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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO


EASTERN DIVISION

GREGORY G. WHITE,
Plaintiff,
v.
RISHI K. GOEL, M.D., DEPUY
ORTHOPAEDICS, INC., DEPUY INC.,
DEPUY ACE MEDICAL USA, DEPUY
SPINE INC., JOHNSON & JOHNSON
MEDICAL INC., and JOHN DOE AND/OR
JOHN DOE, INC. I-V,
Defendants.
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CASE NO.

JUDGE


NOTICE OF REMOVAL

Pursuant to 28 U.S.C. 1332, 1441, Defendants DePuy Orthopaedics, Inc. (improperly
captioned as DePuy Ace Medical USA); DePuy Synthes, Inc. (improperly captioned as
DePuy Inc.); DePuy Spine, LLC (improperly captioned as DePuy Spine Inc.); and Ethicon,
Inc. (improperly captioned as Johnson & Johnson Medical Inc.) (collectively, Removing
Defendants), hereby remove this action from the Court of Common Pleas, Cuyahoga County,
Ohio, Case No. CV-14-832363, to the United States District Court for the Northern District of
Ohio. As required under 28 U.S.C. 1446(a), Removing Defendants set forth a short and plain
statement of the grounds for removal:
1. This action involves products liability allegations regarding a spine medical
screw and spine fixation device for postural lumbar fusion. (Compl., 3.) Plaintiff Gregory G.
White (Plaintiff) filed this products liability action against the named Defendants on
September 5, 2014, claiming that the implantation of these medical devices caused him to
experience chronic pain and a loss of enjoyment of life. (Compl., 20, 23.) The gist of his
claims against Removing Defendants is that the medical devices were defective. As required
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under 28 U.S.C. 1446(a), Removing Defendants attach as Ex. A copies of all process,
pleadings, and orders filed in state court and served on them.
2. Plaintiff also asserted a medical malpractice claim against Rishi K. Goel, M.D.
(Goel), the physician who implanted and removed the medical devices.
3. Plaintiffs medical malpractice claim was not accompanied by the requisite
affidavit of merit under Ohio Rule of Civil Procedure 10(D)(2). Instead, Plaintiff moved for a
90-day extension of time under Ohio Rule of Civil Procedure 10(D)(2)(b) because of the heavy
press of business and the delays associated both with obtaining Plaintiffs records and having
them reviewed by potential expert witnesses. (Pl.s Mot. for Enlargement of Time to File Aff.
of Merit, attached at Ex. A.)
4. Goel need not consent to removal because, as established below, he has been
fraudulently joined. See, e.g., Johnson Controls, Inc. v. J.F. Dunn Enters, Inc., No. 08-12045,
2009 WL 415706, at *1, n.2 (E.D. Mich. Feb. 19, 2009) ([I]f Defendants are able to establish
that J.F. Dunn was fraudulently joined as a party, then they need not obtain its consent to
removal.).
I. NOTICE OF REMOVAL IS TIMELY.
5. Plaintiff filed this action on September 5, 2014 in the Court of Common Pleas,
Cuyahoga County, Ohio.
6. DePuy Orthopaedics, Inc. and Ethicon, Inc. (improperly captioned as Johnson &
Johnson Medical Inc.) were each served with a Summons and copy of Plaintiffs Complaint on
September 10, 2014. They were the first of Removing Defendants to be served with a Summons
and copy of Plaintiffs Complaint. The Complaint was the initial pleading received by
Removing Defendants setting forth the claims for relief on which this action is based.
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7. Plaintiff perfected service on Goel on September 12, 2014.
8. Removing Defendants file this Notice of Removal within 30 days of receipt of the
initial pleading setting forth the claim for relief on which this action is based the Complaint. It
is therefore timely under 28 U.S.C. 1446(b). See Murphy Bros., Inc. v. Michetti Pipe
Stringing, Inc., 526 U.S. 344, 354 (1999) (holding that the 30-day time period under the removal
