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Draper v. Center for Organ Recovery and Education

April 8, 2010


The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge


Pending before the Court is PLAINTIFFS' MOTION TO REMAND TO STATE COURT AND FOR ATTORNEYS' FEES AND COSTS (Document No. 9) with brief in support. Defendant The Center for Organ Recovery and Education ("CORE") filed a brief in opposition to the motion and Plaintiffs filed a reply brief (Document Nos. 11, 12). The motion is ripe for disposition.

Factual and Procedural Background

The underlying dispute involves the process applied in the allocation of a donated human liver for transplantation. The question before the Court is whether CORE may properly remove this case from state court to federal court. CORE contends that removal is proper under 28 U.S.C. §§ 1441 and 1442(a)(1). Plaintiffs contend that removal is improper and that this case should be remanded to the Pennsylvania state court.

Plaintiffs Jay and Virginia Draper are the co-administrators of the estate of their deceased son, Jeffrey D. Draper. Plaintiffs filed a lawsuit against CORE in the Court of Common Pleas of Allegheny County, Pennsylvania under the state Wrongful Death Act and Survival Act. Plaintiffs are Pennsylvania residents and CORE is alleged to be a Pennsylvania non-profit corporation. In essence, Plaintiffs contend that CORE acted negligently by allocating a donated liver to a patient who was a lower priority on the waiting list than their son. Specifically, the Complaint alleges that: (1) CORE failed to run a "liver only" allocation list after a "multi-visceral" organ donation was declined and converted into a "liver only" donation; (2) had CORE prepared a "liver only" list, Jeffrey Draper would have received the donated liver; and (3) Jeffrey Draper died as a direct result of not having received this liver. Defendant CORE filed a timely notice of removal to this Court.

In 1984, Congress passed the National Organ Transplantation Act (NOTA), 42 U.S.C. § 273 et seq., to develop a national policy regarding organ transplantation. The law created the Organ Procurement and Transplantation Network (OPTN), which was mandated to be a "private, nonprofit entity." 42 U.S.C. § 274(b)(1)(A). The sole OPTN in the United States is United Network for Organ Sharing (UNOS), which is a Virginia non-profit corporation. UNOS has promulgated various policies and procedures concerning the procurement and allocation of organs. UNOS has also entered into agreements with various Organ Provider Organizations (OBOs), such as CORE. CORE is the exclusive OBO for western Pennsylvania, a large portion of West Virginia, and one county in New York. The operations and functioning of UNOS and the OBOs, including CORE, are subject to extensive federal regulations. 42 C.F.R. §§ 121, 486.

Legal Analysis

In Brown v. Jevic, 575 F.3d 322, 326 (3d Cir. 2009), the Court of Appeals explained: "Removal statutes are to be strictly construed, with all doubts to be resolved in favor of remand."

Further, the burden is on the removing party to demonstrate that jurisdiction is proper in this court. The Court will address CORE's contentions seriatim.

A. Removal Pursuant to Section 1441

CORE contends that removal is proper under 28 U.S.C. § 1441 (a) or (b) because this case falls within this Court's "original jurisdiction." In 28 U.S.C. § 1331, Congress provided that federal district courts shall have "original jurisdiction" over civil actions "arising under the Constitution, laws or treaties of the United States." (Emphasis added).

CORE recognizes that to determine jurisdiction, the "well pleaded complaint rule"*fn1 generally applies and that the Complaint in this case asserts only negligence claims cognizable under Pennsylvania state law . However, CORE argues that an exception to to the "well pleaded complaint rule" applies because the federal government has completely preempted the field of law which regulates organ transplantation. See Vaden v. Discover Bank, 129 S.Ct. 1262, 1273 (2009) ("A complaint purporting to rest on state law, we have recognized, can be recharacterized as one "arising under" federal law if the law governing the complaint is exclusively federal"). In sum, CORE contends that any lawsuit involving organ transplantation must necessarily arise under federal law. Plaintiffs contend that NOTA has not completely preempted the field of state negligence actions relating to organ donation. Plaintiffs further contend that this case could not have arisen under federal law because there is no federal private right of action in NOTA or the implementing regulations.

The Supreme Court has wrestled, in several recent cases, to articulate a principled basis for determining when a case raises such substantial federal questions that it may fairly be said to arise under federal law, and thus, be removed to federal court. In Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804 (1986), the Court held that a negligence action based on the theory that the drug manufacturer had violated a federal statute was not removable. The Court explained: the congressional determination that there should be no federal remedy for the violation of this federal statute is tantamount to a congressional conclusion that the presence of a claimed violation of the statute as an element of a state cause of action is insufficiently "substantial" to confer federal-question jurisdiction.

Id. at 814. The Merrell Dow Court found the "powerful federal interest" in insuring a uniform interpretation of ...

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