United States District Court, E.D. Tennessee, Chattanooga
W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE.
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.
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.
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 ¶
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 ¶¶
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)].
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].
Standard of Review
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,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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.
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].
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.
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 ...