statute begins to run from the date of formal service).
II. REMOVAL IS PROPER BECAUSE THIS COURT HAS SUBJECT MATTER
JURISDICTION UNDER 28 U.S.C. 1332 AND 1441.
9. This action is removable under 28 U.S.C. 1441(a) because it is a civil action
over which this Court has original jurisdiction and because Removing Defendants are effecting
this removal to the District Court of the United States for the district and division embracing the
place where the action is pending.
10. The Court has original jurisdiction over this civil action under 28 U.S.C.
1332(a)(1) because the matter in controversy exceeds the sum or value of $75,000, exclusive of
interests and costs, and because complete diversity of citizenship exists between Plaintiff and all
properly joined and served Defendants.
A. The Amount-in-Controversy Requirement Is Met.
11. A removing defendant need only show that it is more likely than not that the
amount in controversy exceeds $75,000. Gafford v. Gen. Elec. Co., 997 F.2d 150, 158 (6th Cir.
1993), abrogated on other grounds by Hertz Corp. v. Friend, 559 U.S. 77, 91 (2010).
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1
The preponderance of the evidence standard was recently enacted in the Federal Courts Jurisdiction and Venue
Clarification Act of 2011, Pub. L. No. 112-63, 125 Stat. 758. According to the House Report accompanying the bill,
circuits have adopted differing standards governing the burden of showing that the amount in controversy is
satisfied. The sum claimed and legal certainty standards that govern the amount in controversy requirement
when a plaintiff originally files in Federal court have not translated well to removal, where the plaintiff often may
not have been permitted to assert in state court a sum claimed or, if asserted, may not be bound by it. H.R. Rep.
No. 112-10, at 15 (2011). Accordingly, the defendants do not need to prove to a legal certainty that the amount in
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12. It is apparent from the face of the Complaint that Plaintiff seeks recovery of an
amount in excess of $75,000, exclusive of costs and interest. Plaintiff asserts strict liability,
negligence, and breach of warranty claims against Removing Defendants. For these claims,
Plaintiff seeks unlimited damages in an amount in excess of the state court jurisdictional
minimum of $25,000 based on the following allegations: [Plaintiff] was caused to suffer chronic
pain following implantation of the device and required two (2) subsequent surgeries to remove or
repair it. . . . [H]e was required to seek medical care and treatment in connection with which he
has incurred and will continue to incur expenses. . . . [H]e has been restricted in his normal
activities, his health has been impaired, and his ability to perform normal daily tasks has been
restricted. . . . [H]e has suffered and will continue to suffer a loss of enjoyment of life. (Compl.,
17-38.)
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13. It is widely recognized that claims for personal injuries like those asserted here
facially meet the $75,000 jurisdictional threshold. See, e.g., In re Yasmin & Yaz (Drospirenone)
Mktg., Sales Practices & Prods. Liab. Litig., 692 F. Supp. 2d 1025, 1040 (S.D. Ill. 2010) (Given
the severe and ongoing nature of the injuries alleged, the Court finds that it is plausible and
supported by the preponderance of the evidence that the amount in controversy has been
established.); Yocham v. Novartis Pharms. Corp., No. 07-1810 (JBS), 2007 WL 2318493, at *3
(D.N.J. Aug. 13, 2007) ([I]t appears from the face of the Complaint that the amount in
controversy exceeds $75,000 because [i]n her Complaint, Plaintiff alleges, among other things,
damages relating to having experienced a life threatening skin condition ... which resulted in

