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Exhibit J

Plaintiffs Opposition to

Defendant University ofChicago Medical Centers

Motion to Dismiss

Case MDL No. 1909 Document 244-3 Filed 12/23/11 Page 1 of 49

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Exhibit K

Nov. 17, 2011

Dismissal Order


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Exhibit L

Motion to Vacate or Modify

Nov. 17, 2011 Order


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1

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, LAW DIVISION

PAUL YOUNG, Individually and as )

Special Administrator for the ) Case No. 11-L-6157

Estate of KENYETTA MARKS, ))Plaintiffs, )

)vs. ) JURY TRIAL DEMANDED

)GENERAL ELECTRIC COMPANY; )

GE HEALTHCARE a/k/a GENERAL )ELECTRIC COMPANY d/b/a GE )

HEALTHCARE; GE HEALTHCARE, INC. )d/b/a GE HEALTHCARE MEDICAL )

DIAGNOSTICS; GE HEALTHCARE AS; )and UNIVERISTY OF CHICAGO )

MEDICAL CENTER, ))

Defendants. )

PLAINTIFFS MOTION TO VACATE OR IN THE ALTERNATIVE MODIFY

THE NOVEMBER 17, 2011 ORDER DISMISSING

DEFENDANT UNIVERSITY OF CHICAGO MEDICAL CENTER

Plaintiff Paul Young, Individually and as Special Administrator for the Estate of

Kenyetta Marks, by and through his attorneys, TORHOERMAN LAW LLC and

JOHNSON BECKER PLLC, files this, his Motion to Vacate or in the Alternative Modify

the Courts November 17, 2011 Order dismissing Defendant University of Chicago

Medical Center. Plaintiff respectfully submits that the Court reconsider its Order based

on the following points:

Point 1: The Court erred by holding that Plaintiffs claims against DefendantUniversity of Chicago Medical Center are barred by 75 ILCS 5/13-212.

Point 2: The Court erred by making its November 17, 2011 Order final pursuant

to Illinois Supreme Court Rule 304(a).


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Point 1: The Court erred by holding that Plaintiffs claims against Defendant

University of Chicago Medical Center are barred by 75 ILCS 5/13-212

1. The Court erred by holding that Plaintiffs claims against the University of

Chicago Medical Center are barred by the four-year statute of repose because

Defendants negligence was a continuous and unbroken course of negligent treatment

under the construction of the statute of repose announced in Cunningham v. Huffman,

154 Ill. 2d 398 (1993). Specifically, Plaintiff respectfully submits that this Court erred by

concluding Defendants negligence was not medical treatment, and that it would be a

ministerial function of the hospital not requiring medical expertise. On the contrary,

Defendants failed to track, warn and perform diagnostic procedures on dialysis patients

like Decedent, who were at risk of developing NSF when exposed to Omniscan. Further,

even if the continuous course of treatment doctrine does not apply, there is a fact issue on

when the statute of repose began to run on Plaintiffs claim.

2. The authorities cited by University of Chicago and relied upon by the

Court do not indicate Defendants negligent acts and omissions were not medical

treatment or exercises of medical expertise underCunningham. Ferrara v. Wall, 323 Ill.

App. 3d 751 (2nd Dist. 2001); Turner v. Nama, 294 Ill. App. 3d 19 (1st Dist. 1997).

3. The omission in Turnerwas the physicians failure to notify her patient

that her pap smear indicated a class four carcinoma in situ. Turner, 294 Ill. App. 3d at 22.

The Court of Appeals reasoned that the ongoing course of negligent medical treatment

doctrine did not apply because the failure to notify was not medical treatment since the

decision to send the results requires only ordinary judgment--not medical judgment.

Turner, 294 Ill. App. 3d at 32. Ferrara v. Wall, which involved a physician who failed to


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notify his patient that he had an abnormally high PSA level, followed Turner.Ferrara,

323 Ill. App.3d at 753, 757.

4. The omissions by the University of Chicago Medical Center were far

different from a simple decision to send test results, which required only ordinary

judgment. The University of Chicagos omissions required medical judgment and

expertise: an analysis of current medical research; a review of individual patients

medical histories to see if they were at risk; and performance of diagnostic procedures by

medical personnel indicated for diagnosis of NSF, i.e., biopsies of specific depths,

analyses of the biopsies by a dermatopathologist, and correlation of patients biopsy

results with their clinical presentation. Unlike the secretarial functions at issue in Turner

andFerrara, the above procedures and analyses could only have been performed by

healthcare professionals. TurnerandFerrara therefore do not support barring Plaintiff

from relying on the ongoing course of negligent medical treatment doctrine.

5. Further, even assuming that the ongoing course of negligent medical

treatment doctrine does not apply, Defendants statute-of-repose defense cannot be

resolved on a motion to dismiss because it turns on a fact issue: when a duty arose on the

part of University of Chicago Medical Center to track, warn and perform NSF diagnostic

procedures on patients like Decedent Kenyetta Marks. Significantly, the Turnerdecision

did not hold that the physician had no duty to notify her patient of the pap smear results,

only that the failure to do so was not part of a continuous course of treatment. Turner,

294 Ill. App. 3d at 32. The Court of Appeals therefore considered when the statute of

repose was triggered, and concluded that it began running two months after the physician


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(2) the possibility that the need for review might or might not be mootedby future developments in the district court;

(3) the possibility that the reviewing court might be obliged to consider the

same issue a second time;

(4) the presence or absence of a claim or counterclaim which could resultin set-off against the judgment sought to be made final; and

(5) miscellaneous factors such as delay, economic and solvency

considerations, shortening the time of trial, frivolity of competing claims,expense, and the like.

