decision did not hold that the physician had no duty to notify her patient of the pap smear results, only that the failure to do so was not part of a continuous course of treatment. Turner, 294 Ill. App. 3d at 32. The Court of Appeals therefore considered when the statute of repose was triggered, and concluded that it began running two months after the physician
received the test results, the date by which the physician should have notified the patient. Turner, 294 Ill. App. 3d at 32-33. 6. Here, applying the reasoning used in Turner, the four-year statute of
repose would have begun to run at the point when the University of Chicago knew of the danger posed by using Omniscan on its patients with severe renal impairment, but failed to track, warn and diagnose affected patients. But when the University of Chicago knew of this danger is a fact issue. It was therefore inappropriate to resolve its statute-ofrepose defense on a motion to dismiss. 7. For the foregoing reasons, Plaintiff respectfully requests that the Court
vacate its November 17, 2011 Order dismissing the University of Chicago Medical Center. Point 2: 8. The Court erred by making its November 17, 2011 Order final pursuant to Illinois Supreme Court Rule 304(a) In the alternative, if the Court chooses not to vacate in the entirety its
November 17, 2011 Order, Plaintiff respectfully requests that the Court modify its Order to omit the Illinois Supreme Court Rule 304(a) language that makes the Order immediately appealable. 9. Although a Circuit Court has the discretion to include 304(a) language to
make an order immediately appealable, as the Supreme Court has observed, the better general rule is that appeals should be unitary. John G. Phillips & Assocs. v. Brown, 197 Ill.2d 337, 345 (2001). Illinois courts consider the following factors in determining whether use of Rule 304(a) language is appropriate: (1) the relationship between the adjudicated and unadjudicated claims;
(2) the possibility that the need for review might or might not be mooted by future developments in the district court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim which could result in set-off against the judgment sought to be made final; and (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like. In re Estate of Stark, 374 Ill. App. 3d 516, 524 (4th Dist. 2007) (quoting Geier v. Hamer Enterprises, Inc., 226 Ill. App. 3d 372, 383 (1992) (quoting Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360, 364 (3rd Cir. 1975))). 10. Factors one and five weigh against making the dismissal of the University
of Chicago Medical Center immediately appealable. Specifically, a significant number of fact witnesses are healthcare providers employed by the University of Chicago Medical Center, and the General Electric Defendants will insist on deposing them. If the University ceases to be a party to this litigation, obtaining necessary evidence will take longer, requiring the use of subpoenas. CONCLUSION AND REQUEST FOR RELIEF 11. For the foregoing reasons, Plaintiff respectfully requests that the Court
vacate its judgment dismissing Defendant University of Chicago Medical Center. In the alternative, if the Court is unwilling to vacate in its entirety its Order granting Defendants Motion to Dismiss, Plaintiff respectfully requests that the Court modify its November 17, 2011 Order to omit the language making the Order final and appealable pursuant to Illinois Supreme Court Rule 304(a).
Dated: December 19, 2011
Respectfully submitted, TorHoerman Law LLC Johnson Becker PLLC ___/s/____________________________ Tor A. Hoerman, #6229439 Eric Terry, #6282169 Jacob W. Plattenberg, #6297431 TorHoerman Law LLC 101 W. Vandalia, Suite 350 Edwardsville, IL 62025 Phone: (618) 656-4400 Fax: (618) 656-4401 thoerman@torhoermanlaw.com eterry@torhoermanlaw.com jplattenberger@torhoermanlaw.com and Michael K. Johnson, MN Bar #258696 Johnson Becker PLLC 33 South Sixth Street, Suite 4530 Minneapolis, MN 55402 Phone: (612) 333-4662 Fax: (612) 339-8168 mjohnson@johnsonbecker.com
CERTIFICATE OF SERVICE The undersigned certify under penalty as provided by law pursuant to 735 ILCS 511-109, that on December 19, 2011, I served this PLAINTIFFS MOTION TO VACATE OR IN THE ALTERNATIVE MODIFY THE NOVEMBER 17, 2011 ORDER DISMISSINGDEFENDANT UNIVERSITY OF CHICAGO MEDICAL CENTER by depositing a copy of same in the United States Mail properly addressed with sufficient postage affixed to the attorneys listed on the below Service List.
__/s/___________________________________ TO: SIDLEY AUSTIN LLP Sherry A. Knutson, Esq. One South Dearborn Street Chicago, IL 60603 Attorneys for Defendants General Electric Company; GE Healthcare a/k/a General Electric Company d/b/a GE Healthcare; GE Healthcare, Inc. d/b/a GE Healthcare Medical Diagnostics; GE Healthcare AS SWANSON, MARTIN & BELL, LLP Patricia S. Kocour 330 North Wabash, Suite 3300 Chicago, IL 60611 Attorneys for Defendant University of Chicago Medical Center
Exhibit M
Notice of Removal
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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
PAUL YOUNG, Individually and as Special Administrator for the Estate of KENYETTA MARKS, Plaintiffs, v. GENERAL ELECTRIC COMPANY; GE HEALTHCARE a/k/a GENERAL ELECTRIC COMPANY d/b/a GE HEALTHCARE; GE HEALTHCARE INC. d/b/a GE HEALTHCARE MEDICAL DIAGNOSTICS; GE HEALTHCARE AS; and UNIVERSITY OF CHICAGO MEDICAL CENTER, Defendants.
Case No. _______________
