Back up the Flagg pole: Fifth Circuit to reconsider improper joinder case en banc after panel votes to remand

Butler Snow LLP
Contact

We wrote a while back that the Fifth Circuit held that failure to exhaust a state law pre-suit medical panel review process did not subject the plaintiff’s claims against the non-diverse healthcare provider defendants to dismissal, thus allowing that defendant’s citizenship to be considered for diversity (and thus destroying complete diversity).

Defendants Stryker and Memometal petitioned for rehearing en banc in late September. A majority of the Fifth Circuit judges voted in favor of rehearing en banc, which vacated the original panel decision and sets up a briefing schedule for the en banc rehearing.

The rehearing petition focused on the policy ramifications of the panel’s decision: that allowing suits to proceed against non-diverse Louisiana healthcare providers even when the pre-suit review process has not been completed will subject many Louisiana physicians, and innocent ones, to being sued in order to defeat removal. That brief also noted the federalism concerns about the federal courts not giving appropriate deference to a Louisiana statute (especially when the courts apply similar federal statutes with the proper force).

The en banc briefing should be completed in early January 2016, with oral argument tentatively scheduled for the week of January 18. Keep checking in with us on updates on this remarkable removal/remand question.

Written by:

Butler Snow LLP
Contact
more
less

Butler Snow LLP on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.