controversy requirement has been met. Rather, defendants may simply allege or assert that the jurisdictional
threshold has been met. Id. at 16.
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Moreover, [w]hen determining the jurisdictional amount in controversy in diversity cases, punitive damages must
be considered . . . unless it is apparent to a legal certainty that such cannot be recovered. Hayes v. Equitable
Energy Res. Co., 266 F.3d 560, 572 (6th Cir. 2001) (quoting Holley Equip. Co. v. Credit Alliance Corp., 821 F.2d
1531, 1535 (11th Cir. 1987)).
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hospitalization ...[and] Plaintiff also seeks compensatory damages for past, present, and future
pain and suffering, lost earnings, past and future medical expenses and punitive damages.)
(internal quotation marks and citation omitted)). Furthermore, verdicts in similar cases support
the conclusion that the amount in controversy exceeds $75,000. See, e.g., Schindler v. Stewart
Medical, Inc., 1999 WL 1333766 (Unknown Pa. Ct. December 1998) (verdict of $1,585,000 in
products liability case alleging that rods implanted in plaintiffs back to correct spinal curvature
broke).
14. Given the serious nature of Plaintiffs strict liability, negligence, and breach of
warranty claims, and that similar alleged injuries have been found to meet the jurisdictional
threshold, it is facially apparent from Plaintiffs Complaint that the amount in controversy
exceeds the jurisdictional minimum. That is, if Plaintiff prevails on his claim, it is more likely
than not that his damages would exceed $75,000.
B. There Is Complete Diversity of Citizenship Between Plaintiff and All
Properly Joined and Served Defendants.
15. When an action is removed based on diversity, the court determines whether
complete diversity exists at the time of removal. Coyne v. Am. Tobacco Co., 183 F.3d 488,
492 (6th Cir. 1999).
16. Plaintiff is a citizen of the State of Ohio. (Compl.)
17. For purposes of determining its citizenship under 28 U.S.C. 1332(c)(1),
Defendant DePuy Orthopaedics, Inc. is a citizen of the State of Indiana because it is incorporated
in the State of Indiana and has its principal place of business in Warsaw, Indiana.
18. Defendant DePuy Inc. changed its name to DePuy Synthes, Inc. on December 30,
2012. DePuy Synthes, Inc. is a citizen of the States of Delaware and Indiana because it is
incorporated in the State of Delaware and has its principal place of business in Warsaw, Indiana.
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19. Defendant DePuy Ace Medical Company (improperly captioned as DePuy Ace
Medical USA) merged with and into DePuy Orthopaedics, Inc. on July 31, 2000. As
demonstrated above, DePuy Orthopaedics, Inc. is a citizen of the State of Indiana.
20. Defendant DePuy Spine Inc. was converted to DePuy Spine, LLC on May 23,
1983. For purposes of determining citizenship, DePuy Spine, LLC is a citizen of each state of
which its members are citizens. OnePoint Solutions, LLC v. Borchert, 486 F.3d 342, 346 (8th
Cir. 2007). The only member of DePuy Spine, LLC is Synthes USA, LLC; and the only member
of Synthes USA, LLC is DePuy Products, Inc. DePuy Products, Inc. is a citizen of the state of
Indiana because it is incorporated in the State of Indiana and has its principal place of business in
Warsaw, Indiana. Accordingly, DePuy Spine, LLC is a citizen of Indiana.
21. Defendant Johnson & Johnson Medical Inc. changed its name to Ethicon, Inc. on
December 29, 1997. Ethicon, Inc. is a citizen of the State of New Jersey because it is
incorporated in the State of New Jersey and has its principal place of business in Somerville,
New Jersey.
22. Accordingly, there is complete diversity between Plaintiff and all properly joined
Defendants:
NAME IN COMPLAINT CURRENT / PROPER NAME CITIZENSHIP
Gregory G. White Gregory G. White Ohio
DePuy Orthopaedics, Inc. DePuy Orthopaedics, Inc. Indiana
DePuy Inc. DePuy Synthes, Inc. Delaware, Indiana
DePuy Ace Medical USA DePuy Orthopaedics, Inc. Indiana
DePuy Spine Inc. DePuy Spine, LLC Indiana
Johnson & Johnson Medical Inc. Ethicon, Inc. New Jersey
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C. Goel Has Been Fraudulently Joined.
23. In determining whether a defendant has been fraudulently joined, the Sixth Circuit
requires not just an analysis of whether the plaintiff has stated a claim, but whether the
plaintiff has stated at least a colorable cause of action. King v. Centerpulse Orthopaedics, Inc.,
No. 1:05-cv-1318, 2006 WL 456478, at *2 (N.D. Ohio Feb. 24, 2006) (citing Jerome-Duncan,
Inc. v. Auto-By-Tel, L.L.C., 176 F.3d 904, 907 (6th Cir. 1999)). [T]he question is whether
there is arguably a reasonable basis for predicting that the state law might impose liability on the
facts involved. King, at *2 (citing Alexander v. Electronic Data Sys. Corp., 13 F.3d 940, 949
(6th Cir. 1994); see also Graphic Resources Group, Inc. v. Honeybaked Ham Co., 51 F. Supp. 2d
822, 825 (E.D. Mich. 1999) (noting that the removing defendant is not required to show that
there is absolutely no basis for recovery; instead, the inquiry is based on a reasonableness
standard) (citing Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C., 989 F. Supp. 838, 840 (E.D.
Mich. 1997), affd, 176 F.3d 904 (6th Cir. 1999)). Indeed, the U.S. Supreme Court has stated:
Federal courts should not sanction devices intended to prevent a removal to a Federal court
where one has that right, and should be equally vigilant to protect the right to proceed in the
Federal court. Wecker v. Natl Enameling & Stamping Co., 27 S. Ct. 184, 186 (1907).
24. A defendant can establish fraudulent joinder by demonstrating that claims