Removed from the Circuit Court of Cook County, Illinois, Case No. 11-L-6157
JURY TRIAL DEMANDED
Pending Transfer to MDL 1909 (In re Gadolinium Based Contrast Dyes Products Liability Litigation)
NOTICE OF REMOVAL In accordance with 28 U.S.C. 1332, 1441, and 1446, Defendants GENERAL ELECTRIC COMPANY and GE HEALTHCARE INC. (incorrectly sued as GE Healthcare and GE Healthcare, Inc.) (collectively, the GE Defendants) hereby remove this civil action from the Circuit Court of Cook County, Illinois, to the United States District Court for the Northern District of Illinois, Eastern Division. I. INTRODUCTION A. The Multidistrict Litigation Proceedings 1. This is one of a number of pharmaceutical product liability actions that
allege personal injuries or death caused by Omniscan, a product manufactured and/or distributed 1
by the GE Defendants. Specifically, plaintiffs claim that the administration of gadolinium-based contrast agents (GBCAs), including Omniscan, to patients with renal insufficiency undergoing magnetic resonance imaging (MRI) procedures causes nephrogenic systemic fibrosis (NSF). 2. The Judicial Panel on Multidistrict Litigation (JPML) has consolidated
pretrial proceedings for claims involving Omniscan (gadodiamide) and other GBCAs pursuant to 28 U.S.C. 1407 in the Northern District of Ohio under MDL No. 1909. A true and correct copy of the JPMLs Transfer Order is attached hereto as Exhibit A. See also In re Gadolinium Based Contrast Dyes Prods. Liab. Litig., 536 F. Supp. 2d 1380 (J.P.M.L. 2008). Judge Dan A. Polster was assigned to preside over the multidistrict litigation (MDL). Because the plaintiff alleges personal injuries from Omniscan, this case is subject to transfer to that court as a tagalong action. Id. B. The State Court Action 3. On or about June 14, 2011, Kenyetta Marks filed a civil action against the
GE Defendants and the University of Chicago Medical Center in the Circuit Court of Cook County, Illinois, County Department, Law Division, styled Kenyetta Marks v. General Electric Company, et al. (No. 11-L-6157) (the State Court Action). Copies of the docket and all papers filed in the State Court Action are attached hereto as Exhibit B. Among other things, Ms. Markss complaint alleged that she developed NSF following the administration of Omniscan in connection with MRI procedures that she underwent at the University of Chicago Medical Center on or around March 8, 2006, September 8, 2006, and September 28, 2006. Compl. 2829. 4. Ms. Marks passed away on August 21, 2011. On September 22, 2011,
counsel filed an amended complaint on behalf of Ms. Markss husband, Paul Young. The action
is now styled Paul Young, Individually and as Special Administrator for the Estate of Kenyetta Marks v. General Electric Company, et al. (No. 11-L-6157). The amended complaint alleges wrongful death, survival, and funeral and burial expenses under theories of strict liability (design and manufacturing) and negligence against the GE Defendants related to Ms. Markss alleged development of NSF following administration of Omniscan. Am. Compl. 31-114. 5. Although the only real dispute in this action is between the plaintiff and
the GE Defendants, the plaintiff also named the University of Chicago Medical Center, the facility at which Ms. Marks allegedly received Omniscan. Id. 115-232. The plaintiff purported to assert an institutional negligence theory of recovery against the University of Chicago Medical Center, alleging, inter alia, that it failed to use reasonable care by permitting Ms. Marks to receive Omniscan three times in 2006 when she suffered from renal insufficiency and that as a result she developed NSF. Id. 6. The University of Chicago Medical Centers citizenship initially prevented
removal of this case to federal court. See U.S.C. 1332, 1441(b). However, less than thirty days before initiating this removal, the GE Defendants received other paper that conclusively establishes that the plaintiffs claims against the University of Chicago Medical Center are timebarred under Illinois law and that the facility was fraudulently joined. See U.S.C. 1446(b) (permitting removal within 30 days of receipt by defendant of an other paper from which it may be ascertained that the case is removable). Specifically, Judge Deborah Mary Dooling of the Circuit Court of Cook County, Illinois, ordered dismissal of the University of Chicago Medical Center on November 18, 2011, finding that the statute of repose would require an action to have been filed by September 28, 2010, four years after Marks alleged injury
occurred. Dooling Order at 3.1 Because the plaintiff did not file this lawsuit until June 2011, the claims against the University of Chicago Medical Center are foreclosed, and the facility was fraudulently joined. Accordingly, the University of Chicago Medical Centers citizenship may be disregarded when determining federal subject matter jurisdiction. 7. This action is one in which this Court has original subject matter
jurisdiction under the provisions of 28 U.S.C. 1332, and is one which may be removed to this Court pursuant to the provisions of 28 U.S.C. 1441(a) because, excluding the fraudulently joined defendant, it is a civil action between citizens of different states, and the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs. II. REMOVAL IS PROPER BECAUSE THIS COURT HAS SUBJECT MATTER JURISDICTION PURSUANT TO 28 U.S.C. 1332 AND 1441 A. Complete Diversity of Citizenship Exists 8. At the time this suit was filed, Ms. Marks was a citizen of Illinois for