In re Estate of Stark, 374 Ill. App. 3d 516, 524 (4th Dist. 2007) (quoting Geier v. Hamer

Enterprises, Inc., 226 Ill. App. 3d 372, 383 (1992) (quotingAllis-Chalmers Corp. v.

Philadelphia Electric Co., 521 F.2d 360, 364 (3rd Cir. 1975))).

10. Factors one and five weigh against making the dismissal of the University

of Chicago Medical Center immediately appealable. Specifically, a significant number of

fact witnesses are healthcare providers employed by the University of Chicago Medical

Center, and the General Electric Defendants will insist on deposing them. If the

University ceases to be a party to this litigation, obtaining necessary evidence will take

longer, requiring the use of subpoenas.

CONCLUSION AND REQUEST FOR RELIEF

11. For the foregoing reasons, Plaintiff respectfully requests that the Court

vacate its judgment dismissing Defendant University of Chicago Medical Center. In the

alternative, if the Court is unwilling to vacate in its entirety its Order granting

Defendants Motion to Dismiss, Plaintiff respectfully requests that the Court modify its

November 17, 2011 Order to omit the language making the Order final and appealable

pursuant to Illinois Supreme Court Rule 304(a).


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Dated: December 19, 2011 Respectfully submitted,

TorHoerman Law LLC

Johnson Becker PLLC

___/s/____________________________Tor A. Hoerman, #6229439

Eric Terry, #6282169Jacob W. Plattenberg, #6297431

TorHoerman Law LLC101 W. Vandalia, Suite 350

Edwardsville, IL 62025Phone: (618) 656-4400

Fax: (618) [email protected]

[email protected]@torhoermanlaw.com

andMichael K. Johnson, MN Bar #258696

Johnson Becker PLLC33 South Sixth Street, Suite 4530

Minneapolis, MN 55402Phone: (612) 333-4662



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CERTIFICATE OF SERVICE

The undersigned certify under penalty as provided by law pursuant to 735 ILCS

511-109, that on December 19, 2011, I served this PLAINTIFFS MOTION TO

VACATE OR IN THE ALTERNATIVE MODIFY THE NOVEMBER 17, 2011

ORDER DISMISSINGDEFENDANT UNIVERSITY OF CHICAGO MEDICAL

CENTERby depositing a copy of same in the United States Mail properly addressed

with sufficient postage affixed to the attorneys listed on the below Service List.

__/s/___________________________________

TO:

SIDLEY AUSTIN LLP

Sherry A. Knutson, Esq.One South Dearborn Street

Chicago, IL 60603Attorneys for Defendants General Electric Company; GE Healthcare a/k/a General

Electric Company d/b/a GE Healthcare; GE Healthcare, Inc. d/b/a GE HealthcareMedical Diagnostics; GE Healthcare AS

SWANSON, MARTIN & BELL, LLP

Patricia S. Kocour330 North Wabash, Suite 3300

Chicago, IL 60611Attorneys for Defendant University of Chicago Medical Center


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Exhibit M

Notice of Removal


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1

UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF ILLINOIS

PAUL YOUNG, Individually and as SpecialAdministrator for the Estate of KENYETTAMARKS,

Plaintiffs,

v.

GENERAL ELECTRIC COMPANY;GE HEALTHCARE a/k/a GENERALELECTRIC COMPANY d/b/a GEHEALTHCARE;GE HEALTHCARE INC. d/b/a GEHEALTHCARE MEDICAL DIAGNOSTICS;GE HEALTHCARE AS; andUNIVERSITY OF CHICAGO MEDICALCENTER,

Defendants.

Case No. _______________

Removed from the Circuit Court of CookCounty, Illinois, Case No. 11-L-6157

JURY TRIAL DEMANDED

Pending Transfer to MDL 1909 (In

re Gadolinium Based Contrast Dyes

Products Liability Litigation)

NOTICE OF REMOVAL

In accordance with 28 U.S.C. 1332, 1441, and 1446, Defendants GENERAL

ELECTRIC COMPANY and GE HEALTHCARE INC. (incorrectly sued as GE Healthcare and

GE Healthcare, Inc.) (collectively, the GE Defendants) hereby remove this civil action from

the Circuit Court of Cook County, Illinois, to the United States District Court for the Northern

District of Illinois, Eastern Division.

I. INTRODUCTION

A. The Multidistrict Litigation Proceedings

1. This is one of a number of pharmaceutical product liability actions thatallege personal injuries or death caused by Omniscan, a product manufactured and/or distributed

Case: 1:11-cv-08504 Document #: 1 Filed: 11/29/11 Page 1 of 15 PageID #:1Case MDL No. 1909 Document 244-3 Filed 12/23/11 Page 21 of 49

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by the GE Defendants. Specifically, plaintiffs claim that the administration of gadolinium-based

contrast agents (GBCAs), including Omniscan, to patients with renal insufficiency undergoing

magnetic resonance imaging (MRI) procedures causes nephrogenic systemic fibrosis (NSF).

2. The Judicial Panel on Multidistrict Litigation (JPML) has consolidatedpretrial proceedings for claims involving Omniscan (gadodiamide) and other GBCAs pursuant to

28 U.S.C. 1407 in the Northern District of Ohio under MDL No. 1909. A true and correct

copy of the JPMLs Transfer Order is attached hereto as Exhibit A. See also In re Gadolinium

Based Contrast Dyes Prods. Liab. Litig., 536 F. Supp. 2d 1380 (J.P.M.L. 2008). Judge Dan A.

Polster was assigned to preside over the multidistrict litigation (MDL). Because the plaintiff

alleges personal injuries from Omniscan, this case is subject to transfer to that court as a tag-

along action. Id.

