J&J Unit Mentor Defeats Appeal in Ruptured Breast Implant Suit

J&J unit Mentor Corp. is entitled to have a woman’s breast implant injury suit dismissed with prejudice based on the perception she improperly forum shopped, the Eighth Circuit affirmed Tuesday.

The plaintiff’s lack of explanation for seeking a voluntary dismissal without prejudice supports the inference she was looking to avoid an unfavorable judgment or an unfavorable forum. The district court, therefore, properly dismissed the suit for good, the U.S. Court of Appeals for the Eighth Circuit said.

Diane Graham received Mentor silicone breast implants in 2000. In 2018, Graham was hurt in a car accident and the implants ruptured. She had them removed and sued Mentor and others in a Missouri state court.

Mentor moved the suit to the U.S. District Court for the Eastern District of Missouri. That court sent her claims against the driver back to state court and denied Mentor’s motion for dismissal on preemption grounds, saying it raised fact questions that should be addressed in a motion for summary judgment.

Graham then sought to voluntarily dismiss the suit without prejudice but didn’t explain why, the appeals court said. Mentor responded, arguing the motion should be denied or the suit dismissed with prejudice because Graham was attempting to avoid an adverse judgment.

Graham’s reply didn’t address those issues, but reiterated that dismissal without prejudice wouldn’t harm the parties because the case was just beginning, the Eighth Circuit said.

Because Graham had moved for voluntary dismissal after Mentor filed its answer to her complaint, the action could be dismissed only by court order.

Among the factors a court should consider when deciding whether to allow voluntary dismissal is whether the party has explained why it wants dismissal, the appeals court said.

One isn’t permitted to dismiss merely to escape an adverse decision or to seek a more favorable forum, it said.

Graham’s arguments that the case was in its early stage, no discovery had taken place, and it hadn’t been set for trial “are relevant but not determinative,” the appeals court said.

On appeal, Graham still failed to provide a justification for her motion, it said.

The only relief she seeks on appeal, other than remand, is voluntary dismissal without prejudice, “reinforcing the inference that her motive is to avoid an adverse judgment in an unfavorable forum,” the court said.

Graham’s appeal from the district court’s refusal to remand claims against Mentor wasn’t properly before the appeals court, it said.

Judge James B. Loken wrote the opinion, joined by Judges Lavenski Smith and Michael J. Melloy.

The Krupp Law Firm represented Graham. Tucker & Ellis represented Mentor.

The case is Graham v. Mentor Worldwide LLC, 8th Cir., No. 19-03350, 5/25/21.