purposes of diversity jurisdiction. Plaintiffs Fact Sheet (Exhibit C) B(4); Am. Compl. 2; 28 U.S.C. 1332(c)(2). 9. Defendant General Electric Company is, and has been at all relevant
times, a corporation incorporated under the laws of the State of New York with its principal place of business at 3135 Easton Turnpike, Fairfield, Connecticut, 06828. Pursuant to 28 U.S.C. 1332, General Electric Company is a citizen of both New York and Connecticut. General Electric Company is the ultimate parent company of GE Healthcare Inc.
Judge Dooling determined that the four-year statute of repose began to run from the date of the last administration of Omniscan to plaintiff at the University of Chicago Medical Center, which occurred on September 28, 2006, which was also alleged to have been the date of last treatment of Ms. Marks by that defendant. 4
10.
GE Healthcare Inc. is, and has been at all relevant times, a corporation
incorporated under the laws of the State of Delaware with its principal place of business at 101 Carnegie Center, Princeton, New Jersey, 08540. Pursuant to 28 U.S.C. 1332, GE Healthcare Inc. is a citizen of both Delaware and New Jersey. GE Healthcare Inc. distributes, sells and markets Omniscan, the GBCA at issue, in the United States in accordance with FDA rules and regulations. General Electric Company is the ultimate parent company of GE Healthcare Inc. 11. The University of Chicago Medical Center is located in Illinois. Am.
Compl. 10. Upon information and belief, it is a nonprofit corporation incorporated under the laws of the State of Illinois with its principal place of business at 5841 S. Maryland Avenue, Chicago, Illinois, 60637. Pursuant to 28 U.S.C. 1332, the University of Chicago Medical Center is a citizen of Illinois. However, the citizenship of the University of Chicago Medical Center should be disregarded because it was fraudulently joined in this action. A nondiverse defendant is deemed to be fraudulently joined when there is no reasonable possibility that the plaintiff could establish a cause of action against that party in state court. Hoosier Energy Rural Elec. Coop., Inc. v. Amoco Tax Leasing IV Corp., 34 F.3d 1310, 1314-15 (7th Cir. 1994); Gottlieb v. Westin Hotel Co., 990 F.2d 323, 327 (7th Cir. 1993). As demonstrated below (and as Judge Dooling determined), the plaintiff has no reasonable possibility of establishing a claim against the University of Chicago Medical Center under Illinois law in this action.
B.
The University of Chicago Medical Center Was Fraudulently Joined 12. Plaintiffs claims are governed by Illinois law. See Esser v. McIntyre, 661
N.E.2d 1138, 1141 (Ill. 1996) (applying the most significant relationship test for products liability claims); Edwardsville Nat. Bank & Trust Co. v. Marion Labs., Inc., 808 F.2d 648, 651 (7th Cir. 1987) (same as to products liability and medical malpractice claims). Under the law of Illinois, there is no reasonable possibility that plaintiff could succeed on any of his claims against the University of Chicago Medical Center and, as a result, it was fraudulently joined in this action. Illinois law precludes the plaintiff from establishing a claim against the University of Chicago Medical Center in state court because the plaintiff failed to file his medical malpractice claim against it within four years of the act or omission allegedly causing injury. The University of Chicago Medical Centers citizenship, therefore, may be disregarded and removal is proper. 1. 13. Fraudulent Joinder Standard The fraudulent joinder doctrine prevents plaintiffs from defeating diversity
jurisdiction simply by naming a defendant who shares a plaintiffs state citizenship. If there is no reasonable possibility of making a claim against them, such nondiverse defendants are not properly joined. 28 U.S.C. 1441(b) (providing for removal jurisdiction in diversity cases if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought) (emphasis added); Hoosier, 34 F.3d at 1314-15. See generally Wecker v. Natl Enameling & Stamping Co., 204 U.S. 176, 186 (1907) (The Federal courts should not sanction devices intended to prevent a removal to a Federal court where one has that right.); Legg v. Wyeth, 428 F.3d 1317, 1320 (11th Cir. 2005) (recognizing common strategy in pharmaceutical product liability actions of naming nondiverse local defendants against whom there is no legitimate claim in an effort to defeat pharmaceutical companys removal rights at
the unfair expense not only of [the company] but of many individuals and small enterprises that are being unfairly dragged into court simply to prevent adjudication of lawsuits in federal court) (citation omitted); McKinney v. Bd. of Md. Cmty. College, 955 F.2d 924, 928 (4th Cir. 1992) (Congress created the removal process to protect defendants. It did not extend such protection with one hand, and with the other give plaintiffs a bag of tricks to overcome it.); Gottlieb, 990 F.2d at 327 ([D]iversity jurisdiction cannot be destroyed by joinder of nondiverse parties if such joinder is fraudulent.). 14. Fraudulent joinder is established where the plaintiff has no reasonable
possibility of recovery against the nondiverse party in state court. Hoosier, 34 F.3d at 1315. In determining whether a defendant is fraudulently joined, the Seventh Circuit requires an analysis not only of whether a plaintiff has stated a claim, but whether the plaintiff has some reasonable basis for stating a claim. Schwartz v. State Farm Mut. Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir. 1999) (finding removal proper because of fraudulent joinder, notwithstanding the fact that the plaintiff had made a claim against the nondiverse defendant under the concept of notice pleading). 15. Where a plaintiffs claim against a nondiverse defendant is barred by a
