UNITED STATES DISTRICT COURT                            
                DISTRICT OF MINNESOTA                                

In re: BAIR HUGGER FORCED AIR           MDL No. 15-2666 (JNE/DTS)         
WARMING DEVICES PRODUCTS                ORDER                             
LIABILITY LITIGATION                                                      

This Document Relates to:                                                 
Case No. 23-cv-3071 (James George and Jomarie George v. 3M Company and Logan 
Health)                                                              

This case is before the Court on James George and Jomarie George’s Motion for 
Remand.  For the reasons set forth below, the Court grants the motion.    
The Georges brought this action in the Montana First Judicial District Court, 
Lewis and Clark County, against 3M Company and Logan Health.  Asserting that the 
United States District Court for the District of Montana “has original subject-matter 
jurisdiction under 

(a),” 3M removed the action from state court.  See 

, 1446.                                                     
In its Notice of Removal, 3M asserted that “[t]here is complete diversity of 
citizenship between all properly joined parties” and that “the amount in controversy 
exceeds the sum or value of $75,000, exclusive of interest and costs.”  3M stated that, 
“[a]t the time Plaintiffs commenced this civil action, and at all times since, 3M was and is 
a Delaware corporation with its principal place of business in Minnesota,” see 

 
§ 1332(c)(1); that the Georges are citizens of Montana; and that “[t]he Complaint does 
not plead the citizenship of Logan Health.”1  According to 3M, Logan Health’s 

1    In their Complaint, the Georges alleged that Logan Health “is a Montana 
healthcare provider entity with its offices and principal place of business in . . . 
Montana.”  In a disclosure statement filed after the removal, Logan Health stated that it 
citizenship should be disregarded because the Georges “fraudulently joined and 
fraudulently misjoined Logan Health.”  Cf. Jallad v. Madera, 

, 94 (3d 

Cir. 2019) (“Madera is a diverse party. Therefore, even if he had been fraudulently 
joined, his presence would not have destroyed jurisdiction, and he should not have been 
dismissed pursuant to that doctrine.”).  3M maintained that the Georges cannot establish a 
cause of action against Logan Health; that the Georges “have no real intention in good 
faith to prosecute the action against Logan Health”; and that, in the alternative, the 
Georges’ claims against Logan Health should be severed and remanded.      

After the removal, 3M moved “to stay all proceedings in this case . . . pending 
transfer of this case to the United States District Court for the District of Minnesota as 
part of In re Bair Hugger Forced Air Warming Devices Products Liability Litigation.”  
Logan Health moved for summary judgment.  The Georges moved to remand the action 
to state court.  Before the District of Montana heard the motions, the United States 

Judicial Panel on Multidistrict Litigation transferred the action to the District of 
Minnesota for inclusion in MDL No. 2666.  See 

.           
After the transfer, the Georges moved to remand the action to state court.2  They 
maintained that they did not fraudulently join Logan Health because they asserted viable 
claims against Logan Health and because they intend to pursue them.  The Georges 


“is organized under the laws of the State of Montana.”  See Fed. R. Civ. P. 7.1(a).  A 
database on the website of the Montana Secretary of State indicates that Logan Health is 
a Montana corporation.                                                    

2    The Georges asserted that their supporting memorandum “is verbatim the brief 
filed” in the District of Montana.”                                       
argued that severance is improper.  Finally, they sought an award of attorney’s fees and 
costs.  See 

 § 1447(c).                                                

3M opposed the Georges’ motion.  3M argued that the law of the Eighth Circuit 
applies to the motion; that Jomarie George’s claim, “one for loss of consortium,” is 
derivative of James George’s claim and “is not viable for the same reasons [his] is not 
viable”; and that the Georges fraudulently joined Logan Health because they lack a viable 
cause of action against Logan Health and because they “do not intend to pursue their 
claims against Logan Health.”  If the action is remanded, 3M asserted that the Georges’ 

request for an award of attorney’s fees and costs should be denied because “3M had an 
objectively reasonable basis for removal.”                                
Logan Health also opposed the Georges’ motion.  Logan Health asserted that it 
should be dismissed “as a fraudulently joined defendant.”  It “support[ed] 3M Co.’s 
opposition” and limited its response to “two key points.”  First, Logan Health stated that 

“there is no reasonable possibility that Montana would impose strict liability on [it] for 
using a disposable blanket to keep Mr. George warm during surgery.”  Second, Logan 
Health maintained that the Georges’ “failure to comply with the Montana Medical Legal 
Panel Act . . . bars their claim against Logan.”                          
“Except as otherwise expressly provided by Act of Congress, any civil action 

brought in a State court of which the district courts of the United States have original 
jurisdiction, may be removed by the defendant or the defendants, to the district court of 
the United States for the district and division embracing the place where such action is 
pending.”  Id. § 1441(a).  A district court has original jurisdiction of a civil action “where 
the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and 
costs, and is between . . . citizens of different States.”  Id. § 1332(a)(1).  “For a party to 

remove a case to federal court based on diversity jurisdiction, the parties must be diverse 
both when the plaintiff initiates the action in state court and when the defendant files the 
notice of removal in federal court.”  Reece v. Bank of N.Y. Mellon, 

