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-3072 (Rickey Barry v. 3M Company and RCHP Billings-Missoula, LLC) 

This case is before the Court on Rickey Barry’s Motion for Remand.  For the 
reasons set forth below, the Court grants the motion.                     
Barry brought this action in the Montana First Judicial District Court, Lewis and 
Clark County, against 3M Company and CMC Missoula, Inc.  In an amended complaint, 
he named 3M and RCHP Billings-Missoula, LLC, as defendants.  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 with 
RCHP’s consent.  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 Plaintiff 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 Barry is a citizen of Montana; and that “[t]he Complaint does not plead 
the citizenship of [RCHP].”1  According to 3M, RCHP’s citizenship should be 

1    In his amended complaint, Barry alleged that RCHP “is a Montana healthcare 
provider entity with its offices and principal place of business in . . . Montana.”  After the 
disregarded because Barry “fraudulently joined and fraudulently misjoined [RCHP].”  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 Barry cannot establish a cause of action against RCHP; 
that Barry “has no real intention in good faith to prosecute the action against [RCHP]”; 
and that, in the alternative, Barry’s claims against RCHP should be severed and 
remanded.                                                                 

After the removal, RCHP moved for summary judgment.2  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.”  Barry moved to remand the action to state court.  
Stating that RCHP’s motion “does not comply with [its] rules,” the District of Montana 


action was transferred to the District of Minnesota, the Court ordered RCHP to file a 
disclosure statement under Rule 7.1(a)(2) of the Federal Rules of Civil Procedure.  RCHP 
did not comply.  Instead of filing a “statement that name[s]—and identif[ies] the 
citizenship of—every individual or entity whose citizenship is attributed to” it, Fed. R. 
Civ. P. 7.1(a)(2); see OnePoint Sols., LLC v. Borchert, 

 (8th Cir. 2007) 
(“An LLC’s citizenship, for purposes of diversity jurisdiction, is the citizenship of each 
of its members.”), RCHP filed a “corporate disclosure statement,” which certifies that 
RCHP “is a non-governmental corporate party,” that RCHP “does not have any parent 
corporations,” and that “no publicly-held corporation owns 10% or more of [RCHP’s] 
stock.”  Barry responded by noting that RCHP failed to submit a disclosure statement 
under Rule 7.1(a)(2) and by submitting information that indicates RCHP’s membership, 
as of a few weeks before Barry commenced this action, included a citizen of Montana. 

2    When it filed its motion for summary judgment, RCHP did not file a disclosure 
statement.  See Fed. R. Civ. P. 7.1(b)(1).                                
denied RCHP’s motion for summary judgment.  RCHP filed another motion for summary 
judgment.  Before the District of Montana heard 3M’s motion to stay, Barry’s motion to 

remand, and RCHP’s motion for summary judgment, 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, Barry moved to remand the action to state court.3  He argued 
that he did not fraudulently join RCHP because he asserted viable claims against RCHP 
and because he intends to prosecute his cause of action against RCHP.  Barry maintained 

that severance is improper.  Finally, he sought an award of attorney’s fees and costs.  See 

 § 1447(c).                                                            
3M opposed Barry’s motion.4  3M argued that the law of the Eighth Circuit 
applies to Barry’s motion and that Barry fraudulently joined RCHP because he lacks a 
viable cause of action against RCHP and because he “does not intend to pursue his claims 

against [RCHP].”  If the action is remanded, 3M asserted that Barry’s request for an 
award of attorney’s fees and costs should be denied because “3M had an objectively 
reasonable basis for removal.”                                            



3    Barry stated that his supporting memorandum “is verbatim the brief filed” in the 
District of Montana.                                                      

4    Without permission, RCHP filed a memorandum in opposition to Barry’s motion 
months after the deadline.  RCHP cited “some issue with getting counsel set up with ECF 
in the new jurisdiction” to explain its failure to timely respond to Barry’s motion.  The 
Court disregards RCHP’s untimely response to Barry’s motion and denies as moot 
Barry’s motion to strike it.  See Fed. R. Civ. P. 6(b)(1); D. Minn. LR 7.1(g). 
“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)).5  “[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 


5    “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). 
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 
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 his amended complaint, Barry 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.”  He also alleged that, in 
February 2018, he “underwent surgery during which a Bair Hugger was used during a 

total hip replacement surgery performed at [RCHP]”; 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 a significant number of additional surgical 
procedures” and “is at significant risk for further complications and loss of function.”  