against the non-diverse defendants are time barred as a matter of law. Favor v. W.L. Gore
Assocs., Inc., No. 2:13-cv-655, 2013 WL 4855196, at *2 (S.D. Ohio Sep. 11, 2013) (citing Way
Intl v. Exec. Risk Indem. Co., No. 3:07-cv-294, 2008 U.S. Dist. LEXIS 25445, at *8 (S.D. Ohio
Mar. 31, 2008) (collecting cases)).
25. Under Ohio law, the determination of when a cause of action for medical
malpractice accrues involves an analysis of both the termination rule and the discovery rule.
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See Grandillo v. Montesclaros, 137 Ohio App.3d 691, 697 (3d Dist. 2000) (quoting Frysinger v.
Leech, 32 Ohio St.3d 38, 38 (1987)).
26. Under Ohios termination rule, a cause of action for medical malpractice
accrues and the one-year statute of limitations begins to run when the physician-patient
relationship for that condition terminates. See Frysinger, 32 Ohio St.3d at 41-42.
27. Plaintiff alleges that he continued to consult with Goel regarding his post-
operative symptoms only through January 2013. (Compl. 12.) Therefore, the termination
rule tolls the one-year statute of limitations only until January 2013. Frysinger, 32 Ohio St.3d
at 41-42.
28. Plaintiff filed his Complaint on September 5, 2014, approximately twenty months
after the one-year statute of limitations began to run under the termination rule. Therefore,
Plaintiffs claims against Goel are time-barred under the termination rule.
29. Under Ohios discovery rule, a cause of action for medical malpractice accrues
when a patient discovers, or in the exercise of reasonable care and diligence should have
discovered, the resulting injury. Allenius v. Thomas, 42 Ohio St.3d 131, 133 (1989) (quoting
Oliver v. Kaiser Cmty. Health Found., 5 Ohio St.3d 111, 111 (1983)). This so-called
cognizable event starts the statute of limitations running. Id. at 133-34. For example, a
patients cause of action accrued when he was immediately aware of the paralysis which
constituted his injury in the lawsuit following back surgery. Richards v. St. Thomas Hospital, 24
Ohio St.3d 27, 27-28 (1979); see also Rose v. Womens Health Clinic, 90 Ohio App.3d 776, 778-
80 (11th Dist. 1993) (cognizable event triggering the statute of limitations was the point at which
the patient learned she had cervical cancer).
30. The Ohio Supreme Court further refined the cognizable event test in Flowers v.
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012177.004321 1781777.1
Walker, 63 Ohio St.3d 546 (1992). The Flowers decision stated that it was knowledge of facts,
not their legal significance that starts the running of the statute of limitations. Id. at 549. A
plaintiff need not have discovered all of the relevant facts necessary to file a claim in order to
trigger the statute. Id. Rather, the cognizable event itself puts the plaintiff on notice to
investigate the facts and circumstances relevant to her claim in order to pursue her remedies.
Id. More specifically, [t]he occurrence of a cognizable event imposes on the plaintiff the duty
to (1) determine whether the injury suffered is the proximate result of malpractice and (2)
ascertain the identity of the tortfeasor or tortfeasors. Id. at 549-50. A patient need not be aware
of the full extent of the injury before there is a cognizable event. Allenius, 42 Ohio St.3d at 133-
34. Instead, a cognizable event is a noteworthy event . . . which does or should alert a
reasonable person-patient that an improper medical procedure, treatment or diagnosis has taken
place. Id. at 134.
31. Here, Plaintiff alleges that Goel was negligent in his implantation of the surgical
hardware and in his failure to timely diagnose and remove the failed hardware. (Compl. 14)
(emphasis added). Specifically, Plaintiff alleges that:
a. on August 10, 2012, Goel first implanted Plaintiff with the surgical hardware
(Compl. 7.);
b. on August 23, 2012, [Plaintiff] required a second surgery . . . wherein . . . Goel
removed and replaced the surgical hardware (Compl. 9.); and
c. on September 6, 2012, [Plaintiff] required a third surgery . . . wherein . . . Goel
removed and replaced the spinal fusion hardware. (Compl. 11.)
32. Plaintiff further alleges that Goel informed Plaintiff that the DePuy spine device
was the subject of a recall for defects and noted in Plaintiffs chart that the operation of
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September 6, 2012 was due to defective hardware. (Compl. 11-12.)
33. By Plaintiffs own Complaint, a cognizable event occurred no later than
September 6, 2012. By then, Plaintiff knew that Goel had implanted the surgical hardware in
him, that he had two subsequent surgeries to remove and replace the surgical hardware, and that
the surgical hardware was allegedly the subject of a recall for defects. (Compl. 7, 9, 11-12.)
Therefore, the discovery rule tolls the one-year statute of limitations no later than September 6,
2012. Flowers, 63 Ohio St.3d at 549-50.
34. Plaintiff filed his Complaint on September 5, 2014, nearly two years after the one-
year statute of limitations began to run under the discovery rule. Therefore, Plaintiffs claims
against Goel are time-barred under the discovery rule, as well.
35. Under either analysis, Plaintiffs claims against Goel are time-barred.
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Goel has
therefore been fraudulently joined because Plaintiff has no reasonable basis for recovery on his
claims against Goel.
WHEREFORE, notice is hereby given that this action is removed from the Court of
Common Pleas, Cuyahoga County, Ohio to the United States District Court for the Northern
District of Ohio.
DATED this 8th day of October, 2014.