 (8th 
Cir. 2014) (quoting Chavez-Lavagnino v. Motivation Educ. Training, Inc., 

 (8th Cir. 2013)).3  “[T]he party seeking removal has the burden to establish 
federal subject matter jurisdiction; all doubts about federal jurisdiction must be resolved 

in favor of remand.”  Cent. Iowa Power Coop. v. Midwest Indep. Transmission Sys. 
Operator, Inc., 

 (8th Cir. 2009) (citation omitted); see Hubbard v. 
Federated Mut. Ins. Co., 

 (8th Cir. 2015).             
“Whether a plaintiff has fraudulently joined a party to defeat diversity jurisdiction 
is a question of subject matter jurisdiction . . . .”  Wilkinson v. Shackelford, 

 (8th Cir. 2007).  “A party has been fraudulently joined when there exists no 
reasonable basis in fact and law to support a claim against it.”  Hubbard, 

 (quoting Thompson v. R.J. Reynolds Tobacco Co., 

 (8th Cir. 
2014)); see Johnson v. Midwest Div. - RBH, LLC, 

 (8th Cir. 2023).  “[I]f 
there is a ‘colorable’ cause of action—that is, if the state law might impose liability on 



3    “When a transferee court receives a case from the MDL Panel, the transferee court 
applies the law of the circuit in which it is located to issues of federal law.”  In re Gen. 
Am. Life Ins. Co. Sales Pracs. Litig., 

 (8th Cir. 2004). 
the resident defendant under the facts alleged—then there is no fraudulent joinder.”  Filla 
v. Norfolk S. Ry. Co., 

, 810 (8th Cir. 2003) (footnote omitted).   

“The doctrine of fraudulent joinder allows a district court to assume jurisdiction 
over a facially nondiverse case temporarily and, if there is no reasonable basis for the 
imposition of liability under state law, dismiss the nondiverse party from the case and 
retain subject matter jurisdiction over the remaining claims.”  Wivell v. Wells Fargo 
Bank, N.A., 

 (8th Cir. 2014) (quoting Murphy v. Aurora Loan Servs., 
LLC, 

 (8th Cir. 2012)).  “[T]he district court’s task is limited to 

determining whether there is arguably a reasonable basis for predicting that the state law 
might impose liability based upon the facts involved.  In making such a prediction, the 
district court should resolve all facts and ambiguities in the current controlling 
substantive law in the plaintiff’s favor.”  Filla, 336 F.3d at 811.  “[I]n its review of a 
fraudulent-joinder claim, the court has no responsibility to definitively settle the 

ambiguous question of state law.”  Id.  “[I]n situations where the sufficiency of the 
complaint against the non-diverse defendant is questionable, ‘the better practice is for the 
federal court not to decide the doubtful question in connection with a motion to remand 
but simply to remand the case and leave the question for the state courts to decide.’”  Id. 
(quoting Iowa Pub. Serv. Co. v. Med. Bow Coal Co., 

, 406 n.6 (8th Cir. 

1977)).  In certain circumstances, a court may “pierce the pleadings” to determine 
whether state law might impose liability on a nondiverse defendant.  Williams v. 
Homeland Ins. Co. of N.Y., 

, 812–13 (5th Cir. 2021); see GranCare, LLC v. 
Thrower ex rel. Mills, 

 (9th Cir. 2018); Casias v. Wal-Mart Stores, Inc., 

 (6th Cir. 2012).                                        

In their Complaint, the Georges alleged that “3M and its predecessors developed a 
sales plan that utilized hospitals . . . as sellers of the Bair Hugger in the stream of 
commerce”; that, “[u]nder the sales model, Defendant 3M and its predecessors would 
lease the Bair Hugger warming unit for very low cost to the hospital and would sell the 
disposable warming blanket to the hospital for use in surgery”; and that “[t]he hospital 
would then mark up (increase) the cost of the disposable warming blanket substantially 

and sell the product to the patient for use during the surgery.”  They also alleged that, in 
May 2016, “James George underwent surgery during which a Bair Hugger was used 
during a total knee replacement surgery performed at Logan Health”; that  
“[c]ontaminants introduced into [his] open surgical wound due to the defects in the Bair 
Hugger during the subject surgery resulted in [him] developing a periprosthetic joint 

infection”; and that, as a result of the infection, he “has undergone additional surgical 
procedures . . . and is at risk for further significant complications and loss of function.”  
They claimed that “Logan sold Plaintiff James George, for use by employees of Logan 
Hospital, a Bair Hugger blanket for use with the Bair Hugger patient warming system 
during his TKA”; that, “[a]s the retailer who sold the Bair Hugger blanket to the Plaintiff, 

