The opinion of the court was delivered by: Norma L. Shapiro, J.
Plaintiffs Donna and Mark Crutchley filed an action in Philadelphia Court of Common Pleas against defendants I-Flow, Inc. ("I-Flow"), Hospira, Inc., Abbott Laboratories, APP Pharmaceuticals, Inc., APP Pharmaceuticals LLP, Abraxis Bioscience, Inc., and Leslie Hubbard Jacobson ("Jacobson").*fn1 I-Flow filed a notice of removal. The court will grant plaintiffs' motion to remand.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Donna Crutchley seeks compensatory and punitive damages resulting from the use of a "pain pump," I-Flow's ON-Q(r) PainBuster(r) Post-Op Pain Relief System, to inject sustained doses of pain medication over a 48 hour period subsequent to shoulder surgery. Her claims are against I-Flow, the manufacturer of the pain pump, Jacobson, the sales representative allegedly responsible for marketing the pump to her surgeon, and the manufacturers of pain medications allegedly injected through the pump. Plaintiff Mark Crutchley, Donna's husband, brings a derivative claim for loss of consortium.
Donna Crutchley underwent arthroscopic shoulder surgery and was treated by means of the pain pump on or about November 2, 2006. Subsequent to her surgery, Ms. Crutchley experienced long-term and debilitating deterioration of the cartilage in the shoulder where the medication was injected. On September 9, 2008, a physician informed Ms. Crutchley that her shoulder condition may have resulted from the pain pump used in her surgery. (Pls' Memorandum in Reply to Defendants' Opposition to Motion to Remand, Ex. B.)
Plaintiffs filed in Philadelphia Court of Common Pleas on November 24, 2008, listing nine counts in their claim: count I for negligent failure to warn; count II for negligent misrepresentation; count III for fraud / misrepresentation; count IV for strict products liability; count V for strict products liability arising out of failure to warn; count VI for breach of implied warranty; count VII for breach of express warranty of fitness for a particular purpose; count VIII for loss of consortium; and count IX for punitive damages. It is unclear from the complaint itself how many of these counts properly include Jacobson as a defendant.
In their complaint, plaintiffs make these allegations concerning Jacobson's involvement in Donna Crutchley's injury:
(1) she was an I-Flow sales representative who marketed and promoted the pain pump to Dr. Jaeger, plaintiff's surgeon (Pls.'Complaint, ¶30);
(2) she knew or reasonably should have known that the pain pump was unreasonably dangerous and defective when used as directed and as designed (Id., ¶¶40-42);
(3) she had actual knowledge of the I-Flow pump's defect and that the pump was never tested for safety (Id., ¶¶40-42);
(4) she intentionally or negligently failed to warn the surgeon of the pain pump's defect or even that the pain pump had not been tested for the safe use of intra-articular catheter placement (Id., ¶41); and (5) she negligently and intentionally made misrepresentations to Dr. Jaeger regarding the safety of I-Flow's pain pumps, Dr. Jaeger's reliance on which, ultimately led to him to use the pain pump to inject medication into Donna Crutchley's shoulder following surgery and in turn to plaintiffs' injury. (Id., ¶¶47-61).
The Crutchleys are citizens of Pennsylvania. I-Flow is a corporation incorporated in Delaware with its principal place of business in California. Defendant Abbott Laboratories is incorporated in and has its principal place of business in Illinois. Defendants Hospira, Inc., APP Pharmaceuticals, Inc., APP Pharmaceuticals LLP, and Abraxis Bioscience, Inc., are all Delaware corporations with their principal places of business in Illinois. Jacobson is a citizen of Pennsylvania.
On January 5, 2009, I-Flow filed a notice of removal based on diversity. I-Flow claimed plaintiffs fraudulently joined Jacobson solely to prevent removal. Plaintiffs filed the ...