statute of repose, he or she has no reasonable possibility of stating a claim and the nondiverse defendant is fraudulently joined. LeBlang Motors, Ltd. v. Subaru of America, Inc., 148 F.3d 680, 690 (7th Cir. 1998) (If the time to bring the cause of action had expired, then the district court was correct in dismissing such parties as fraudulently joined.); see also In re Diet Drugs Prods. Liab. Litig., 352 F. Supp. 2d 533 (E.D. Pa. 2004) (finding fraudulent joinder in diet drug case where plaintiffs claims against nondiverse prescribing physician were time-barred under
Kentucky law); In re Diet Drugs, MDL. No. 1203, 2004 U.S. Dist. LEXIS 26754 (E.D. Pa. June 30, 2004) (same, under Texas law). 16. When fraudulently joined defendants are dismissed, the action may be
properly removed to federal court. For example, in Kavalir v. Medtronic, this Court denied a plaintiffs motion to remand after the nondiverse hospital defendants moved successfully for dismissal. The Court found that there was no possibility the plaintiff could state a cause of action for breach of implied warranty against the hospitals and thus the fraudulently joined defendants could not defeat diversity. No. 07C0835, 2007 WL 1225358, at *1 (N.D. Ill. Apr. 19, 2007); see also Maglione v. Cottrel Inc., No. 00C2436, 2000 WL 988529, at *2 (N.D. Ill. July 18, 2000) (The Court concludes that [the codefendant] was fraudulently joined, thus permitting removal even if the dismissal of that defendant was involuntary.). 2. 17. The University of Chicago Medical Center Was Fraudulently Joined Because the plaintiff had no reasonable possibility of stating a claim
against it, the University of Chicago Medical Center was fraudulently joined. In the Amended Complaint, the plaintiff alleged medical malpractice claims against the University of Chicago Medical Center, including that it was negligent in failing to exercise reasonable care of Ms. Marks given her renal insufficiency, failing to create and implement appropriate policies for the use of GBCAs, failing to stay current on the medical literature related to Omniscan and its risks, and agreeing to an exclusive use contract with the GE Defendants and/or its predecessor companies at the expense of patient safety. Am. Compl. 115-232. 18. Medical malpractice claims against physicians and hospitals such as those
alleged by the plaintiff are subject to a four-year statute of repose: [N]o action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, 8
whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death. 735 ILCS 5/13-212 (emphasis added). The Illinois Supreme Court has held that the four-year repose period is triggered by the occurrence of the act or omission that caused the injury. Orlak v. Loyola University Health System, 885 N.E.2d 999 (2007). Such acts or omissions arise out of patient care involving medical expertise.2 See Dooling Order at 2-3. 19. The plaintiffs claims against the University of Chicago Medical Center
focus on the alleged administration of Omniscan to Ms. Marks on March 8, 2006, September 8, 2006, and September 28, 2006. Am. Compl. 28-29. As such, the last occurrence of medical treatment by the University of Chicago Medical Center allegedly leading to Ms. Markss claimed Omniscan-related injuries was on September 28, 2006. See Dooling Order at 3. 20. Under the statute of repose, claims against the University of Chicago
Medical Center were required to be filed within four years of the last claimed act or omission allegedly causing injury. 735 ILCS 5/13-212. Here, the statute of repose required that the plaintiff file any claims against the University of Chicago Medical Center related to the administration of Omniscan before September 28, 2010, four years after Ms. Markss last administration of Omniscan. This action, commenced on June 14, 2011, was thus untimely as to the plaintiffs medical malpractice claims.
2
Although the plaintiff asserted that the statute of repose did not bar his claims against the University of Chicago Medical Center because of an alleged continuous course of negligent medical treatment, Judge Dooling rejected this argument, concluding that the plaintiff did not allege that any medical treatment (i.e., an event requiring medical expertise) occurred after September 28, 2006. See Dooling Order at 2-3. 9
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21.
The plaintiff never had a reasonable possibility of recovery against the
University of Chicago Medical Center because he failed to file his action in accordance with the medical malpractice statute of repose. The University of Chicago Medical Center was thus fraudulently joined. See Hoosier Energy, 34 F.3d at 131; LeBlang, 148 F.3d at 690; Kavalir, 2007 WL 1225358, at *1. Accordingly, its citizenship is ignored for purposes of diversity jurisdiction. Id. Because there is complete diversity among the remaining parties, removal is proper. 28 U.S.C. 1332. C. The Amount in Controversy Exceeds $75,000 22. The Amended Complaint does not expressly state the amount in