Logan is a seller” under 

; that the Bair Hugger is defective 
under § 27-1-719 “because its use in a total joint replacement surgery is dangerous to an 
extent beyond that anticipated by the ordinary user or consumer”; that “[t]he defective 
condition of Bair Hugger was a substantial contributing factor and legal cause of the 
injuries sustained by Plaintiff”; and that “Logan, as seller of the medical device Bair 
Hugger, is strictly liable for the injuries and losses” experienced by the Georges.  The 

Georges alleged that “the discovery rule should be applied to toll the running of the 
statute of limitations until Plaintiff knew, or through the exercise of reasonable care and 
diligence should have known, of facts indicating that Plaintiff had been injured, the cause 
of the injury, and the tortious nature of the wrongdoing that cause the injury.”  The 
Georges claimed that “Plaintiff did not learn, nor through the exercise of reasonable care 
and diligence should have learned, that the infection, and the subsequent injuries that he 

suffered as a result, were caused by, or were related to, the use of the Bair Hugger 
warming system until 2022.”                                               
                         Seller                                      
3M and Logan Health asserted that the Georges lack a viable cause of action 
against Logan Health because Logan Health is not a “seller” under § 27-1-719, which 

states:                                                                   
          A person who sells a product in a defective condition      
     that is unreasonably dangerous to a user or consumer . . . is   
     liable for physical harm caused by the product to the ultimate  
     user or consumer . . . if . . . the seller is engaged in the    
     business of selling the product; and . . . the product is       
     expected to and does reach the user or consumer without         
     substantial change in the condition in which it is sold.        

(1).  “‘Seller’ means a manufacturer, wholesaler, or 
retailer.”  

 § 27-1-719(9)(d).  In cases similar to this one, two district courts in 
Montana concluded that a healthcare provider is not a “seller” within the meaning of 
§ 27-1-719.  See Meuchel v. Davol Inc., No. DV-18-34, slip op. at 9 (Mont. 4th Jud. Dist. 
Ct., Nov. 26, 2019) (“The Court follows jurisdictions that have determined that a hospital 
is a provider of medical services rather than a seller of a product and is not subject to 

strict liability for a defective product provided during the course of treatment.”); Rogers 
v. Bristol-Myers Squibb Co., No. DV 15-1204, 

, at *2 (Mont. 13th 
Jud. Dist. Ct., Oct. 13, 2017) (“The Court finds no compelling reason to deviate from the 
majority of courts that determine hospitals services to fall outside strict products liability 
statutes.”).  The District of Montana recently characterized a dispute about whether a 
hospital may be subject to a products liability claim as a “seller” under § 27-1-719 as 

“reasonable,” rejected the assertion that a nondiverse hospital was fraudulently joined, 
and remanded the action to state court.  Burr v. Johnson & Johnson, No. CV 23-35, 

 (D. Mont. June 28, 2023); see Meuchal v. Davol, Inc., No. CV 19-116, 

 (D. Mont. Aug. 19, 2019).  The Court concludes that there is 
“arguably a reasonable basis for predicting that the state law might impose liability based 

upon the facts involved.”  Filla, 336 F.3d at 811.  The Court leaves the issue of whether 
Logan Health is a “seller” within the meaning of § 27-1-719 to the Montana state courts 
to decide.  See id.                                                       
                        MMLPA                                        
3M and Logan Health argued that the Georges’ claims against Logan Health are 

barred because the Georges did not comply with the Montana Medical Legal Panel Act 
(“MMLPA”).  See 

.  3M asserted that the Georges “cannot 
maintain a cause of action against Logan Health because they did not file an application 
with the Montana Medical Legal Panel (MMLP) before initiating this action.”  In 
granting the plaintiff’s motion to remand in Meuchal, the District of Montana stated that 
“Montana has not ‘settled’ that a plaintiff must bring a products liability claim before the 

MMLP prior to filing a lawsuit.”  

, at *4.  After the action was 
remanded, the Montana Fourth Judicial District Court concluded that the plaintiff failed 
to state a claim against a medical facility based in part on its determinations that the 
plaintiff’s “strict liability claim against a hospital for furnishing a defective product 
within the practice of providing medical services is covered under the MMLPA” and that 
“the MMLPA was not complied with in this case.”  Meuchel, slip op. at 9.4  The Court 

concludes that there is “arguably a reasonable basis for predicting that the state law might 
impose liability based upon the facts involved.”  Filla, 336 F.3d at 811.  The Court leaves 
the issue of whether the Georges must comply with the MMLPA to pursue their claims 
against Logan Health to the Montana state courts to decide.  See id.      
                        Untimely                                     

“Courts have . . . recognized that a statute of limitations defense is properly 
considered in connection with a fraudulent joinder inquiry.”  In re Briscoe, 

 (3d Cir. 2006); see GranCare, LLC v. Thrower ex rel. Mills, 

 (9th 
Cir. 2018).  3M and the Georges disputed whether the Georges’ claims are subject to the 
limitation period of 

 or 

 and 

whether their claims are timely under either section.                     