Barry claimed that RCHP “sold [him], for use by employees of [RCHP], a Bair Hugger 
blanket for use with the Bair Hugger patient warming system during his THA”; that, “[a]s 
the retailer who sold the Bair Hugger blanket to [him], [RCHP] 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 [him]”; and 
that RCHP, “as seller of the medical device Bair Hugger, is strictly liable for the injuries 
and losses” experienced by him.  Barry alleged that “the discovery rule should be applied 
to toll the running of the statute of limitations until [he] knew, or through the exercise of 
reasonable care and diligence should have known, of facts indicating that [he] had been 
injured, the cause of the injury, and the tortious nature of the wrongdoing that caused the 

injury.”  He claimed that he “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 asserted that Barry lacks a viable cause of action RCHP because RCHP 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 
RCHP is a “seller” within the meaning of § 27-1-719 to the Montana state courts to 
decide.  See id.                                                          
                        MMLPA                                        

3M argued that Barry’s claim against RCHP is barred because Barry did not 
comply with the Montana Medical Legal Panel Act (“MMLPA”).  See 

.  3M asserted that Barry “cannot maintain a cause of action against [RCHP] 
because he 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 9.6  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 Barry must comply with 
the MMLPA to pursue his claim against RCHP 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 Barry disputed whether Barry’s claim against RCHP is subject to the 




6    The District of Montana and the Montana Fourth Judicial District Court use 
different spellings of the plaintiff’s last name.                         
limitation period of 

 or 

 and 
whether his claim is timely under either section.                         

“[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 
Barry’s claim against RCHP is timely to the Montana state courts to decide.  See Filla, 
336 F.3d at 811.                                                          
                    Intent to Prosecute                              
3M contended that Barry fraudulently joined RCHP because he does not intend to 

prosecute his claim against RCHP.  In support, 3M stated that Barry “did not file the 
required application with the [MMLP] prior to initiating his suit against [RCHP]” and 
that he “delayed in bringing his claims against [RCHP] 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 Barry lacks any real 
intention to pursue his claim against RCHP.                               
                       Conclusion                                    
Barry did not fraudulently join RCHP.  Thus, the Court lacks subject-matter 

jurisdiction and remands the action to state court.  See 

(c).  The Court 
denies Barry’s 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.   Barry’s Motion for Remand [Docket No. 55] is GRANTED.           
2.   Barry’s motion to strike [Docket No. 67] is DENIED AS MOOT.     
3.   Case No. 23-cv-3072 is REMANDED to the Montana First Judicial District 
     Court, Lewis and Clark County.                                  
4.   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-3072 (Rickey Barry v. 3M Company and RCHP Billings-Missoula, LLC) 

This case is before the Court on Rickey Barry’s Motion for Remand.  For the 
reasons set forth below, the Court grants the motion.                     
Barry brought this action in the Montana First Judicial District Court, Lewis and 
Clark County, against 3M Company and CMC Missoula, Inc.  In an amended complaint, 
he named 3M and RCHP Billings-Missoula, LLC, as defendants.  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 with 
RCHP’s consent.  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 Plaintiff 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 Barry is a citizen of Montana; and that “[t]he Complaint does not plead 
the citizenship of [RCHP].”1  According to 3M, RCHP’s citizenship should be 

1    In his amended complaint, Barry alleged that RCHP “is a Montana healthcare 
provider entity with its offices and principal place of business in . . . Montana.”  After the 
disregarded because Barry “fraudulently joined and fraudulently misjoined [RCHP].”  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 Barry cannot establish a cause of action against RCHP; 
that Barry “has no real intention in good faith to prosecute the action against [RCHP]”; 
and that, in the alternative, Barry’s claims against RCHP should be severed and 
remanded.                                                                 

After the removal, RCHP moved for summary judgment.2  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.”  Barry moved to remand the action to state court.  
Stating that RCHP’s motion “does not comply with [its] rules,” the District of Montana 


action was transferred to the District of Minnesota, the Court ordered RCHP to file a 
disclosure statement under Rule 7.1(a)(2) of the Federal Rules of Civil Procedure.  RCHP 
did not comply.  Instead of filing a “statement that name[s]—and identif[ies] the 
citizenship of—every individual or entity whose citizenship is attributed to” it, Fed. R. 
Civ. P. 7.1(a)(2); see OnePoint Sols., LLC v. Borchert, 

 (8th Cir. 2007) 
(“An LLC’s citizenship, for purposes of diversity jurisdiction, is the citizenship of each 
of its members.”), RCHP filed a “corporate disclosure statement,” which certifies that 
RCHP “is a non-governmental corporate party,” that RCHP “does not have any parent 
corporations,” and that “no publicly-held corporation owns 10% or more of [RCHP’s] 
stock.”  Barry responded by noting that RCHP failed to submit a disclosure statement 
under Rule 7.1(a)(2) and by submitting information that indicates RCHP’s membership, 
as of a few weeks before Barry commenced this action, included a citizen of Montana. 

