United States District Court, N.D. Alabama, Southern Division
K. KALLON UNITED STATES DISTRICT JUDGE
Laran Crowe filed this products liability action against the
Synthes Defendants and Paul Blaszyk in the Circuit Court of
Jefferson County, Alabama. Doc. 1-1. Crowe alleges that she
suffered severe injuries after the tip of a Thoracic Pedicle
Probe designed, manufactured, and sold by the Synthes
Defendants broke and lodged in her spine during back surgery.
Blaszyk, a sales consultant employed by the Synthes
Defendants, was present during the surgery and consulted with
Crowe's surgeon regarding the complication. Id.
at 9-10. As a result, Crowe pleaded claims under the Alabama
Extended Manufacturer's Liability Doctrine
(“AEMLD”) and for failure to warn, negligence,
and fraudulent concealment against Blaszyk individually.
Id. at 13-23.
Synthes Defendants removed this action to this court,
asserting that jurisdiction exists pursuant to 28 U.S.C.
§ 1332(a) because Crowe fraudulently joined Blaszyk to
destroy diversity jurisdiction. Doc. 1. This action is before
the court on Blaszyk's motion to dismiss, doc. 6, and
Crowe's motion to remand, doc. 9. Because the Synthes
Defendants have not established that no reasonable
possibility exists that Crowe can establish a cause of action
against Blaszyk, Crowe's motion to remand is due to be
STANDARD OF REVIEW
courts are courts of limited jurisdiction, with the power to
hear only cases authorized by the Constitution or by statute.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). By federal statute, “any civil action
brought in a State court of which the district courts of the
United States have original jurisdiction, may be removed by
the defendant or the defendants, to the district court of the
United States for the district and division embracing the
place where such action is pending.” 28 U.S.C. §
1441(a). A party seeking removal bears the burden of
establishing that jurisdictional requirements are met.
See Lowery v. Ala. Power Co., 483 F.3d 1184, 1207
(11th Cir. 2007). “[F]ederal courts are directed to
construe removal statutes strictly . . . . [A]ll doubts about
jurisdiction should be resolved in favor of remand to state
court.” Univ. of S. Ala. v. Am. Tobacco Co.,
168 F.3d 405, 411 (11th Cir. 1999).
FACTUAL AND PROCEDURAL BACKGROUND
Synthes Defendants designed, manufactured, and sold the
MATRIX Spine System, a pedicle screw spinal fixation system,
which includes the Thoracic Pedicle Probe. Doc. 1-1 at 8.
Crowe's neurosurgeon utilized the MATRIX system during
Crowe's surgery, and Blaszyk was present for most of the
seven-hour surgery. Id. at 9-10. During the course
of the surgery, 30 millimeters of the distal end of the
Thoracic Pedicle Probe broke off in Crowe's left
vertebral pedicle at L 5. Id. at 10. After
unsuccessful attempts to remove the embedded tip of the
Pedicle Probe, Crowe's surgeon had to stop the procedure
to consult with Blaszyk, who then contacted a DePuy Synthes
product manager. Id. The complication caused a
two-hour delay and forced Crowe's surgeon to fix
Crowe's spine from L3 to S1 rather than from L5 to S1 as
planned. Id. at 10-11. Crowe contends that she
suffers from extreme pain and physical impairments as a
result, and will require future surgeries to remove the
portion of the probe that remains embedded in her spine.
Id. at 13.
filed this lawsuit in state court against the Synthes
Defendants and Blaszyk. Doc. 1-1. As filed, complete
diversity of citizenship does not exist because both Blaszyk
and Crowe are Alabama citizens. Id. at 5. At issue
here is the Synthes Defendants' contention that Crowe
purportedly fraudulently joined Blaszyk in this action to
defeat diversity jurisdiction. Doc. 1.
prove fraudulent joinder, a defendant must show by clear and
convincing evidence that “there is no possibility the
plaintiff can establish a cause of action against the
resident defendant . . . .” Henderson v. Washington
Nat. Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006)
(quoting Crowe v. Coleman, 113 F.3d 1536, 1538 (11th
Cir. 1997)). This burden “is a ‘heavy one,
'” and the court must construe the facts and
“resolve any uncertainties about state substantive law
in favor of the plaintiff.” Crowe, 113 F.3d at
1538 (citations omitted). “The determination of whether
a resident defendant has been fraudulently joined must be
based upon the plaintiff's pleadings at the time of
removal, supplemented by any affidavits and deposition
transcripts submitted by the parties.” Legg v.