4    The District of Montana and the Montana Fourth Judicial District Court use 
different spellings of the plaintiff’s last name.                         
“[T]he period prescribed for the commencement of an action upon a liability not 
founded upon an instrument in writing is within 3 years.”  

-

204(1).  Section 27-2-205 provides a 2-year limitation period for certain actions against a 
licensed hospital:                                                        
          Action in tort or contract for injury or death against . . . 
     a licensed hospital . . . , based upon alleged professional     
     negligence or for rendering professional services without       
     consent or for an act, error, or omission, must . . . be        
     commenced within 2 years after the date of injury or within 2   
     years after the plaintiff discovers or through the use of       
     reasonable diligence should have discovered the injury,         
     whichever occurs last, but in no case may an action be          
     commenced after 5 years from the date of injury.  However,      
     this time limitation is tolled for any period during which there 
     has been a failure to disclose any act, error, or omission upon 
     which an action is based and that is known to the defendant or  
     through the use of reasonable diligence subsequent to the act,  
     error, or omission would have been known to the defendant.      

 § 27-2-205(1).                                                        
“[A] claim or cause of action accrues when all elements of the claim or cause exist 
or have occurred, the right to maintain an action on the claim or cause is complete, and a 
court or other agency is authorized to accept jurisdiction of the action.”  Id. § 27-2-
102(1)(a).  “Unless otherwise provided by statute, the period of limitation begins when 
the claim or cause of action accrues.  Lack of knowledge of the claim or cause of action, 
or of its accrual, by the party to whom it has accrued does not postpone the beginning of 
the period of limitation.”  Id. § 27-2-102(2).  If “the facts constituting the claim are by 
their nature concealed or self-concealing,” “[t]he period of limitation does not begin on 
any claim or cause of action for an injury to person or property until the facts constituting 
the claim have been discovered or, in the exercise of due diligence, should have been 
discovered by the injured party.”  Id. § 27-2-102(3).  Section 27-2-102(3) “does not apply 

to actions involving the limitations contained in 27-2-205.”  Id. § 27-2-102(4). 
The Court concludes that there is “arguably a reasonable basis for predicting that 
the state law might impose liability based upon the facts involved.”  Filla, 336 F.3d at 
811; see Selensky-Foust, 

, 83 (Mont. 2022); Blackburn v. Blue Mountain 
Women’s Clinic, 

 (Mont. 1997).  The Court leaves the issue of whether the 
Georges’ claims against Logan Health are timely to the Montana state courts to decide.  

See Filla, 336 F.3d at 811.                                               
                    Intent to Prosecute                              
3M contended that the Georges fraudulently joined Logan Health because they do 
not intend to prosecute their claims against Logan Health.  In support, 3M stated that the 
Georges “did not file the required application with the [MMLP] prior to initiating their 

suit against Logan Health” and that they “delayed in bringing their claims against Logan 
Health until after the statute of limitations expired.”  3M also cited other Bair Hugger 
cases in which the plaintiffs dismissed claims against medical providers before trial.  The 
Court assumes without deciding that a plaintiff’s lack of real intention to pursue a claim 
against a defendant may be a basis of fraudulent joinder.  3M has not demonstrated that 

the Georges lack any real intention to pursue their claims against Logan Health. 
                       Conclusion                                    
The Georges did not fraudulently join Logan Health.  Thus, the Court lacks 
subject-matter jurisdiction and remands the action to state court.  See 

(c).  The Court denies the Georges’ request for an award of attorney’s fees and 
costs.  See Martin v. Franklin Capital Corp., 

 (2005).   

Based on the files, records, and proceedings herein, and for the reasons stated 
above, IT IS ORDERED THAT:                                                
1.   The Georges’ Motion for Remand [Docket No. 52] is GRANTED.      
2.   Case No. 23-cv-3071 is REMANDED to the Montana First Judicial District 
     Court, Lewis and Clark County.                                  
3.   The Clerk of Court is directed to mail a certified copy of this Order to: 
     Angie Sparks                                                    
     Clerk of Court                                                  
     Montana First Judicial District Court, Lewis & Clark County     
     228 E. Broadway St.                                             
     Helena, MT  59601                                               

Dated: June 13, 2024                                                      
                                   s/Joan N. Ericksen                
                                   JOAN N. ERICKSEN                  
                                   United States District Judge      

