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

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

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

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