B. The State Court Action3. On or about June 14, 2011, Kenyetta Marks filed a civil action against the

GE Defendants and the University of Chicago Medical Center in the Circuit Court of Cook

County, Illinois, County Department, Law Division, styled Kenyetta Marks v. General Electric

Company, et al. (No. 11-L-6157) (the State Court Action). Copies of the docket and all papers

filed in the State Court Action are attached hereto as Exhibit B. Among other things, Ms.

Markss complaint alleged that she developed NSF following the administration of Omniscan in

connection with MRI procedures that she underwent at the University of Chicago Medical

Center on or around March 8, 2006, September 8, 2006, and September 28, 2006. Compl. 28-

29.

4. Ms. Marks passed away on August 21, 2011. On September 22, 2011,counsel filed an amended complaint on behalf of Ms. Markss husband, Paul Young. The action


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is now styled Paul Young, Individually and as Special Administrator for the Estate of Kenyetta

Marks v. General Electric Company, et al. (No. 11-L-6157). The amended complaint alleges

wrongful death, survival, and funeral and burial expenses under theories of strict liability (design

and manufacturing) and negligence against the GE Defendants related to Ms. Markss alleged

development of NSF following administration of Omniscan. Am. Compl. 31-114.

5. Although the only real dispute in this action is between the plaintiff andthe GE Defendants, the plaintiff also named the University of Chicago Medical Center, the

facility at which Ms. Marks allegedly received Omniscan. Id. 115-232. The plaintiff

purported to assert an institutional negligence theory of recovery against the University of

Chicago Medical Center, alleging, inter alia, that it failed to use reasonable care by permitting

Ms. Marks to receive Omniscan three times in 2006 when she suffered from renal insufficiency

and that as a result she developed NSF. Id.

6. The University of Chicago Medical Centers citizenship initially preventedremoval of this case to federal court. See U.S.C. 1332, 1441(b). However, less than thirty

days before initiating this removal, the GE Defendants received other paper that conclusively

establishes that the plaintiffs claims against the University of Chicago Medical Center are time-

barred under Illinois law and that the facility was fraudulently joined. See U.S.C. 1446(b)

(permitting removal within 30 days of receipt by defendant of an other paper from which it

may be ascertained that the case is removable). Specifically, Judge Deborah Mary Dooling of

the Circuit Court of Cook County, Illinois, ordered dismissal of the University of Chicago

Medical Center on November 18, 2011, finding that the statute of repose would require an

action to have been filed by September 28, 2010, four years after Marks alleged injury


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occurred. Dooling Order at 3.1 Because the plaintiff did not file this lawsuit until June 2011,

the claims against the University of Chicago Medical Center are foreclosed, and the facility was

fraudulently joined. Accordingly, the University of Chicago Medical Centers citizenship may

be disregarded when determining federal subject matter jurisdiction.

7. This action is one in which this Court has original subject matterjurisdiction under the provisions of 28 U.S.C. 1332, and is one which may be removed to this

Court pursuant to the provisions of 28 U.S.C. 1441(a) because, excluding the fraudulently

joined defendant, it is a civil action between citizens of different states, and the matter in

controversy exceeds the sum or value of $75,000, exclusive of interest and costs.

II. REMOVAL IS PROPER BECAUSE THIS COURT HAS SUBJECT MATTERJURISDICTION PURSUANT TO 28 U.S.C. 1332 AND 1441

A. Complete Diversity of Citizenship Exists

8. At the time this suit was filed, Ms. Marks was a citizen of Illinois forpurposes of diversity jurisdiction. Plaintiffs Fact Sheet (Exhibit C) B(4); Am. Compl. 2; 28

U.S.C. 1332(c)(2).

9. Defendant General Electric Company is, and has been at all relevanttimes, a corporation incorporated under the laws of the State of New York with its principal

place of business at 3135 Easton Turnpike, Fairfield, Connecticut, 06828. Pursuant to 28 U.S.C.

1332, General Electric Company is a citizen of both New York and Connecticut. General

Electric Company is the ultimate parent company of GE Healthcare Inc.

1 Judge Dooling determined that the four-year statute of repose began to run from the date of thelast administration of Omniscan to plaintiff at the University of Chicago Medical Center, whichoccurred on September 28, 2006, which was also alleged to have been the date of last treatmentof Ms. Marks by that defendant.


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10. GE Healthcare Inc. is, and has been at all relevant times, a corporationincorporated under the laws of the State of Delaware with its principal place of business at 101

Carnegie Center, Princeton, New Jersey, 08540. Pursuant to 28 U.S.C. 1332, GE Healthcare

Inc. is a citizen of both Delaware and New Jersey. GE Healthcare Inc. distributes, sells and

markets Omniscan, the GBCA at issue, in the United States in accordance with FDA rules and

regulations. General Electric Company is the ultimate parent company of GE Healthcare Inc.

11. The University of Chicago Medical Center is located in Illinois. Am.Compl. 10. Upon information and belief, it is a nonprofit corporation incorporated under the

laws of the State of Illinois with its principal place of business at 5841 S. Maryland Avenue,

Chicago, Illinois, 60637. Pursuant to 28 U.S.C. 1332, the University of Chicago Medical

Center is a citizen of Illinois. However, the citizenship of the University of Chicago Medical

Center should be disregarded because it was fraudulently joined in this action. A nondiverse

defendant is deemed to be fraudulently joined when there is no reasonable possibility that the

plaintiff could establish a cause of action against that party in state court. Hoosier Energy Rural

Elec. Coop., Inc. v. Amoco Tax Leasing IV Corp., 34 F.3d 1310, 1314-15 (7th Cir. 1994);

Gottlieb v. Westin Hotel Co., 990 F.2d 323, 327 (7th Cir. 1993). As demonstrated below (and as

Judge Dooling determined), the plaintiff has no reasonable possibility of establishing a claim

against the University of Chicago Medical Center under Illinois law in this action.