             UNITED STATES DISTRICT COURT                            
                DISTRICT OF MINNESOTA                                

In re: BAIR HUGGER FORCED AIR           MDL No. 15-2666 (JNE/DTS)         
WARMING DEVICES PRODUCTS                ORDER                             
LIABILITY LITIGATION                                                      

This Document Relates to:                                                 
Case No. 23-cv-3071 (James George and Jomarie George v. 3M Company and Logan 
Health)                                                              

This case is before the Court on James George and Jomarie George’s Motion for 
Remand.  For the reasons set forth below, the Court grants the motion.    
The Georges brought this action in the Montana First Judicial District Court, 
Lewis and Clark County, against 3M Company and Logan Health.  Asserting that the 
United States District Court for the District of Montana “has original subject-matter 
jurisdiction under 

(a),” 3M removed the action from state court.  See 

, 1446.                                                     
In its Notice of Removal, 3M asserted that “[t]here is complete diversity of 
citizenship between all properly joined parties” and that “the amount in controversy 
exceeds the sum or value of $75,000, exclusive of interest and costs.”  3M stated that, 
“[a]t the time Plaintiffs commenced this civil action, and at all times since, 3M was and is 
a Delaware corporation with its principal place of business in Minnesota,” see 

 
§ 1332(c)(1); that the Georges are citizens of Montana; and that “[t]he Complaint does 
not plead the citizenship of Logan Health.”1  According to 3M, Logan Health’s 

1    In their Complaint, the Georges alleged that Logan Health “is a Montana 
healthcare provider entity with its offices and principal place of business in . . . 
Montana.”  In a disclosure statement filed after the removal, Logan Health stated that it 
citizenship should be disregarded because the Georges “fraudulently joined and 
fraudulently misjoined Logan Health.”  Cf. Jallad v. Madera, 

, 94 (3d 

Cir. 2019) (“Madera is a diverse party. Therefore, even if he had been fraudulently 
joined, his presence would not have destroyed jurisdiction, and he should not have been 
dismissed pursuant to that doctrine.”).  3M maintained that the Georges cannot establish a 
cause of action against Logan Health; that the Georges “have no real intention in good 
faith to prosecute the action against Logan Health”; and that, in the alternative, the 
Georges’ claims against Logan Health should be severed and remanded.      

After the removal, 3M moved “to stay all proceedings in this case . . . pending 
transfer of this case to the United States District Court for the District of Minnesota as 
part of In re Bair Hugger Forced Air Warming Devices Products Liability Litigation.”  
Logan Health moved for summary judgment.  The Georges moved to remand the action 
to state court.  Before the District of Montana heard the motions, the United States 

Judicial Panel on Multidistrict Litigation transferred the action to the District of 
Minnesota for inclusion in MDL No. 2666.  See 

.           
After the transfer, the Georges moved to remand the action to state court.2  They 
maintained that they did not fraudulently join Logan Health because they asserted viable 
claims against Logan Health and because they intend to pursue them.  The Georges 


“is organized under the laws of the State of Montana.”  See Fed. R. Civ. P. 7.1(a).  A 
database on the website of the Montana Secretary of State indicates that Logan Health is 
a Montana corporation.                                                    

2    The Georges asserted that their supporting memorandum “is verbatim the brief 
filed” in the District of Montana.”                                       
argued that severance is improper.  Finally, they sought an award of attorney’s fees and 
costs.  See 

 § 1447(c).                                                

3M opposed the Georges’ motion.  3M argued that the law of the Eighth Circuit 
applies to the motion; that Jomarie George’s claim, “one for loss of consortium,” is 
derivative of James George’s claim and “is not viable for the same reasons [his] is not 
viable”; and that the Georges fraudulently joined Logan Health because they lack a viable 
cause of action against Logan Health and because they “do not intend to pursue their 
claims against Logan Health.”  If the action is remanded, 3M asserted that the Georges’ 

request for an award of attorney’s fees and costs should be denied because “3M had an 
objectively reasonable basis for removal.”                                
Logan Health also opposed the Georges’ motion.  Logan Health asserted that it 
should be dismissed “as a fraudulently joined defendant.”  It “support[ed] 3M Co.’s 
opposition” and limited its response to “two key points.”  First, Logan Health stated that 

“there is no reasonable possibility that Montana would impose strict liability on [it] for 
using a disposable blanket to keep Mr. George warm during surgery.”  Second, Logan 
Health maintained that the Georges’ “failure to comply with the Montana Medical Legal 
Panel Act . . . bars their claim against Logan.”                          
“Except as otherwise expressly provided by Act of Congress, any civil action 

brought in a State court of which the district courts of the United States have original 
jurisdiction, may be removed by the defendant or the defendants, to the district court of 
the United States for the district and division embracing the place where such action is 
pending.”  Id. § 1441(a).  A district court has original jurisdiction of a civil action “where 
the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and 
costs, and is between . . . citizens of different States.”  Id. § 1332(a)(1).  “For a party to 

remove a case to federal court based on diversity jurisdiction, the parties must be diverse 
both when the plaintiff initiates the action in state court and when the defendant files the 
notice of removal in federal court.”  Reece v. Bank of N.Y. Mellon, 