3
Although Plaintiff does not allege when or if he sent Goel written notice of the claim pursuant to O.R.C.
2305.113(B)(1), Plaintiffs claims against Goel would still be time-barred even if written notice was sent at the last
possible time: January 2014. O.R.C. 2305.113(B)(1) provides that a plaintiff has only one hundred eighty days
(approximately six months) after notice is given to bring an action, but Plaintiff here filed suit approximately eight
months after January 2014.
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Respectfully submitted,
/s/ John Q. Lewis
John Q. Lewis (0067235)
Jonathan F. Feczko (0082772)
TUCKER ELLIS LLP
950 Main Avenue
Suite 1100
Cleveland, OH 44113-7213
Telephone: 216.592.5000
Facsimile: 216.592.5009
E-mail: john.lewis@tuckerellis.com
jonathan.feczko@tuckerellis.com
Attorneys for Defendants DePuy Orthopaedics,
Inc.; DePuy Synthes, Inc.; DePuy Spine, LLC;
and Ethicon, Inc.

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CERTIFICATE OF SERVICE
I hereby certify that on October 8, 2014, a copy of the foregoing Notice of Removal was
filed electronically. Notice of this filing will be sent to all parties by operation of the Courts
electronic filing system. Parties may access this filing through the Courts system. A copy of
the foregoing will be forwarded via electronic mail, this 8th day of October, 2014 to:
Thomas L. Brunn, Sr.
Thomas L. Brunn, Jr.
Alison D. Ramsey
THE BRUNN LAW FIRM, CO., L.P.A.
208 Hoyt Block Building
700 West St. Clair Avenue
Cleveland, Ohio 44113
brunn@core.com

Kris H. Treu
Mary E. White
MOSCARINO & TREU, LLP
The Hanna Building
1422 Euclid Avenue, Suite 630
Cleveland, Ohio 44115
ktreu@mosctreu.com
mwhite@mosctreu.com

Attorneys for Plaintiff








Attorneys for Defendant Rishi K. Goel,
M.D.

Respectfully submitted,
/s/ John Q. Lewis
Attorneys for Defendants DePuy Orthopaedics,
Inc.; DePuy Synthes, Inc.; DePuy Spine, LLC;
and Ethicon, Inc.

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