Products Liability Law Daily Wrap Up, JURISDICTION—BABY PRODUCTS—S.D. Ill.: Products liability action against Mead Johnson arising from injuries to infant remanded to state court, (Oct 4, 2024)

By Nicholas Kaster, J.D.

The claimant rectified the technical defects in her complaint before any parties were dismissed.

A federal district court in Illinois has remanded to state court a products liability action against Mead Johnson arising from injuries to a child who was given the company’s cow’s milk-based infant formula. The court ruled that the joinder of a hospital, a non-diverse defendant, was not fraudulent. Accordingly, it remanded the case to state court for lack of subject matter jurisdiction (Hobson v. Mead Johnson & Co., LLC, No. 24-CV-1615-SPM (S.D. Ill. Oct. 2, 2024)).

Background. The claimant filed suit in Illinois state court against Mead Johnson and Protestant Memorial Medical Center, Inc. (Memorial Hospital), as a result of injuries sustained by her minor child, who had been given Mead Johnson’s cow’s milk-based infant feeding products while hospitalized at Memorial Hospital and was diagnosed with necrotizing enterocolitis.

The complaint asserted five counts against Mead Johnson—strict liability for design defect, strict liability for failure to warn, negligence, intentional misrepresentation, and negligent misrepresentation—as well as one count of institutional misrepresentation, or medical malpractice, against Memorial Hospital.

Mead Johnson filed a timely Notice of Removal based upon diversity of jurisdiction. Within the notice, Mead Johnson contended that the claimant fraudulently joined Memorial Hospital, which is located within St. Clair County, Illinois, to this action to prevent removal, and, as such, the residency of the hospital should be disregarded.

Specifically, Mead Johnson pointed out that the claimant failed to attach an affidavit pursuant to the Illinois Healing Art Malpractice Act, to support her claim of medical malpractice. As such, Mead Johnson asserted that Memorial Hospital was not a viable defendant; thus, complete diversity existed with the claimant.

Mead Johnson insinuated that the claimant novelly alleged medical malpractice against the local hospital for the first time just to defeat complete diversity. Mead Johnson also renewed prior arguments that Memorial Hospital was not even a valid party since there was no certificate of merit, which is required under Illinois law.

Fraudulent joinder. Mead Johnson contended that Memorial Hospital was fraudulently joined in this action. Fraudulent joinder occurs either when there is no possibility that a plaintiff can state a cause of action against non-diverse defendants in state court, or when there has been outright fraud in the plaintiff's pleading of jurisdictional facts.

In this case, Mead Johnson did not assert that the claimant made false allegations of jurisdictional facts. Therefore, Mead Johnson had the heavy burden of proving there was no reasonable probability that the claimant could establish a cause of action against the diversity-defeating defendant (Memorial Hospital) in state court.

Courts only assess whether a plaintiff’s complaint provides a reasonable basis for recovery against an in-state defendant, not whether the plaintiff will ultimately be successful on the merits. In fact, even if a state court may ultimately find a plaintiff has failed to state a claim against a defendant, joinder of the claim is not “fraudulent” for purposes of jurisdiction so long as the state law issue is subject to reasonable argument on both sides.

The claimant contended that Mead Johnson could not meet its “heavy burden” that Memorial Hospital was fraudulently joined because Memorial Hospital is an Illinois entity, and because the claimant rectified its pleading deficiency when it attached both a physician affidavit and an attorney affidavit in compliance with the Illinois Healing Art Malpractice Act to its motion to remand.

Mead Johnson countered that it properly removed the case and that the claimant’s failure to comport with the Illinois Healing Art Malpractice Act resulted in “no chance of success” on any alleged claims against the hospital. Mead Johnson alleged that the claimant had no intention to pursue claims against the hospital. As such, Mead Johnson summarily concluded that the designation of the hospital was fraudulent, and that the claimant’s failure to comply with the Act should result in dismissal.

Moreover, Mead Johnson contended that it was irrelevant that the claimant provided the requisite certificate of merit as an exhibit to the motion, because jurisdiction is determined at the time of removal, and in this case, there was no certificate filed with the complaint, so there was no doubt that the complaint was non-compliant.

However, the court noted that, while the claimant did not amend her complaint, she did provide the requisite affidavit in her first pleading in this court, i.e., the motion to remand. The Act, the court noted, is a tool to reduce frivolous lawsuits by requiring a minimum amount of merit, not a likelihood of success. Indeed, said the court, plaintiffs should not lose substantive rights merely because they have not complied with the statute. Furthermore, the absence of strict technical compliance is one of form and not one of substance, and failure to file an affidavit should not interfere with the spirit or purpose of the statute. The claimant, said the court, has not just demonstrated her ability to comply, she has actually complied by willingly attaching the certificate and affidavit to her motion to remand.

The court noted that Mead Johnson bore the burden of establishing fraudulent joinder and must show that, after resolving all issues of fact and law in favor of the claimant, she could not establish a cause of action against Memorial Hospital.

To decide this, the court was required to determine whether there was any reasonable probability that the state court could rule against the non-diverse defendant. If so, then joinder was not fraudulent. Memorial Hospital, the court noted, was clearly connected to the products liability claims, as Memorial Hospital was where the claimant’s child was provided Mead Johnson’s cow’s milk-based infant feeding products.

Furthermore, the court found that any technical defects had been rectified before any parties were dismissed. While the court did not know why no certificate of merit was attached to the underlying state court complaint or why no attorney affidavit was filed seeking additional time to file a certificate of merit, it noted the extremely tight timeline in this case. The claimant was well within the 90-day extension of time window when she attached the certificate of merit and attorney affidavit to her motion to remand. Indeed, the complaint was filed on May 28, 2024, the notice of removal was filed on June 27, 2024, and the motion for remand that included the certificate of merit was filed on June 29, 2024.

Because the removal statute is narrowly construed and because any doubts about removal must be resolved in favor of remand, this action must be remanded, the court concluded. However, the court denied the claimant’s request that attorney fees and costs associated with the removal be awarded.

The case is No. 24-CV-1615-SPM.

Judge: McGlynn, S.

Attorneys: Ashley C. Keller (Keller Postman LLC) for Shawnteshia Hobson. Jamie Marie Noonan Witte (Steptoe LLP) for Mead Johnson & Co., LLC and Mead Johnson Nutrition Co. Teresa D. Bartosiak (Bartosiak Makepeace, PC) for Protestant Memorial Medical Center, Inc. d/b/a Memorial Hospital - Shiloh.

Companies: Mead Johnson & Co., LLC; Mead Johnson Nutrition Co.; Protestant Memorial Medical Center, Inc. d/b/a Memorial Hospital - Shiloh

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