 (8th 
Cir. 2014) (quoting Chavez-Lavagnino v. Motivation Educ. Training, Inc., 

 (8th Cir. 2013)).3  “[T]he party seeking removal has the burden to establish 
federal subject matter jurisdiction; all doubts about federal jurisdiction must be resolved 

in favor of remand.”  Cent. Iowa Power Coop. v. Midwest Indep. Transmission Sys. 
Operator, Inc., 

 (8th Cir. 2009) (citation omitted); see Hubbard v. 
Federated Mut. Ins. Co., 

 (8th Cir. 2015).             
“Whether a plaintiff has fraudulently joined a party to defeat diversity jurisdiction 
is a question of subject matter jurisdiction . . . .”  Wilkinson v. Shackelford, 

 (8th Cir. 2007).  “A party has been fraudulently joined when there exists no 
reasonable basis in fact and law to support a claim against it.”  Hubbard, 

 (quoting Thompson v. R.J. Reynolds Tobacco Co., 

 (8th Cir. 
2014)); see Johnson v. Midwest Div. - RBH, LLC, 

 (8th Cir. 2023).  “[I]f 
there is a ‘colorable’ cause of action—that is, if the state law might impose liability on 



3    “When a transferee court receives a case from the MDL Panel, the transferee court 
applies the law of the circuit in which it is located to issues of federal law.”  In re Gen. 
Am. Life Ins. Co. Sales Pracs. Litig., 

 (8th Cir. 2004). 
the resident defendant under the facts alleged—then there is no fraudulent joinder.”  Filla 
v. Norfolk S. Ry. Co., 

, 810 (8th Cir. 2003) (footnote omitted).   

“The doctrine of fraudulent joinder allows a district court to assume jurisdiction 
over a facially nondiverse case temporarily and, if there is no reasonable basis for the 
imposition of liability under state law, dismiss the nondiverse party from the case and 
retain subject matter jurisdiction over the remaining claims.”  Wivell v. Wells Fargo 
Bank, N.A., 

 (8th Cir. 2014) (quoting Murphy v. Aurora Loan Servs., 
LLC, 

 (8th Cir. 2012)).  “[T]he district court’s task is limited to 

determining whether there is arguably a reasonable basis for predicting that the state law 
might impose liability based upon the facts involved.  In making such a prediction, the 
district court should resolve all facts and ambiguities in the current controlling 
substantive law in the plaintiff’s favor.”  Filla, 336 F.3d at 811.  “[I]n its review of a 
fraudulent-joinder claim, the court has no responsibility to definitively settle the 

ambiguous question of state law.”  Id.  “[I]n situations where the sufficiency of the 
complaint against the non-diverse defendant is questionable, ‘the better practice is for the 
federal court not to decide the doubtful question in connection with a motion to remand 
but simply to remand the case and leave the question for the state courts to decide.’”  Id. 
(quoting Iowa Pub. Serv. Co. v. Med. Bow Coal Co., 

, 406 n.6 (8th Cir. 

1977)).  In certain circumstances, a court may “pierce the pleadings” to determine 
whether state law might impose liability on a nondiverse defendant.  Williams v. 
Homeland Ins. Co. of N.Y., 

, 812–13 (5th Cir. 2021); see GranCare, LLC v. 
Thrower ex rel. Mills, 

 (9th Cir. 2018); Casias v. Wal-Mart Stores, Inc., 

 (6th Cir. 2012).                                        

In their Complaint, the Georges alleged that “3M and its predecessors developed a 
sales plan that utilized hospitals . . . as sellers of the Bair Hugger in the stream of 
commerce”; that, “[u]nder the sales model, Defendant 3M and its predecessors would 
lease the Bair Hugger warming unit for very low cost to the hospital and would sell the 
disposable warming blanket to the hospital for use in surgery”; and that “[t]he hospital 
would then mark up (increase) the cost of the disposable warming blanket substantially 

and sell the product to the patient for use during the surgery.”  They also alleged that, in 
May 2016, “James George underwent surgery during which a Bair Hugger was used 
during a total knee replacement surgery performed at Logan Health”; that  
“[c]ontaminants introduced into [his] open surgical wound due to the defects in the Bair 
Hugger during the subject surgery resulted in [him] developing a periprosthetic joint 

infection”; and that, as a result of the infection, he “has undergone additional surgical 
procedures . . . and is at risk for further significant complications and loss of function.”  
They claimed that “Logan sold Plaintiff James George, for use by employees of Logan 
Hospital, a Bair Hugger blanket for use with the Bair Hugger patient warming system 
during his TKA”; that, “[a]s the retailer who sold the Bair Hugger blanket to the Plaintiff, 