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B. The University of Chicago Medical Center Was Fraudulently Joined

12. Plaintiffs claims are governed by Illinois law. SeeEsser v. McIntyre, 661N.E.2d 1138, 1141 (Ill. 1996) (applying the most significant relationship test for products

liability claims);Edwardsville Nat. Bank & Trust Co. v. Marion Labs., Inc., 808 F.2d 648, 651

(7th Cir. 1987) (same as to products liability and medical malpractice claims). Under the law of

Illinois, there is no reasonable possibility that plaintiff could succeed on any of his claims against

the University of Chicago Medical Center and, as a result, it was fraudulently joined in this

action. Illinois law precludes the plaintiff from establishing a claim against the University of

Chicago Medical Center in state court because the plaintiff failed to file his medical malpractice

claim against it within four years of the act or omission allegedly causing injury. The University

of Chicago Medical Centers citizenship, therefore, may be disregarded and removal is proper.

1. Fraudulent Joinder Standard

13. The fraudulent joinder doctrine prevents plaintiffs from defeating diversityjurisdiction simply by naming a defendant who shares a plaintiffs state citizenship. If there is

no reasonable possibility of making a claim against them, such nondiverse defendants are not

properly joined. 28 U.S.C. 1441(b) (providing for removal jurisdiction in diversity cases if

none of the parties in interestproperlyjoined and served as defendants is a citizen of the State in

which such action is brought) (emphasis added);Hoosier, 34 F.3d at 1314-15. See generally

Wecker v. Natl Enameling & Stamping Co., 204 U.S. 176, 186 (1907) (The Federal courts

should not sanction devices intended to prevent a removal to a Federal court where one has that

right.);Legg v. Wyeth, 428 F.3d 1317, 1320 (11th Cir. 2005) (recognizing common strategy

in pharmaceutical product liability actions of naming nondiverse local defendants against whom

there is no legitimate claim in an effort to defeat pharmaceutical companys removal rights at


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the unfair expense not only of [the company] but of many individuals and small enterprises that

are being unfairly dragged into court simply to prevent adjudication of lawsuits in federal

court) (citation omitted);McKinney v. Bd. of Md. Cmty. College, 955 F.2d 924, 928 (4th Cir.

1992) (Congress created the removal process to protect defendants. It did not extend such

protection with one hand, and with the other give plaintiffs a bag of tricks to overcome it.);

Gottlieb, 990 F.2d at 327 ([D]iversity jurisdiction cannot be destroyed by joinder of nondiverse

parties if such joinder is fraudulent.).

14. Fraudulent joinder is established where the plaintiff has no reasonablepossibility of recovery against the nondiverse party in state court. Hoosier, 34 F.3d at 1315. In

determining whether a defendant is fraudulently joined, the Seventh Circuit requires an analysis

not only of whether a plaintiff has stated a claim, but whether the plaintiff has some reasonable

basis for stating a claim. Schwartz v. State Farm Mut. Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir.

1999) (finding removal proper because of fraudulent joinder, notwithstanding the fact that the

plaintiff had made a claim against the nondiverse defendant under the concept of notice

pleading).

15. Where a plaintiffs claim against a nondiverse defendant is barred by astatute of repose, he or she has no reasonable possibility of stating a claim and the nondiverse

defendant is fraudulently joined. LeBlang Motors, Ltd. v. Subaru of America, Inc., 148 F.3d 680,

690 (7th Cir. 1998) (If the time to bring the cause of action had expired, then the district court

was correct in dismissing such parties as fraudulently joined.); see alsoIn re Diet Drugs

Prods. Liab. Litig., 352 F. Supp. 2d 533 (E.D. Pa. 2004) (finding fraudulent joinder in diet drug

case where plaintiffs claims against nondiverse prescribing physician were time-barred under


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Kentucky law);In re Diet Drugs, MDL. No. 1203, 2004 U.S. Dist. LEXIS 26754 (E.D. Pa. June

30, 2004) (same, under Texas law).

16. When fraudulently joined defendants are dismissed, the action may beproperly removed to federal court. For example, in Kavalir v. Medtronic, this Court denied a

plaintiffs motion to remand after the nondiverse hospital defendants moved successfully for

dismissal. The Court found that there was no possibility the plaintiff could state a cause of

action for breach of implied warranty against the hospitals and thus the fraudulently joined

defendants could not defeat diversity. No. 07C0835, 2007 WL 1225358, at *1 (N.D. Ill. Apr. 19,

2007); see also Maglione v. Cottrel Inc., No. 00C2436, 2000 WL 988529, at *2 (N.D. Ill. July

18, 2000) (The Court concludes that [the codefendant] was fraudulently joined, thus permitting

removal even if the dismissal of that defendant was involuntary.).

2. The University of Chicago Medical Center Was Fraudulently Joined

17. Because the plaintiff had no reasonable possibility of stating a claimagainst it, the University of Chicago Medical Center was fraudulently joined. In the Amended

Complaint, the plaintiff alleged medical malpractice claims against the University of Chicago

Medical Center, including that it was negligent in failing to exercise reasonable care of Ms.

Marks given her renal insufficiency, failing to create and implement appropriate policies for the

use of GBCAs, failing to stay current on the medical literature related to Omniscan and its risks,

and agreeing to an exclusive use contract with the GE Defendants and/or its predecessor

companies at the expense of patient safety. Am. Compl. 115-232.