Wyeth, 428 F.3d 1317, 1322 (11th Cir. 2005) (quotation
and emphasis in original omitted).
considering a motion for remand [based on fraudulent
joinder], federal courts are not to weigh the merits of a
plaintiff's claim beyond determining whether it is an
arguable one under state law. If there is even a possibility
that a state court would find that the complaint states a
cause of action against any one of the resident defendants,
the federal court must find that joinder was proper
and remand the case to state court.” Crowe,
113 F.3d at 1538 (quotation omitted) (emphasis added).
“The plaintiff need not have a winning case against the
allegedly fraudulent defendant; [s]he need only have a
possibility of stating a valid cause of action in
order for the joinder to be legitimate.” Triggs v.
John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir.
1998) (emphasis in original). But, “[t]he potential for
legal liability ‘must be reasonable, not merely
theoretical.'” Legg, 428 F.3d at 1325 n.5
stated previously, Crowe asserts claims against Blaszyk under
the AEMLD, and for negligence, failure to warn, and
fraudulent concealment. Doc. 1-1 at 13-23. “The AEMLD
establishes a cause of action against ‘a manufacturer,
or supplier, or seller, who markets a product not reasonably
safe when applied to its intended use in the usual and
customary manner, thereby constituting negligence as a matter
of law.'” Southern, v. Pfizer,
Inc., 471 F.Supp.2d 1207, 1215 (N.D. Ala. 2006) (citing
Casrell v. Altec Indus., Inc., 335 So.2d 128, 132
(Ala. 1976)) (alterations in original omitted). The Synthes
Defendants argue that because a product representative or
sales consultant is not a “seller” for purposes
of the AEMLD, there is no reasonable possibility that Crowe
can establish a claim against Blaszyk. Docs. 1 at 6; 11 at
is no bright-line rule that product representatives and sales
consultants are not “sellers” under the AEMLD.
See Southern, 471 F.Supp.2d at 1215-16. Rather,
courts look to the specific facts of a case, including a
consultant's involvement with the plaintiff, her
physician, and the product at issue, to determine if a
consultant is a seller for purposes of the AEMLD. See
Id. at 1215-17; Culpepper v. Stryker
Corporation, 968 F.Supp.2d 1144, 1152-54 (M.D. Ala.
2013); Bloodsworth v. Smith & Nephew, 2005 WL
3470337, at *6-7 (M.D. Ala. Dec. 19, 2005). In this case, to
prove that Blaszyk is not a seller, the Synthes Defendants
provide a declaration from Blaszyk, which states in part that
he has “no personal knowledge that any of the
marketing” for the MATRIX system was incorrect or
misleading and no “specialized knowledge that was
unavailable to [Crowe's] surgeon, ” that he
“was not aware of any alleged reported problems of tip
breakage or embedding, ” and that he has “never
made any representations or statements or provided any
express or implied warranties . . . about whether the [MATRIX
system] was suitable for [Crowe].” Doc. 1-2 at 3.
Notably, Blaszyk does not dispute that he was present during
almost all of Crowe's surgery or that her surgeon
consulted with him when complications arose during the
surgery. See Id. Consequently, the facts of this
case are materially different from those the Synthes
Defendants cite to support their argument that Crowe cannot
be considered a seller under the AEMLD. See
Culpepper, 968 F.Supp.2d at 1149 (noting that the
product sales representative attested that “he has
never participated in a surgical procedure” at the
hospital where the plaintiff had surgery and “has never
spoken to [the plaintiff] or anyone who treated her”);
Southern, 471 F.Supp.2d at 1213 (noting that the
product representatives either had never called on or had not
provided relevant information to the plaintiff's
physician); and Bloodsworth, 2005 WL 3470337, at *7
(noting that the product representative attested that he
“merely received orders and delivered  products . . .
to physicians”). Thus, because Blaszyk was involved
with Crowe's surgery and conferred with Crowe's
surgeon about the allegedly defective product, the cases the
Synthes Defendants rely upon do not establish that Blaszyk
cannot be considered a seller for purposes of the AEMLD, or
that there is no reasonable possibility that Crowe can
establish an AEMLD claim against Blaszyk.
with respect to her negligence claims, Crowe alleges that
“Blaszyk had a duty to act as a reasonable medical
device sales consultant . . . and to provide [her] healthcare
providers with important and material information regarding
the MATRIX and specifically, the Thoracic Pedicle Probe 
including breakage and embedding problems, proper usage, and
proper technique with regard to the Thoracic Pedicle
Probe.” Doc. 1-1 at 21. Although, as noted above,
Blaszyk states that he does “not have any specialized
knowledge that was unavailable to [Crowe's]
surgeon” and that he “was not aware of any
alleged reported problems of the tip breakage or embedding,
” Blaszyk provides no information about why he attended
Crowe's surgery, or what information he provided to the
surgeon when the surgeon conferred with him during the
surgery. Doc. 1-2. On this record, the court cannot say there
is no ...