Logan is a seller” under 

; that the Bair Hugger is defective 
under § 27-1-719 “because its use in a total joint replacement surgery is dangerous to an 
extent beyond that anticipated by the ordinary user or consumer”; that “[t]he defective 
condition of Bair Hugger was a substantial contributing factor and legal cause of the 
injuries sustained by Plaintiff”; and that “Logan, as seller of the medical device Bair 
Hugger, is strictly liable for the injuries and losses” experienced by the Georges.  The 

Georges alleged that “the discovery rule should be applied to toll the running of the 
statute of limitations until Plaintiff knew, or through the exercise of reasonable care and 
diligence should have known, of facts indicating that Plaintiff had been injured, the cause 
of the injury, and the tortious nature of the wrongdoing that cause the injury.”  The 
Georges claimed that “Plaintiff did not learn, nor through the exercise of reasonable care 
and diligence should have learned, that the infection, and the subsequent injuries that he 

suffered as a result, were caused by, or were related to, the use of the Bair Hugger 
warming system until 2022.”                                               
                         Seller                                      
3M and Logan Health asserted that the Georges lack a viable cause of action 
against Logan Health because Logan Health is not a “seller” under § 27-1-719, which 

states:                                                                   
          A person who sells a product in a defective condition      
     that is unreasonably dangerous to a user or consumer . . . is   
     liable for physical harm caused by the product to the ultimate  
     user or consumer . . . if . . . the seller is engaged in the    
     business of selling the product; and . . . the product is       
     expected to and does reach the user or consumer without         
     substantial change in the condition in which it is sold.        

(1).  “‘Seller’ means a manufacturer, wholesaler, or 
retailer.”  

 § 27-1-719(9)(d).  In cases similar to this one, two district courts in 
Montana concluded that a healthcare provider is not a “seller” within the meaning of 
§ 27-1-719.  See Meuchel v. Davol Inc., No. DV-18-34, slip op. at 9 (Mont. 4th Jud. Dist. 
Ct., Nov. 26, 2019) (“The Court follows jurisdictions that have determined that a hospital 
is a provider of medical services rather than a seller of a product and is not subject to 

strict liability for a defective product provided during the course of treatment.”); Rogers 
v. Bristol-Myers Squibb Co., No. DV 15-1204, 

, at *2 (Mont. 13th 
Jud. Dist. Ct., Oct. 13, 2017) (“The Court finds no compelling reason to deviate from the 
majority of courts that determine hospitals services to fall outside strict products liability 
statutes.”).  The District of Montana recently characterized a dispute about whether a 
hospital may be subject to a products liability claim as a “seller” under § 27-1-719 as 

“reasonable,” rejected the assertion that a nondiverse hospital was fraudulently joined, 
and remanded the action to state court.  Burr v. Johnson & Johnson, No. CV 23-35, 

 (D. Mont. June 28, 2023); see Meuchal v. Davol, Inc., No. CV 19-116, 

 (D. Mont. Aug. 19, 2019).  The Court concludes that there is 
“arguably a reasonable basis for predicting that the state law might impose liability based 

upon the facts involved.”  Filla, 336 F.3d at 811.  The Court leaves the issue of whether 
Logan Health is a “seller” within the meaning of § 27-1-719 to the Montana state courts 
to decide.  See id.                                                       
                        MMLPA                                        
3M and Logan Health argued that the Georges’ claims against Logan Health are 

barred because the Georges did not comply with the Montana Medical Legal Panel Act 
(“MMLPA”).  See 

.  3M asserted that the Georges “cannot 
maintain a cause of action against Logan Health because they did not file an application 
with the Montana Medical Legal Panel (MMLP) before initiating this action.”  In 
granting the plaintiff’s motion to remand in Meuchal, the District of Montana stated that 
“Montana has not ‘settled’ that a plaintiff must bring a products liability claim before the 

MMLP prior to filing a lawsuit.”  

, at *4.  After the action was 
remanded, the Montana Fourth Judicial District Court concluded that the plaintiff failed 
to state a claim against a medical facility based in part on its determinations that the 
plaintiff’s “strict liability claim against a hospital for furnishing a defective product 
within the practice of providing medical services is covered under the MMLPA” and that 
“the MMLPA was not complied with in this case.”  Meuchel, slip op. at 9.4  The Court 

concludes that there is “arguably a reasonable basis for predicting that the state law might 
impose liability based upon the facts involved.”  Filla, 336 F.3d at 811.  The Court leaves 
the issue of whether the Georges must comply with the MMLPA to pursue their claims 
against Logan Health to the Montana state courts to decide.  See id.      
                        Untimely                                     

“Courts have . . . recognized that a statute of limitations defense is properly 
considered in connection with a fraudulent joinder inquiry.”  In re Briscoe, 

 (3d Cir. 2006); see GranCare, LLC v. Thrower ex rel. Mills, 

 (9th 
Cir. 2018).  3M and the Georges disputed whether the Georges’ claims are subject to the 
limitation period of 

 or 

 and 

whether their claims are timely under either section.                     