18. Medical malpractice claims against physicians and hospitals such as thosealleged by the plaintiff are subject to a four-year statute of repose:

[N]o action for damages for injury or death against any physician, dentist,registered nurse or hospital duly licensed under the laws of this State,


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whether based upon tort, or breach of contract, or otherwise, arising out ofpatient care shall be brought more than 2 years after the date on which theclaimant knew, or through the use of reasonable diligence should haveknown, or received notice in writing of the existence of the injury or deathfor which damages are sought in the action, whichever of such date occurs

first, but in no event shall such action be brought more than 4 years afterthe date on which occurred the act or omission or occurrence alleged insuch action to have been the cause of such injury or death.

735 ILCS 5/13-212 (emphasis added). The Illinois Supreme Court has held that the four-year

repose period is triggered by the occurrence of the act or omission that caused the injury. Orlak

v. Loyola University Health System, 885 N.E.2d 999 (2007). Such acts or omissions arise out of

patient care involving medical expertise.2 See Dooling Order at 2-3.

19. The plaintiffs claims against the University of Chicago Medical Centerfocus on the alleged administration of Omniscan to Ms. Marks on March 8, 2006, September 8,

2006, and September 28, 2006. Am. Compl. 28-29. As such, the last occurrence of medical

treatment by the University of Chicago Medical Center allegedly leading to Ms. Markss claimed

Omniscan-related injuries was on September 28, 2006. See Dooling Order at 3.

20. Under the statute of repose, claims against the University of ChicagoMedical Center were required to be filed within four years of the last claimed act or omission

allegedly causing injury. 735 ILCS 5/13-212. Here, the statute of repose required that the

plaintiff file any claims against the University of Chicago Medical Center related to the

administration of Omniscan before September 28, 2010, four years after Ms. Markss last

administration of Omniscan. This action, commenced on June 14, 2011, was thus untimely as to

the plaintiffs medical malpractice claims.

2 Although the plaintiff asserted that the statute of repose did not bar his claims against theUniversity of Chicago Medical Center because of an alleged continuous course of negligentmedical treatment, Judge Dooling rejected this argument, concluding that the plaintiff did notallege that any medical treatment (i.e., an event requiring medical expertise) occurred afterSeptember 28, 2006. See Dooling Order at 2-3.


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21. The plaintiff never had a reasonable possibility of recovery against theUniversity of Chicago Medical Center because he failed to file his action in accordance with the

medical malpractice statute of repose. The University of Chicago Medical Center was thus

fraudulently joined. See Hoosier Energy, 34 F.3d at 131;LeBlang, 148 F.3d at 690; Kavalir,

2007 WL 1225358, at *1. Accordingly, its citizenship is ignored for purposes of diversity

jurisdiction. Id. Because there is complete diversity among the remaining parties, removal is

proper. 28 U.S.C. 1332.

C. The Amount in Controversy Exceeds $75,000

22.

The Amended Complaint does not expressly state the amount in

controversy. Where, as here, a complaint does not allege a specific amount of damages, the

Court may consider whether it is obvious from the face of the complaint that the plaintiffs

damages exceeded the jurisdictional amount. McCoy v. Gen. Motors Corp.,226 F. Supp. 2d

939, 941 (N.D. Ill. 2002); accord Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1063 (11th Cir.

2010) (noting that the court found no case in any other circuit that purports to prohibit a district

court from employing its judicial experience or common sense in discerning whether the

allegations in a complaint facially establish the jurisdictionally required amount in controversy).

23. It is facially apparent from the Amended Complaint that the amount incontroversy exceeds $75,000, exclusive of interest and costs. The plaintiff claims that as a result

of the administration of Omniscan, Ms. Marks developed NSF and suffered from severe,

debilitating and worsening fibrotic changes and pulmonary and other systemic

manifestations. See, e.g., Am. Compl. 34. Ultimately, according to the plaintiff, Ms. Marks

died as a result of developing NSF/NFD. See, e.g., id. 35. Her survivors allege they have

suffered pecuniary loss and damages . . . and have been deprived and will in the future be


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deprived of her affection, society and companionship and that they incurred funeral, burial and

medical expenses as a result of NSF caused by Omniscan. See, e.g., id. 37, 41. As such,

there is a good faith basis to believe that the amount in controversy exceeds $75,000. See Rubel

v. Pfizer, Inc., 361 F.3d 1016, 1020 (7th Cir. 2004) ([P]laintiffs cant prevent removal by

refusing to concede that the controversy exceeds the jurisdictional minimum.);McCoy,226 F.

Supp. 2d at 941 ([C]ourts have routinely held that when plaintiffs allege serious, permanent

injuries and significant medical expenses, it is obvious from the face of the complaint that the

plaintiffs damages exceeded the jurisdictional amount.).

24.

The GE Defendants need not confirm through discovery in the state court

action that the jurisdictional amount is satisfied. Indeed, a defendant who wishes to remove a

case to federal court cannot wait for discovery responses that simply confirm what was obvious

from the face of the complaint; in such cases, defendants are not insulated from a remand to state

court. It is not the law that cases are not removable until there has been an absolute affirmation

via discovery . . . that more than $75,000 [is] in issue. Fields v. Jay Henges Enters., Inc., No.

06-323-GPM, 2006 WL 1875457, *3 (S.D. Ill. June 30, 2006) (quotingMcCoy, 226 F. Supp. 2d

at 941); see alsoRoe, 613 F.3d at 1064 ([W]hen a district court can determine, relying on its

judicial experience and common sense, that a claim satisfied the amount-in-controversy

requirements, it need not give credence to a plaintiffs representation that the value of the claim

is indeterminate. Otherwise, a defendant could wrongly be denied the removal to which it is

entitled.); Century Assets Corp. v. Solow, 88 F. Supp. 2d 659, 661 (E.D. Tex. 2000) (holding

that a complaint can facially state a claim over the jurisdictional amount when there are no

numbers in the [complaint] at all, and that removal was untimely where it was apparent from


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the complaint that an amount sufficient to satisfy the requirements of diversity jurisdiction was in

controversy) (emphasis in original) (collecting cases).