controversy. Where, as here, a complaint does not allege a specific amount of damages, the Court may consider whether it is obvious from the face of the complaint that the plaintiffs damages exceeded the jurisdictional amount. McCoy v. Gen. Motors Corp., 226 F. Supp. 2d 939, 941 (N.D. Ill. 2002); accord Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1063 (11th Cir. 2010) (noting that the court found no case in any other circuit that purports to prohibit a district court from employing its judicial experience or common sense in discerning whether the allegations in a complaint facially establish the jurisdictionally required amount in controversy). 23. It is facially apparent from the Amended Complaint that the amount in
controversy exceeds $75,000, exclusive of interest and costs. The plaintiff claims that as a result of the administration of Omniscan, Ms. Marks developed NSF and suffered from severe, debilitating and worsening fibrotic changes and pulmonary and other systemic manifestations. See, e.g., Am. Compl. 34. Ultimately, according to the plaintiff, Ms. Marks died as a result of developing NSF/NFD. See, e.g., id. 35. Her survivors allege they have suffered pecuniary loss and damages . . . and have been deprived and will in the future be
10
deprived of her affection, society and companionship and that they incurred funeral, burial and medical expenses as a result of NSF caused by Omniscan. See, e.g., id. 37, 41. As such, there is a good faith basis to believe that the amount in controversy exceeds $75,000. See Rubel v. Pfizer, Inc., 361 F.3d 1016, 1020 (7th Cir. 2004) ([P]laintiffs cant prevent removal by refusing to concede that the controversy exceeds the jurisdictional minimum.); McCoy, 226 F. Supp. 2d at 941 ([C]ourts have routinely held that when plaintiffs allege serious, permanent injuries and significant medical expenses, it is obvious from the face of the complaint that the plaintiffs damages exceeded the jurisdictional amount.). 24. The GE Defendants need not confirm through discovery in the state court
action that the jurisdictional amount is satisfied. Indeed, a defendant who wishes to remove a case to federal court cannot wait for discovery responses that simply confirm what was obvious from the face of the complaint; in such cases, defendants are not insulated from a remand to state court. It is not the law that cases are not removable until there has been an absolute affirmation via discovery . . . that more than $75,000 [is] in issue. Fields v. Jay Henges Enters., Inc., No. 06-323-GPM, 2006 WL 1875457, *3 (S.D. Ill. June 30, 2006) (quoting McCoy, 226 F. Supp. 2d at 941); see also Roe, 613 F.3d at 1064 ([W]hen a district court can determine, relying on its judicial experience and common sense, that a claim satisfied the amount-in-controversy requirements, it need not give credence to a plaintiffs representation that the value of the claim is indeterminate. Otherwise, a defendant could wrongly be denied the removal to which it is entitled.); Century Assets Corp. v. Solow, 88 F. Supp. 2d 659, 661 (E.D. Tex. 2000) (holding that a complaint can facially state a claim over the jurisdictional amount when there are no numbers in the [complaint] at all, and that removal was untimely where it was apparent from
11
the complaint that an amount sufficient to satisfy the requirements of diversity jurisdiction was in controversy) (emphasis in original) (collecting cases). III. THE PROCEDURAL REQUIREMENTS FOR REMOVAL ARE SATISFIED 25. This notice of removal is timely. It is being filed within one year of the
commencement of this action in state court and within 30 days of November 18, 2011, the date the GE Defendants first received an other paper from which it could be ascertained that the case is one which had become removable within the meaning of 28 U.S.C. 1446(b). Specifically, on that date, the judge in the State Court Action dismissed the only nondiverse defendant in this matter, the University of Chicago Medical Center, finding that the plaintiffs claims against it were barred by the medical malpractice statute of repose. Dooling Order at 3. See Poulos v. Naas Foods, Inc., 959 F.2d 69, 72-73 (7th Cir. 1992) (holding that a state-court summary judgment order dismissing the nondiverse defendant was an order or other paper that permitted removal after the initial 30 days, where the nondiverse defendant was fraudulently joined). 26. Pursuant to 28 U.S.C. 1446(a), copies of all process, pleadings, orders,
and other papers filed in the State Court Action are attached hereto as Exhibit B. 27. The United States District Court for the Northern District of Illinois
embraces Cook County, the county in which the State Court Action is now pending. See 28 U.S.C. 116(c). Thus, this case is properly removed to this Court pursuant to 28 U.S.C. 1441(a). 28. notice of removal. No previous application has been made for the relief requested in this
12
29.
Pursuant to 28 U.S.C. 1446(d), a copy of this notice of removal is being
served on the plaintiffs counsel and a copy is being filed with the Clerk of the Circuit Court of Cook County, State of Illinois. 30. A filing fee of $350.00 has been tendered to the Clerk of the United States
District Court for the Northern District of Illinois. IV. CONCLUSION Defendants General Electric Company and GE Healthcare Inc. respectfully remove this action from the Circuit Court of Cook County, Illinois, to the United States District Court for the Northern District of Illinois, pursuant to 28 U.S.C. 1441 and 1446. Should any question arise as to this removal, the GE Defendants respectfully request an opportunity to provide briefing and an oral argument as to why removal is proper.