4    The District of Montana and the Montana Fourth Judicial District Court use 
different spellings of the plaintiff’s last name.                         
“[T]he period prescribed for the commencement of an action upon a liability not 
founded upon an instrument in writing is within 3 years.”  

-

204(1).  Section 27-2-205 provides a 2-year limitation period for certain actions against a 
licensed hospital:                                                        
          Action in tort or contract for injury or death against . . . 
     a licensed hospital . . . , based upon alleged professional     
     negligence or for rendering professional services without       
     consent or for an act, error, or omission, must . . . be        
     commenced within 2 years after the date of injury or within 2   
     years after the plaintiff discovers or through the use of       
     reasonable diligence should have discovered the injury,         
     whichever occurs last, but in no case may an action be          
     commenced after 5 years from the date of injury.  However,      
     this time limitation is tolled for any period during which there 
     has been a failure to disclose any act, error, or omission upon 
     which an action is based and that is known to the defendant or  
     through the use of reasonable diligence subsequent to the act,  
     error, or omission would have been known to the defendant.      

 § 27-2-205(1).                                                        
“[A] claim or cause of action accrues when all elements of the claim or cause exist 
or have occurred, the right to maintain an action on the claim or cause is complete, and a 
court or other agency is authorized to accept jurisdiction of the action.”  Id. § 27-2-
102(1)(a).  “Unless otherwise provided by statute, the period of limitation begins when 
the claim or cause of action accrues.  Lack of knowledge of the claim or cause of action, 
or of its accrual, by the party to whom it has accrued does not postpone the beginning of 
the period of limitation.”  Id. § 27-2-102(2).  If “the facts constituting the claim are by 
their nature concealed or self-concealing,” “[t]he period of limitation does not begin on 
any claim or cause of action for an injury to person or property until the facts constituting 
the claim have been discovered or, in the exercise of due diligence, should have been 
discovered by the injured party.”  Id. § 27-2-102(3).  Section 27-2-102(3) “does not apply 

to actions involving the limitations contained in 27-2-205.”  Id. § 27-2-102(4). 
The Court concludes that there is “arguably a reasonable basis for predicting that 
the state law might impose liability based upon the facts involved.”  Filla, 336 F.3d at 
811; see Selensky-Foust, 

, 83 (Mont. 2022); Blackburn v. Blue Mountain 
Women’s Clinic, 

 (Mont. 1997).  The Court leaves the issue of whether the 
Georges’ claims against Logan Health are timely to the Montana state courts to decide.  

See Filla, 336 F.3d at 811.                                               
                    Intent to Prosecute                              
3M contended that the Georges fraudulently joined Logan Health because they do 
not intend to prosecute their claims against Logan Health.  In support, 3M stated that the 
Georges “did not file the required application with the [MMLP] prior to initiating their 

suit against Logan Health” and that they “delayed in bringing their claims against Logan 
Health until after the statute of limitations expired.”  3M also cited other Bair Hugger 
cases in which the plaintiffs dismissed claims against medical providers before trial.  The 
Court assumes without deciding that a plaintiff’s lack of real intention to pursue a claim 
against a defendant may be a basis of fraudulent joinder.  3M has not demonstrated that 

the Georges lack any real intention to pursue their claims against Logan Health. 
                       Conclusion                                    
The Georges did not fraudulently join Logan Health.  Thus, the Court lacks 
subject-matter jurisdiction and remands the action to state court.  See 

(c).  The Court denies the Georges’ request for an award of attorney’s fees and 
costs.  See Martin v. Franklin Capital Corp., 

 (2005).   

Based on the files, records, and proceedings herein, and for the reasons stated 
above, IT IS ORDERED THAT:                                                
1.   The Georges’ Motion for Remand [Docket No. 52] is GRANTED.      
2.   Case No. 23-cv-3071 is REMANDED to the Montana First Judicial District 
     Court, Lewis and Clark County.                                  
3.   The Clerk of Court is directed to mail a certified copy of this Order to: 
     Angie Sparks                                                    
     Clerk of Court                                                  
     Montana First Judicial District Court, Lewis & Clark County     
     228 E. Broadway St.                                             
     Helena, MT  59601                                               

Dated: June 13, 2024                                                      
                                   s/Joan N. Ericksen                
                                   JOAN N. ERICKSEN                  
                                   United States District Judge