III. THE PROCEDURAL REQUIREMENTS FOR REMOVAL ARE SATISFIED

25. This notice of removal is timely. It is being filed within one year of thecommencement of this action in state court and within 30 days of November 18, 2011, the date

the GE Defendants first received an other paper from which it could be ascertained that the

case is one which had become removable within the meaning of 28 U.S.C. 1446(b).

Specifically, on that date, the judge in the State Court Action dismissed the only nondiverse

defendant in this matter, the University of Chicago Medical Center, finding that the plaintiffs

claims against it were barred by the medical malpractice statute of repose. Dooling Order at 3.

See Poulos v. Naas Foods, Inc., 959 F.2d 69, 72-73 (7th Cir. 1992) (holding that a state-court

summary judgment order dismissing the nondiverse defendant was an order or other paper that

permitted removal after the initial 30 days, where the nondiverse defendant was fraudulently

joined).

26. Pursuant to 28 U.S.C. 1446(a), copies of all process, pleadings, orders,and other papers filed in the State Court Action are attached hereto as Exhibit B.

27. The United States District Court for the Northern District of Illinoisembraces Cook County, the county in which the State Court Action is now pending. See 28

U.S.C. 116(c). Thus, this case is properly removed to this Court pursuant to 28 U.S.C.

1441(a).

28. No previous application has been made for the relief requested in thisnotice of removal.


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13

29. Pursuant to 28 U.S.C. 1446(d), a copy of this notice of removal is beingserved on the plaintiffs counsel and a copy is being filed with the Clerk of the Circuit Court of

Cook County, State of Illinois.

30. A filing fee of $350.00 has been tendered to the Clerk of the United StatesDistrict Court for the Northern District of Illinois.

IV. CONCLUSION

Defendants General Electric Company and GE Healthcare Inc. respectfully

remove this action from the Circuit Court of Cook County, Illinois, to the United States District

Court for the Northern District of Illinois, pursuant to 28 U.S.C. 1441 and 1446. Should any

question arise as to this removal, the GE Defendants respectfully request an opportunity to

provide briefing and an oral argument as to why removal is proper.

Dated: November 29, 2011

Respectfully Submitted,

/s/ Sherry A. Knutson______________Maja J. Eaton (ARDC No. 6188479)Sherry A. Knutson (ARDC No. 6276306)Sidley Austin LLPOne South DearbornChicago, Illinois 60603(312) [email protected]@sidley.com

Attorneys for Defendants General Electric

Company and GE Healthcare Inc.


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14


I hereby certify that on November 29, 2011, I electronically filed the foregoing document

with the Clerk of the Court using the CM/ECF system, which will send notification of such filing

to all attorneys of record, and sent via U.S. Mail, postage prepaid, to:

TOR HOERMAN LAW LLCTor A. HoermanEric TerryJacob W. Plattenberger101 W. Vandalia St., Ste. 350Edwardsville, IL 62025

JOHNSON BECKER PLLC

Michael K. Johnson, Esq.Timothy Becker, Esq.Rolf T. Fiebiger, Esq.33 South Sixth Street, Suite 4530Minneapolis, MN 55402

DECARLILAWDebra I. DeCarli, Esq.Robert C. DeCarli, Esq.50 California Street, Suite 1500San Francisco, CA 94111

Attorneys for Plaintiff

_____/s/ Sherry A. Knutson______________Sherry A. Knutson (ARDC No. 6276306)


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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

PAUL YOUNG, Individually and as SpecialAdministrator for the Estate of KENYETTA

MARKS,

Plaintiffs,

v.

GENERAL ELECTRIC COMPANY;

GE HEALTHCARE a/k/a GENERAL

ELECTRIC COMPANY d/b/a GE

HEALTHCARE;

GE HEALTHCARE INC. d/b/a GE

HEALTHCARE MEDICAL DIAGNOSTICS;

GE HEALTHCARE AS; and

UNIVERSITY OF CHICAGO MEDICAL

CENTER,

Defendants.

Case No. _______________

JURY TRIAL DEMANDED

EXHIBITS TO GE DEFENDANTS NOTICE OF REMOVAL

Exhibit A In re Gadolinium Contrast Dyes Products Liability Litigation, February 27, 2008

JMPL Transfer Order for MDL 1909

Exhibit B State Court Pleadings

Exhibit C Plaintiffs Fact Sheet


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Exhibit N

Letter Identifying Cause as

Tag-Along Case


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Case MDL No. 1909 Document 235 Filed 11/29/11 Page 1 of 1Case: 1:11-cv-08504 Document #: 15-1 Filed: 12/12/11 Page 2 of 2 PageID #:400Case MDL No. 1909 Document 244-3 Filed 12/23/11 Page 37 of 49

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Exhibit O

Plaintiffs Motion for

Remand


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Page 1 of 3

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

PAUL YOUNG, Individually and as

Special Administrator for the Estate of

KENYETTA MARKS,

Plaintiffs,

vs.

GENERAL ELECTRIC COMPANY;GE HEALTHCARE a/k/a GENERAL

ELECTRIC COMPANY d/b/a GE

JURY TRIAL DEMANDED

HEALTHCARE; GE HEALTHCARE,

INC. d/b/a GE HEALTHCAREMEDICAL DIAGNOSTICS; GE

HEALTHCARE AS;and UNIVERSITY OF CHICAGO

MEDICAL CENTER,

Defendants.

