Durham v. Cincinnati Children’s Hospital Medical Center, 2017 WL 510268 (S.D. Ohio Feb. 8, 2017).

A district court in Ohio retained jurisdiction over a class action under CAFA by finding that a sampling of class members based the plaintiff’s own assertions showed that less than two-thirds of the potential class members were from state of Ohio, and the fact that the lawsuit is a case of national interest.

Case Facts

This action is similar to lawsuits brought by another law firm on the behalf of 185 plaintiffs relating to allegations that Dr. Abubakar Atiq Durrani, an orthopedic surgeon formerly operating in the Cincinnati/Northern Kentucky area, performed hundreds of orthopedic surgeries on patients, without informed consent, by misleading the patients about the need for surgery.

This action was originally brought in the Hamilton County Court of Common Pleas by the plaintiff, alleging that the defendant, Cincinnati Children’s Hospital Medical Center, used or allowed the use of a biologic medical device called “Infuse” in surgical procedures performed on patients at its facilities.  The complaint further alleged that the defendant used Infuse in such manners not specifically approved by the FDA, otherwise known as “off-label” use.  The complaint raised claims of (1) fraud; (2) negligence; (3) violating the Ohio Consumer Sales Protection Act; and (4) negligent credentialing, supervision, and retention.

Procedural Background

The complaint was styled as a class action, with the alleged class being “any Infuse patient at the hospital Dr. Durrani implanted Infuse who was not already a Deters Law Office or other law office client how had brought a claim for Infuse.”  The complaint claimed that the Deters Law Firm had brought similar claims against Dr. Durrani on behalf of 185 known individuals, and that this action was on behalf of all those other individuals who had been affected but not yet acquired representation.

The defendant removed the action on basis of federal jurisdiction under 28 U.S.C. § 1331, and also under the CAFA.  The plaintiff filed a motion for remand.

The District Court first found that there was no substantial federal issue raised in this action, and therefore, did not have federal jurisdiction over this matter under § 1331.

Court’s Analysis

As to CAFA removal, the District Court observed the following: (1) the only defendant in this action was a citizen of Ohio; and (2) not all putative class members in this case were known at the time, however, the data available in similar lawsuits demonstrated that less than two-thirds of the putative class members were citizens of Ohio.

The District Court held that in the plaintiff’s own provided sampling of potential class members, consisting of 70 known plaintiffs suing the manufacturer of Infuse, 65.7% of the sample was from Ohio, less than the two-thirds needed to require the Court to decline jurisdiction.  The defendant’s analysis of all pending cases against the hospital relating to Dr. Durrani showed that 60.6% of those plaintiffs were citizens of Ohio.  The District Court remarked that the exact class member count was not required for the court to evaluate the applicability of the CAFA exceptions, and the Court extrapolated from the available date that less than two-thirds of potential class members in this case were residents of Ohio.

Because a sampling of potential class members indicated that less than two-thirds of putative class members were citizens of Ohio, the District Court observed that the only mechanism available for denying jurisdiction of the class action was the exceptions contained in § 1332(d)(3).

After evaluating the exceptions in the statute the District Court found that these factors favored the exercise of federal jurisdiction.  This is a case of national interest, and several products liability cases related to the use of Infuse had already been heard by this court.  Any decision regarding the defendant’s liability for using Infuse in surgeries would have an impact on many similar cases across the country yet to be decided.  Additionally, despite the Court’s holding that the federal issues in this case did not rise to the level required to grant the Court a federal jurisdiction, the need to interpret the Federal Food, Drug, and Cosmetic Act (“FDCA”) regulations in evaluating this case weighed, at least in some degree, in favor of the Court exercising jurisdiction under CAFA.

Finally, the District Court concluded that the fact that a substantial minority of potential plaintiffs in this case came from states other than Ohio (primarily but not exclusively Kentucky) also guided the Court to accept jurisdiction, therefore, this case was not a local controversy confined only to Ohio.

Accordingly, the Court exercised jurisdiction over this action under CAFA.

  • Nicholas J Kopcho