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Moore v. C. R. Bard, Inc.

United States District Court, E.D. Tennessee, Chattanooga

November 14, 2016

RONNIE MOORE, Plaintiff,
v.
C.R. BARD, INC., JOHNSON & JOHNSON, and ETHICON, INC., Defendants.

          MEMORANDUM OPINION

          THOMAS W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE.

         This products liability action is before the Court on several pending motions. Previously, defendant C.R. Bard, Inc. (hereinafter “Bard”) filed a motion to dismiss [Doc. 13] and defendants Johnson & Johnson and Ethicon, Inc. (collectively hereinafter “Ethicon”) filed a motion for judgment on the pleadings [Doc. 17]. In response to those motions, plaintiff sought and was granted leave to amend his complaint [Doc. 36] and the amended complaint was filed on August 24, 2016 [Doc. 35]. In response, defendants Ethicon and Bard filed motions to dismiss [Docs. 37, 39 respectively] the amended complaint for failure to state any plausible claims against the defendants pursuant to Fed.R.Civ.P. 12(b)(6). Because the plaintiff's amended complaint supersedes the original complaint, see In re Refrigerant Compressors Antitrust Litigation, 731 F.3d 586, 589 (6th Cir. 2013), the first motion to dismiss and motion for judgment on the pleadings [Docs. 13, 17] will be DENIED as moot.

         After considering the relevant briefs in support of and in opposition to the pending motions [Docs. 38, 40, 41, 42, 43], the Court finds that the remaining motions to dismiss [Docs. 37, 39] should be GRANTED.

         I. Relevant Facts[1]

         On April 25, 2016, plaintiff Ronnie Moore had a surgical repair of the left direct inguinal hernia during which two mesh products were implanted in his body [Doc. 35 at ¶ 12].[2] Defendants Ethicon and Bard “designed, manufactured, packaged, labeled, marketed, sold and distributed” the prolene mesh products that were used in plaintiff's hernia repair [Id. at ¶¶ 1, 4, 7]. Specifically, plaintiff alleges that Bard manufactured the product “3D Max” Mesh, large size of 10.8 cm by 16.0 cm, and Ethicon manufactured a prolene mesh product size 3” by 8” [Id. at ¶¶ 1, 7]. “Both products are made of polypropylene and are not medically safe to be implanted in the body” [Id. at ¶ 11]. Both products have been marketed as “a safe, effective, reliable, medical device” and “safer and more effective hernia treatment products” [Id. at ¶ 8]. Plaintiff claims that both defendants “omitted the risks, dangers, defects, and disadvantages” of their respective products when advertising, promoting, marketing, and distributing the products [Id. at ¶¶ 9-10].

         Following his hernia repair surgery, plaintiff claims his condition “has worsened due to complications of one or both mesh products” [Id. at ¶ 13]. He has “lost feeling in most of his left leg” and has pain in the surrounding areas [Id.]. “Plaintiff has limited mobility and cannot perform basic tasks” [Id.]. Plaintiff has suffered from seizures and erectile dysfunction [Id.]. Plaintiff claims that the mesh products have “caused severe damage to the Plaintiff's abdomen region and leg around where the hernia occurred” [Id. at ¶ 20]. Plaintiff claims that additional medical treatment has been unable to determine a remedy for his problems and that removal of the mesh products is impossible [Id. at ¶¶ 14, 18(i)].

         Plaintiff asserts four counts against both defendants: (1) strict products liability [Id. at ¶¶ 29-35]; (2) negligence [Id. at ¶¶ 36-41]; (3) failure to warn [Id. at ¶¶ 42-46]; and (4) breach of express and implied warranty [Id. at ¶¶ 47-51]. Plaintiff claims that he has suffered personal injury, pain and suffering, emotional distress, and has endured permanent injury and will continue to incur medical expenses [Id. at ¶¶ 34, 40, 45, 50]. Plaintiff seeks compensatory and punitive damages [Id. at p. 9].

         II. Standard of Review

         Federal Rule of Civil Procedure 8(a)(2) sets out a liberal pleading standard, Smith v. City of Salem, 378 F.3d 566, 576 n.1 (6th Cir. 2004), requiring only “‘a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to ‘give the [opposing party] fair notice of what the . . . claim is and the grounds upon which it rests, '” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Detailed factual allegations are not required, but a party's “obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions.” Twombly, 550 U.S. at 555. “[A] formulaic recitation of the elements of a cause of action will not do, ” nor will “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         In deciding a Rule 12(b)(6) motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, draw all reasonable inferences in favor of the plaintiff, and determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citation omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief will [ultimately] . . . be a context-specific task that requires th[is Court] to draw on its judicial experience and common sense.” Id. at 679.

         III. Analysis

         The pending motions present similar arguments. First, both defendants argue that all of plaintiff's claims - strict liability, negligence, failure to warn, and breach of express and implied warranty - are encompassed by the Tennessee Products Liability Act (“TPLA”), Tenn. Code Ann. §§ 29-28-101 - 29-28-108 [Doc. 38 at pp. 4-5; Doc. 40 at pp. 11-17]. Plaintiff has not responded to or contested this argument. Both defendants also argue that the amended complaint does not contain specific factual allegations by which the Court could infer that a specific defect in one or both of the mesh products caused plaintiff's injuries [Doc. 38 at pp. 5-9; Doc. 40 at pp. 11-17]. Moreover, both defendants point out that the complaint generally alleges that both defendants are responsible for his injuries without alleging any specific defect in either product or a link between the alleged defect(s) and his injuries [Doc. 38 at pp. 6-9; Doc. 40 at pp. 13-17]. Bard also argues that plaintiff fails to allege that an alternative warning would have changed his unidentified physician's actions and that change would have prevented plaintiff's injuries [Doc. 40 at pp. 15-16].

         Plaintiff contends that he has sufficiently alleged that the mesh products were defective and/or unreasonably dangerous, that the defect existed at the time the products left the manufacturers' control, and that plaintiff's injuries were proximately caused by the defendants' products [Doc. 41 at pp. 4-7]. Plaintiff points out that both defendants have been sued for problems with similar products [Id. at p. 7]. Plaintiff also argues that he has pled his claims with as much specificity as possible given the amount of information publicly available to him [Id. at pp. 7-9]. Attached to his response, plaintiff has submitted two information sheets for Bard 3DMax Mesh and Bard Mesh and one information sheet on Ethicon Prolene as examples of the defendants' advertisements and contends that the products do not perform as promised [Docs. 41-1, 41-2].[3]

         In reply, defendants reiterate that plaintiff's allegations are conclusory and insufficient to plausibly allege that the products were defective or that his injuries were a result of the defects [Docs. 42, 43]. The defendants also note that plaintiff does not address their arguments that he failed to distinguish his claims against them and that he cannot simply rely on forthcoming discovery to plead the specific facts of his medical condition, information which is within his purview. Bard ...


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