)

)

))

)

))

)

))

)

)

)

))

))

)

))

Case No. 1:11-CV-08504

Removed from the Circuit Courtof Cook County, Illinois,

Case No. 11-L-6157

JURY TRIAL DEMANDED

PLAINTIFFS MOTION FOR REMAND

Plaintiff Paul Young, Individually and as Special Administrator for the Estate of

Kenyetta Marks, moves for remand of this action to the Circuit Court of Cook County, State of

Illinois, pursuant to 28 U.S.C. 1447(c). The Notice of Removal is not timely: removing on the

basis of the purported fraudulent joinder of the Defendant University of Chicago Medical Center

must have been done within thirty days of General Electrics receipt of Plaintiffs complaint, and

the dismissal of the University of Chicago was involuntary, therefore not a new grounds for

removal.

WHEREFORE, Plaintiff prays that this Court enter an order remanding this action to the

Circuit Court of Cook County, State of Illinois, and award Plaintiff his attorneys fees and

expenses incurred in opposing the removal.


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Page 2 of 3

Dated: December 6, 2011 Respectfully submitted,

TorHoerman Law LLC

Johnson Becker PLLC

/s/Tor HoermanTor A. Hoerman, #6229439

Eric Terry, #6282169

Jacob W. Plattenberger, #6297431TorHoerman Law LLC

101 W. Vandalia, Suite 350

Edwardsville, IL 62025

Phone: (618) 656-4400


[email protected]@torhoermanlaw.com

and

Michael K. Johnson, MN Bar #258696Timothy Becker, MN Bar #256663

Rolf T. Fiebiger, MN Bar #391138

Johnson Becker PLLC

33 South Sixth Street, Suite 4530Minneapolis, MN 55402

Phone: (612) 333-4662

Fax: (612) 339-8168

[email protected]@johnsonbecker.com

[email protected]

Attorneys for Plaintiffs


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Page 3 of 3


Plaintiff hereby certifies that a true and accurate copy of the foregoing instrument was

served upon all parties listed on the service list via electronic filing and Regular Mail on this 6th

day of December 2011.

______________________________

TO:

SIDLEY AUSTIN LLP

Sherry A. Knutson, Esq.

One South Dearborn StreetChicago, IL 60603

Ph: 312-853-7000Fax: [email protected]

Attorneys for General Electric Company; GE Healthcare A/K/A General Electric Company d/b/a

GE Healthcare; GE Healthcare, Inc. d/b/a GE Healthcare Medical Diagnostics; GE Healthcare

AS

SWANSON, MARTIN & BELL, LLP

Patricia S. Kocour, Esq.

Jennifer Dicken

330 North Wabash, Suite 3300

Chicago, Illinois 60611Ph: 312-321-9100Fax: 312-321-0990

[email protected]

[email protected]

Attorneys for University of Chicago Medical Center

JOHNSON BECKER LLC, P.C.

Michael Johnson, Esq. (Pro Hac Vice)

33 South Sixth Street, Suite 4530

Minneapolis, MN 55402Ph: 612-333-4662

Fax: 612-339-8168

[email protected]

Attorney for Plaintiff


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Exhibit P

Minute Order

Setting Motion for RemandBriefing Schedule


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UNITED STATES DISTRICT COURTFOR THE Northern District of Illinois CM/ECF LIVE, Ver 4.2

Eastern Division

Paul Young

Plaintiff,

v. Case No.: 1:11cv08504Honorable William J. Hibbler

General Electric Company, et al.

Defendant.

NOTIFICATION OF DOCKET ENTRY

This docket entry was made by the Clerk on Tuesday, December 13, 2011:

MINUTE entry before Honorable William J. Hibbler: Motion hearing held on12/13/2011 regarding motion to remand [9], motion to stay [15]. Plaintiff's Motion toremand [9] is taken under advisement. Defendants to respond by 12/23/2011. Plaintiff toreply by 12/30/2011. Ruling by mail. Defendants Motion to stay proceedings pendingfinal transfer decision by JPML [15] is taken under advisement. Plaintiff to respond by12/23/2011. Defendants to reply by 12/30/2011. Ruling by mail. Application to appear prohac vice of Robert Charles DeCarli [11], Debra DeCarli [12], Michael K. Johnson [13]and Rolf Fiebieger [14] as counsel for plaintiff are granted. Mailed notice (jdh)

ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules ofCivil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It wasgenerated by CM/ECF, the automated docketing system used to maintain the civil andcriminal dockets of this District. If a minute order or other document is enclosed, pleaserefer to it for additional information.

For scheduled events, motion practices, recent opinions and other information, visit our

web site at www.ilnd.uscourts.gov.


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ExhibitQ

DocketSheetfromCaseNo.

1:11-CV-08504


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KEYS

United States District CourtNorthern District of Illinois - CM/ECF LIVE, Ver 4.2 (Chicago)

CIVIL DOCKET FOR CASE #: 1:11-cv-08504

Young v. General Electric Company et al

Assigned to: Honorable William J. Hibbler

Demand: $75,000

Case in other court: Circuit Court of Cook County, Law

Division, 11L6157

Cause: 28:1441 Petition for Removal- Personal Injury

Date Filed: 11/29/2011

Jury Demand: Both

Nature of Suit: 365 Personal Inj. Prod.