Dated: November 29, 2011 Respectfully Submitted, /s/ Sherry A. Knutson______________ Maja J. Eaton (ARDC No. 6188479) Sherry A. Knutson (ARDC No. 6276306) Sidley Austin LLP One South Dearborn Chicago, Illinois 60603 (312) 853-7000 meaton@sidley.com sknutson@sidley.com Attorneys for Defendants General Electric Company and GE Healthcare Inc.
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CERTIFICATE OF SERVICE I hereby certify that on November 29, 2011, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all attorneys of record, and sent via U.S. Mail, postage prepaid, to: TOR HOERMAN LAW LLC Tor A. Hoerman Eric Terry Jacob W. Plattenberger 101 W. Vandalia St., Ste. 350 Edwardsville, IL 62025 JOHNSON BECKER PLLC Michael K. Johnson, Esq. Timothy Becker, Esq. Rolf T. Fiebiger, Esq. 33 South Sixth Street, Suite 4530 Minneapolis, MN 55402 DECARLI LAW Debra I. DeCarli, Esq. Robert C. DeCarli, Esq. 50 California Street, Suite 1500 San Francisco, CA 94111 Attorneys for Plaintiff
_____/s/ Sherry A. Knutson______________ Sherry A. Knutson (ARDC No. 6276306)
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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
PAUL YOUNG, Individually and as Special Administrator for the Estate of KENYETTA MARKS, Plaintiffs, v.
Case No. _______________
JURY TRIAL DEMANDED GENERAL ELECTRIC COMPANY; GE HEALTHCARE a/k/a GENERAL ELECTRIC COMPANY d/b/a GE HEALTHCARE; GE HEALTHCARE INC. d/b/a GE HEALTHCARE MEDICAL DIAGNOSTICS; GE HEALTHCARE AS; and UNIVERSITY OF CHICAGO MEDICAL CENTER, Defendants.
EXHIBITS TO GE DEFENDANTS NOTICE OF REMOVAL
Exhibit A In re Gadolinium Contrast Dyes Products Liability Litigation, February 27, 2008 JMPL Transfer Order for MDL 1909 Exhibit B State Court Pleadings Exhibit C Plaintiffs Fact Sheet
Exhibit N
Letter Identifying Cause as Tag-Along Case
Case:Case MDL No. 1909 Document 244-3 Filed 12/23/11 2 of 2 PageID #:400 1:11-cv-08504 Document #: 15-1 Filed: Filed 11/29/11 Page 37of 149 Case MDL No. 1909 Document 235 12/12/11 Page Page 1 of
Exhibit O
Plaintiffs Motion for Remand
Case: 1:11-cv-08504 Document #: 9 244-3 12/06/11 Page 1 of 3 PageID49 Case MDL No. 1909 Document Filed: Filed 12/23/11 Page 39 of #:367
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS PAUL YOUNG, Individually and as Special Administrator for the Estate of KENYETTA MARKS, Plaintiffs, vs. GENERAL ELECTRIC COMPANY; GE HEALTHCARE a/k/a GENERAL ELECTRIC COMPANY d/b/a GE JURY TRIAL DEMANDED HEALTHCARE; GE HEALTHCARE, INC. d/b/a GE HEALTHCARE MEDICAL DIAGNOSTICS; GE HEALTHCARE AS; and UNIVERSITY OF CHICAGO MEDICAL CENTER, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
Case No. 1:11-CV-08504
Removed from the Circuit Court of Cook County, Illinois, Case No. 11-L-6157
JURY TRIAL DEMANDED
PLAINTIFFS MOTION FOR REMAND Plaintiff Paul Young, Individually and as Special Administrator for the Estate of Kenyetta Marks, moves for remand of this action to the Circuit Court of Cook County, State of Illinois, pursuant to 28 U.S.C. 1447(c). The Notice of Removal is not timely: removing on the basis of the purported fraudulent joinder of the Defendant University of Chicago Medical Center must have been done within thirty days of General Electrics receipt of Plaintiffs complaint, and the dismissal of the University of Chicago was involuntary, therefore not a new grounds for removal. WHEREFORE, Plaintiff prays that this Court enter an order remanding this action to the Circuit Court of Cook County, State of Illinois, and award Plaintiff his attorneys fees and expenses incurred in opposing the removal.
Page 1 of 3
Dated: December 6, 2011
Respectfully submitted, TorHoerman Law LLC Johnson Becker PLLC
/s/Tor Hoerman Tor A. Hoerman, #6229439 Eric Terry, #6282169 Jacob W. Plattenberger, #6297431 TorHoerman Law LLC 101 W. Vandalia, Suite 350 Edwardsville, IL 62025 Phone: (618) 656-4400 Fax: (618) 656-4401 thoerman@torhoermanlaw.com eterry@torhoermanlaw.com jplattenberger@torhoermanlaw.com and Michael K. Johnson, MN Bar #258696 Timothy Becker, MN Bar #256663 Rolf T. Fiebiger, MN Bar #391138 Johnson Becker PLLC 33 South Sixth Street, Suite 4530 Minneapolis, MN 55402 Phone: (612) 333-4662 Fax: (612) 339-8168 mjohnson@johnsonbecker.com tbecker@johnsonbecker.com rfiebiger@johnsonbecker.com Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE Plaintiff hereby certifies that a true and accurate copy of the foregoing instrument was served upon all parties listed on the service list via electronic filing and Regular Mail on this 6th day of December 2011. ______________________________
TO: SIDLEY AUSTIN LLP Sherry A. Knutson, Esq. One South Dearborn Street Chicago, IL 60603 Ph: 312-853-7000 Fax: 312-853-7036 sknutson@sidley.com Attorneys for General Electric Company; GE Healthcare A/K/A General Electric Company d/b/a GE Healthcare; GE Healthcare, Inc. d/b/a GE Healthcare Medical Diagnostics; GE Healthcare AS SWANSON, MARTIN & BELL, LLP Patricia S. Kocour, Esq. Jennifer Dicken 330 North Wabash, Suite 3300 Chicago, Illinois 60611 Ph: 312-321-9100 Fax: 312-321-0990 pkocour@smbtrials.com jdicken@smbtrials.com Attorneys for University of Chicago Medical Center JOHNSON BECKER LLC, P.C. Michael Johnson, Esq. (Pro Hac Vice) 33 South Sixth Street, Suite 4530 Minneapolis, MN 55402 Ph: 612-333-4662 Fax: 612-339-8168 mjohnson@johnsonbecker.com Attorney for Plaintiff
Page 3 of 3
Exhibit P
Minute Order Setting Motion for Remand Briefing Schedule