2    When it filed its motion for summary judgment, RCHP did not file a disclosure 
statement.  See Fed. R. Civ. P. 7.1(b)(1).                                
denied RCHP’s motion for summary judgment.  RCHP filed another motion for summary 
judgment.  Before the District of Montana heard 3M’s motion to stay, Barry’s motion to 

remand, and RCHP’s motion for summary judgment, 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, Barry moved to remand the action to state court.3  He argued 
that he did not fraudulently join RCHP because he asserted viable claims against RCHP 
and because he intends to prosecute his cause of action against RCHP.  Barry maintained 

that severance is improper.  Finally, he sought an award of attorney’s fees and costs.  See 

 § 1447(c).                                                            
3M opposed Barry’s motion.4  3M argued that the law of the Eighth Circuit 
applies to Barry’s motion and that Barry fraudulently joined RCHP because he lacks a 
viable cause of action against RCHP and because he “does not intend to pursue his claims 

against [RCHP].”  If the action is remanded, 3M asserted that Barry’s request for an 
award of attorney’s fees and costs should be denied because “3M had an objectively 
reasonable basis for removal.”                                            



3    Barry stated that his supporting memorandum “is verbatim the brief filed” in the 
District of Montana.                                                      

4    Without permission, RCHP filed a memorandum in opposition to Barry’s motion 
months after the deadline.  RCHP cited “some issue with getting counsel set up with ECF 
in the new jurisdiction” to explain its failure to timely respond to Barry’s motion.  The 
Court disregards RCHP’s untimely response to Barry’s motion and denies as moot 
Barry’s motion to strike it.  See Fed. R. Civ. P. 6(b)(1); D. Minn. LR 7.1(g). 
“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)).5  “[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 


5    “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). 
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 
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 his amended complaint, Barry 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.”  He also alleged that, in 
February 2018, he “underwent surgery during which a Bair Hugger was used during a 

total hip replacement surgery performed at [RCHP]”; 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 a significant number of additional surgical 
procedures” and “is at significant risk for further complications and loss of function.”  

Barry claimed that RCHP “sold [him], for use by employees of [RCHP], a Bair Hugger 
blanket for use with the Bair Hugger patient warming system during his THA”; that, “[a]s 
the retailer who sold the Bair Hugger blanket to [him], [RCHP] 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 [him]”; and 
that RCHP, “as seller of the medical device Bair Hugger, is strictly liable for the injuries 
and losses” experienced by him.  Barry alleged that “the discovery rule should be applied 
to toll the running of the statute of limitations until [he] knew, or through the exercise of 
reasonable care and diligence should have known, of facts indicating that [he] had been 
injured, the cause of the injury, and the tortious nature of the wrongdoing that caused the 

injury.”  He claimed that he “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 asserted that Barry lacks a viable cause of action RCHP because RCHP 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 
RCHP is a “seller” within the meaning of § 27-1-719 to the Montana state courts to 
decide.  See id.                                                          
                        MMLPA                                        

3M argued that Barry’s claim against RCHP is barred because Barry did not 
comply with the Montana Medical Legal Panel Act (“MMLPA”).  See 

.  3M asserted that Barry “cannot maintain a cause of action against [RCHP] 
because he 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 9.6  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 Barry must comply with 
the MMLPA to pursue his claim against RCHP 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 Barry disputed whether Barry’s claim against RCHP is subject to the 




6    The District of Montana and the Montana Fourth Judicial District Court use 
different spellings of the plaintiff’s last name.                         
limitation period of 

 or 

 and 
whether his claim is timely under either section.                         

“[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 
Barry’s claim against RCHP is timely to the Montana state courts to decide.  See Filla, 
336 F.3d at 811.                                                          
                    Intent to Prosecute                              
3M contended that Barry fraudulently joined RCHP because he does not intend to 

prosecute his claim against RCHP.  In support, 3M stated that Barry “did not file the 
required application with the [MMLP] prior to initiating his suit against [RCHP]” and 
that he “delayed in bringing his claims against [RCHP] 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 Barry lacks any real 
intention to pursue his claim against RCHP.                               
                       Conclusion                                    
Barry did not fraudulently join RCHP.  Thus, the Court lacks subject-matter 

jurisdiction and remands the action to state court.  See 

(c).  The Court 
denies Barry’s 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.   Barry’s Motion for Remand [Docket No. 55] is GRANTED.           
2.   Barry’s motion to strike [Docket No. 67] is DENIED AS MOOT.     
3.   Case No. 23-cv-3072 is REMANDED to the Montana First Judicial District 
     Court, Lewis and Clark County.                                  
4.   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