Liability

Jurisdiction: Diversity

Plaintiff

Paul Young

Individually and as Special

Administrator for the Estate of Kenyetta

Marks

represented by Debra Decarli

Decarli Law

50 California St.

Ste. 1500

San Francisco, CA 94111

(415) 738-6144

Email: [email protected]

PRO HAC VICE

ATTORNEY TO BE NOTICED

Michael K Johnson

Johnson Becker PLLC

33 S 6th St., Ste. 4530Minneapolis, MN 55402

612-333-4662

Fax: 612-339-8168



Robert Charles Decarli

Decarli Law

50 California Street

Suite 1500

San Francisco, CA 94111

(415) 738-6144


PRO HAC VICE


Rolf Fiebiger


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Johnson Becker, Pllc

33 South 6th Street

Suite 4530

Minneapolis, MN 55402

(612) 436-1800


PRO HAC VICEATTORNEY TO BE NOTICED

Tor A. Hoerman

TorHoerman Law LLC

101 W. Vandalia St.

Suite 350

Edwardsville, IL 62025

618-656-4400

Fax: 618-656-4401



V.

Defendant

General Electric Company represented by David Max Layfer

Sidley Austin Llp

1 South Dearborn

Chicago, IL 60603

(312) 853-7358

Email: [email protected] ATTORNEY


Maja C. Eaton

Sidley Austin LLP

One South Dearborn Street

Chicago, IL 60603

(312) 853-7000


LEAD ATTORNEY


Sherry Ann Knutson

Sidley Austin LLP

One South Dearborn Street

Chicago, IL 60603


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(312) 853-7000


LEAD ATTORNEY


Susan M. Brehm

Sidley Austin LLP1 S. Dearborn St.

Chicago, IL 60603

(312) 853-2200


LEAD ATTORNEY


Defendant

GE Healthcare

also known as

General Electric Company

doing business as

GE Healthcare

represented by David Max Layfer

(See above for address)

LEAD ATTORNEY


Maja C. Eaton


LEAD ATTORNEY


Sherry Ann Knutson


LEAD ATTORNEYATTORNEY TO BE NOTICED

Susan M. Brehm


LEAD ATTORNEY


Defendant

GE Healthcare, Inc.

doing business as

GE Healthcare Medical Diagnostics

Defendant

GE Healthcare AS

Defendant


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University of Chicago Medical Center

Date Filed # Docket Text

11/29/2011 1 NOTICE of Removal from Circuit Court of Cook County, Law Division, case

number (11L 6157) filed by GE Healthcare, Inc., General Electric Company

Filing fee $ 350, receipt number 0752-6609597. with Exhibit List(Attachments:

# 1 Exhibit A, # 2 Exhibit B - Part 1, # 3 Exhibit B - Part 2, # 4 Exhibit B - Part

3, # 5 Exhibit C)(Knutson, Sherry) (Entered: 11/29/2011)

11/29/2011 2 CIVIL Cover Sheet (Knutson, Sherry) (Entered: 11/29/2011)

11/29/2011 3 ATTORNEY Appearance for Defendants GE Healthcare, General Electric

Company by Sherry Ann Knutson (Knutson, Sherry) (Entered: 11/29/2011)

11/29/2011 4 NOTIFICATION of Affiliates pursuant to Local Rule 3.2 by GE Healthcare,

General Electric Company (Knutson, Sherry) (Entered: 11/29/2011)

11/29/2011 5 ATTORNEY Appearance for Defendants GE Healthcare, General ElectricCompany by Maja C. Eaton (Eaton, Maja) (Entered: 11/29/2011)


Company by David Max Layfer (Layfer, David) (Entered: 11/29/2011)

11/29/2011 CASE ASSIGNED to the Honorable William J. Hibbler. Designated as

Magistrate Judge the Honorable Arlander Keys. (jn, ) (Entered: 11/29/2011)


Company by Susan M. Brehm (Brehm, Susan) (Entered: 11/30/2011)

11/30/2011 8 MAILED Notice of Removal Letter and an attorney appearance form to counselof record. (mr, ) (Entered: 11/30/2011)

12/06/2011 9 MOTION by Plaintiff Paul Young to remand (Attachments: # 1 Supplement

Memo in Support of Plaintiff's Motion For Remand)(Hoerman, Tor) (Entered:

12/06/2011)

12/06/2011 10 Plaintiff's NOTICE of Motion by Tor A. Hoerman for presentment of motion to

remand 9 before Honorable William J. Hibbler on 12/13/2011 at 09:30 AM.

(Hoerman, Tor) (Entered: 12/06/2011)

12/07/2011 11 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number

0752-6635391. (Decarli, Robert) (Entered: 12/07/2011)


0752-6639078. (Decarli, Debra) (Entered: 12/08/2011)


0752-6641924. (Johnson, Michael) (Entered: 12/09/2011)


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0752-6641974. (Fiebiger, Rolf) (Entered: 12/09/2011)

12/12/2011 15 MOTION by Defendants GE Healthcare, Inc., General Electric Company to stay

Proceedings Pending Final Transfer Decision by JPML and Incorporated

Memorandum of Law (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit

C)(Eaton, Maja) (Entered: 12/12/2011)

12/13/2011 16 MINUTE entry before Honorable William J. Hibbler: Motion hearing held on

12/13/2011 regarding motion to remand 9 , motion to stay 15 . Plaintiff's Motion

to remand 9 is taken under advisement. Defendants to respond by 12/23/2011.

Plaintiff to reply by 12/30/2011. Ruling by mail. Defendants Motion to stay

proceedings pending final transfer decision by JPML 15 is taken under

advisement. Plaintiff to respond by 12/23/2011. Defendants to reply by

12/30/2011. Ruling by mail. Application to appear pro hac vice of Robert

Charles DeCarli 11 , Debra DeCarli 12 , Michael K. Johnson 13 and Rolf

Fiebieger 14 as counsel for plaintiff are granted. Mailed notice (jdh) (Entered:

12/20/2011)

PACER Service Center

Transaction Receipt

12/22/2011 15:57:48

PACER Login: de3363 Client Code: Marks

Description: Docket Report Search Criteria: 1:11-cv-08504

Billable Pages: 3 Cost: 0.24


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