Case: 1:11-cv-08504 Document #: 16 244-3 12/13/11 Page 1 PagePageID #:412 Case MDL No. 1909 Document Filed: Filed 12/23/11 of 1 43 of 49
UNITED STATES DISTRICT COURT FOR THE Northern District of Illinois CM/ECF LIVE, Ver 4.2 Eastern Division Paul Young Plaintiff, v. General Electric Company, et al. Defendant. Case No.: 1:11cv08504 Honorable William J. Hibbler
NOTIFICATION OF DOCKET ENTRY
This docket entry was made by the Clerk on Tuesday, December 13, 2011: MINUTE entry before Honorable William J. Hibbler: Motion hearing held on 12/13/2011 regarding motion to remand [9], motion to stay [15]. Plaintiff's Motion to remand [9] is taken under advisement. Defendants to respond by 12/23/2011. Plaintiff to reply by 12/30/2011. Ruling by mail. Defendants Motion to stay proceedings pending final transfer decision by JPML [15] is taken under advisement. Plaintiff to respond by 12/23/2011. Defendants to reply by 12/30/2011. Ruling by mail. Application to appear pro hac vice of Robert Charles DeCarli [11], Debra DeCarli [12], Michael K. Johnson [13] and Rolf Fiebieger [14] as counsel for plaintiff are granted. Mailed notice (jdh)
ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was generated by CM/ECF, the automated docketing system used to maintain the civil and criminal dockets of this District. If a minute order or other document is enclosed, please refer to it for additional information. For scheduled events, motion practices, recent opinions and other information, visit our web site at www.ilnd.uscourts.gov.
Exhibit Q

