Ryles et al v. I-Flow Corporation et al, No. 3:2010cv01315 - Document 45 (D. Or. 2011)
Court Description: Opinion and Order. Defendant McKinley's Motion to Sever 24 is denied as moot. Plaintiffs' Motion to Remand Case to State Court 26 is granted. Signed on 02/15/2011 by Chief Judge Ann L. Aiken. (lg)
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Ryles et al v. I-Flow Corporation et al Doc. 45 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON BLENDA RYLES; ALEXANDER ZOCH; and CHRISTINE ZOCH, Civ. No. lO-1315-AA OPINION AND ORDER aintiffs, v. I-FLOW CORPORATION; McKINLEY MEDICAL, LLC; DJO INCORPORATED; DJO, LLC; PACIFIC MEDICAL, INC.; DAVID GAMROTH, an individual; and EAST PORTLAND SURGERY CENTER, Defendants. AIKEN, Chief Judge: Plaintiffs filed 1 ability suit a negl inst defendants alleging products arising from damages allegedly caused by the use of pain pump devices manufactured by I Flow Corporation (1 Flow) fendants 1 McKi DJO, Medical LLC (DJO) LLC and (McKinley) fic and Medical, stributed Inc. by (Pacif - OPINION AND ORDER Dockets.Justia.com Medical) . East Although plaintiffs and defendants Portland Surgery Center are residents fendants removed this action to Surge of Oregon, I court. complete diversity jurisdict Portl grounds that they allege as de juri ction inst Gamroth iffs' motion is res between each pIa § P s. to state court on state law claims Surgery Center. Divers U.S.C. DJO contends that Center are fraudulently jo and East Portl DJO exists because Gamroth and East Plaintiffs now move to remand this act citi d Gamroth and ed. ity complete iff and each de 1332 (a); 28 519 U.S. (1996) ; of 61, 68 1089, 1095 (9th Cir. 358 F. 2004) . However, if a non-diverse defendant has been "fraudulently ]oi " the 's sence does not control the court's determination of divers United Computer Sys., Inc. v. AT & T Corp., ( 9 t h Ci r. 2 98 F. 3 d 756 f ==~~~~~~, 7 61- 62 2002); 236 F.3d 1061, 1067 (9th Cir. 2001). fendant is deemed ently joined if plaintiff fails to state a cause of action against that de "'obvious acco ng to t 236 F.3d at 1067; 133 6 , 13 3 9 A non-diverse and such fai settled rules of t state.'" ( 9th Ci r . 1 98 7) ) . the Morris, (quoting McCabe v. General Foods Corp., 811 F.2d I f doubt s t s a s to whe the r complaint states a cause of action, it should be resolved remandi is case 2 - OPINION AND ORDER to state court. Moore-Thomas v. the favor Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. Southern Pac. Co., 187 F.2d 397, 400 (9th According to the pia p Alexander Zoch underwent shoulder 2009) Smith v. i r. 1951). iffs Blenda es ry at the East Portland into Surgery Center, after which pain pump catheters were insert t ir shoulder j is a s for ief. entative s promot in Paci such uses of the pa strict products I pumps. established damage, and had not approved pa not Center. Soeci Y of East Portland that icat despite the Admi ential strat such uses. that cognizable cause of action aga Surge all cia iffs all the Food and pumps maintain who Gamroth the safety of pain pumps had not r orthopedic Defendants Pia 2-3. t Gamroth, assert to provide warnings sk of cartil Medical lity against both Gamroth Surgery Center and negligence fai Compl. , intiffs fail to allege a t either Gamroth or East Portland cally, defendants argue that Oregon law has recognized cIa of products liabil y aga t hospitals 1 th care providers, or medical sales representatives, and that this court has dismissed cia cal s Supp. of s representat 2d 1178, 1 1 (D. 180 F. Or. 2001). plaintiffs' factual allegations are to allege or establi 3 igence brought against a Defendants also argue that: ficient, in t they il that Gamroth or East Portland Surgery Center OPINION AND ORDER are in "t I business of selli do not find that p for products 1 pain pumps." lity aga is "obvious" according to 236 f. at 1067. alleged intiffs' ilure to state a East Portland es" of Oregon. settled This court has ry Center Oregon Court of Id that " als has suggested that a products 1 lity cl fact, healthcare provider such as Legacy may, against a viable under Oregon law." ==~~~~~~==~~~, Jan. 7, 2008) (citing Docken v. Ciba-Geigy, 86 Or. App. 277, 282, 739 P.2d 591 (1987)). East Portland S inferred. 2008 WL 113902, Further, plaintiffs allege Whether a cla iffs' by the Oregon courts. ify aile igence claim against Gamroth, facts from which pp. cts from which is viable under Oregon law is a Further, although defendants inc defici elements of negligence could 6-7; valid strict li law, Therefore, ility and iffs' pi ligence c where doubt alleges determined, li ty. 158 Or. App. (1999). es in Compl elements of unreasonableness and fores 972 P.2d 1215 (D. Or. ry Center's status as a seller of products could question appropriately address p *1 Compl., 106, 109-110, to allege ims is not "obvious" under sts, remand is appropriate. CONCLUSION Plaintiffs' Motion to nley's Motion to Sever 4 OPINION AND ORDER Remand (doc. 24) (doc. is 26) is GRANTED, DEN lED as moot. and This . . act is HEREBY REMANDED to Oregon for Ci Court of County of Multnomah. IT IS SO ORDERED. t~is / S day of , 2011. Ann Aiken United States Dist ct Judge 5 - OPINION AND ORDER State of
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