Docket Sheet from Case No. 1:11-CV-08504
Case MDL No. 1909 Document 244-3 Filed 12/23/11 Page 45 of 49 KEYS
United States District Court Northern District of Illinois - CM/ECF LIVE, Ver 4.2 (Chicago) CIVIL DOCKET FOR CASE #: 1:11-cv-08504
Young v. General Electric Company et al Assigned to: Honorable William J. Hibbler Demand: $75,000 Case in other court: Circuit Court of Cook County, Law Division, 11L6157 Cause: 28:1441 Petition for Removal- Personal Injury Plaintiff Paul Young Individually and as Special Administrator for the Estate of Kenyetta Marks represented by Debra Decarli Decarli Law 50 California St. Ste. 1500 San Francisco, CA 94111 (415) 738-6144 Email: debra@decarlilaw.com PRO HAC VICE ATTORNEY TO BE NOTICED Michael K Johnson Johnson Becker PLLC 33 S 6th St., Ste. 4530 Minneapolis, MN 55402 612-333-4662 Fax: 612-339-8168 Email: mjohnson@johnsonbecker.com ATTORNEY TO BE NOTICED Robert Charles Decarli Decarli Law 50 California Street Suite 1500 San Francisco, CA 94111 (415) 738-6144 Email: bob@decarlilaw.com PRO HAC VICE ATTORNEY TO BE NOTICED Rolf Fiebiger Date Filed: 11/29/2011 Jury Demand: Both Nature of Suit: 365 Personal Inj. Prod. Liability Jurisdiction: Diversity
Johnson Becker, Pllc 33 South 6th Street Suite 4530 Minneapolis, MN 55402 (612) 436-1800 Email: rebiger@johnsonbecker.com PRO HAC VICE ATTORNEY TO BE NOTICED Tor A. Hoerman TorHoerman Law LLC 101 W. Vandalia St. Suite 350 Edwardsville, IL 62025 618-656-4400 Fax: 618-656-4401 Email: thoerman@torhoermanlaw.com ATTORNEY TO BE NOTICED V. Defendant General Electric Company represented by David Max Layfer Sidley Austin Llp 1 South Dearborn Chicago, IL 60603 (312) 853-7358 Email: dlayfer@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Maja C. Eaton Sidley Austin LLP One South Dearborn Street Chicago, IL 60603 (312) 853-7000 Email: meaton@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Sherry Ann Knutson Sidley Austin LLP One South Dearborn Street Chicago, IL 60603
(312) 853-7000 Email: sknutson@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Susan M. Brehm Sidley Austin LLP 1 S. Dearborn St. Chicago, IL 60603 (312) 853-2200 Email: sbrehm@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant GE Healthcare also known as General Electric Company doing business as GE Healthcare represented by David Max Layfer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Maja C. Eaton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Sherry Ann Knutson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Susan M. Brehm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant GE Healthcare, Inc. doing business as GE Healthcare Medical Diagnostics Defendant GE Healthcare AS Defendant
University of Chicago Medical Center
Date Filed 11/29/2011
Docket Text
1 NOTICE of Removal from Circuit Court of Cook County, Law Division, case number (11L 6157) led by GE Healthcare, Inc., General Electric Company Filing fee $ 350, receipt number 0752-6609597. with Exhibit List (Attachments: # 1 Exhibit A, # 2 Exhibit B - Part 1, # 3 Exhibit B - Part 2, # 4 Exhibit B - Part 3, # 5 Exhibit C)(Knutson, Sherry) (Entered: 11/29/2011) 2 CIVIL Cover Sheet (Knutson, Sherry) (Entered: 11/29/2011) 3 ATTORNEY Appearance for Defendants GE Healthcare, General Electric Company by Sherry Ann Knutson (Knutson, Sherry) (Entered: 11/29/2011) 4 NOTIFICATION of Afliates pursuant to Local Rule 3.2 by GE Healthcare, General Electric Company (Knutson, Sherry) (Entered: 11/29/2011) 5 ATTORNEY Appearance for Defendants GE Healthcare, General Electric Company by Maja C. Eaton (Eaton, Maja) (Entered: 11/29/2011) 6 ATTORNEY Appearance for Defendants GE Healthcare, General Electric Company by David Max Layfer (Layfer, David) (Entered: 11/29/2011) CASE ASSIGNED to the Honorable William J. Hibbler. Designated as Magistrate Judge the Honorable Arlander Keys. (jn, ) (Entered: 11/29/2011) 7 ATTORNEY Appearance for Defendants GE Healthcare, General Electric Company by Susan M. Brehm (Brehm, Susan) (Entered: 11/30/2011) 8 MAILED Notice of Removal Letter and an attorney appearance form to counsel of record. (mr, ) (Entered: 11/30/2011) 9 MOTION by Plaintiff Paul Young to remand (Attachments: # 1 Supplement Memo in Support of Plaintiff's Motion For Remand)(Hoerman, Tor) (Entered: 12/06/2011) 10 Plaintiff's NOTICE of Motion by Tor A. Hoerman for presentment of motion to remand 9 before Honorable William J. Hibbler on 12/13/2011 at 09:30 AM. (Hoerman, Tor) (Entered: 12/06/2011) 11 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752-6635391. (Decarli, Robert) (Entered: 12/07/2011) 12 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752-6639078. (Decarli, Debra) (Entered: 12/08/2011) 13 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752-6641924. (Johnson, Michael) (Entered: 12/09/2011)
11/29/2011 11/29/2011 11/29/2011 11/29/2011 11/29/2011 11/29/2011 11/30/2011 11/30/2011 12/06/2011
12/06/2011
12/07/2011 12/08/2011 12/09/2011
12/09/2011 12/12/2011
14 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752-6641974. (Fiebiger, Rolf) (Entered: 12/09/2011) 15 MOTION by Defendants GE Healthcare, Inc., General Electric Company to stay Proceedings Pending Final Transfer Decision by JPML and Incorporated Memorandum of Law (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Eaton, Maja) (Entered: 12/12/2011) 16 MINUTE entry before Honorable William J. Hibbler: Motion hearing held on 12/13/2011 regarding motion to remand 9 , motion to stay 15 . Plaintiff's Motion to remand 9 is taken under advisement. Defendants to respond by 12/23/2011. Plaintiff to reply by 12/30/2011. Ruling by mail. Defendants Motion to stay proceedings pending nal transfer decision by JPML 15 is taken under advisement. Plaintiff to respond by 12/23/2011. Defendants to reply by 12/30/2011. Ruling by mail. Application to appear pro hac vice of Robert Charles DeCarli 11 , Debra DeCarli 12 , Michael K. Johnson 13 and Rolf Fiebieger 14 as counsel for plaintiff are granted. Mailed notice (jdh) (Entered: 12/20/2011)
12/13/2011
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JURY TRIAL DEMANDED

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Dated: December 19, 2011

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

Case No. _______________

JURY TRIAL DEMANDED

The plaintiff never had a reasonable possibility of recovery against the

Pursuant to 28 U.S.C. 1446(d), a copy of this notice of removal is being

_____/s/ Sherry A. Knutson______________ Sherry A. Knutson (ARDC No. 6276306)

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

Case No. _______________

EXHIBITS TO GE DEFENDANTS NOTICE OF REMOVAL

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Case No. 1:11-CV-08504

JURY TRIAL DEMANDED

Dated: December 6, 2011

Respectfully submitted, TorHoerman Law LLC Johnson Becker PLLC

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NOTIFICATION OF DOCKET ENTRY

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Docket Sheet from Case No. 1:11-CV-08504

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University of Chicago Medical Center

Date Filed 11/29/2011

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12/07/2011 12/08/2011 12/09/2011

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_/s/ Sherry A. Knutson__________ Sherry A. Knutson (ARDC No. 6276306)