United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM OPINION AND ORDER
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
products liability action, Defendants have filed a Motion to
Dismiss (Doc. No. 5), arguing that the Complaint “fails
to comply with the pleading requirements of Federal Rules 8
and 12, as articulated by the Supreme Court in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662 (2009).” (Doc.
No. 5 at 1). Because the Court disagrees, the Motion will be
Ashcroft and Twombly, the Supreme Court
“raised the bar for pleading requirements beyond the
old ‘no-set-of-facts' standard of Conley v.
Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957),
that prevailed for the last few decades.” Courie v.
Alcoa Wheel & Forged Prod., 577 F.3d 625, 629 (6th
Cir. 2009). In doing so, however, it “did not
significantly alter notice pleading or impose heightened
pleading requirements for all federal claims.”
Weisbarth v. Geauga Park Dist., 499 F.3d 538, 542
(6th Cir. 2007). Instead, “Rule 8(a)(2) of the Federal
Rules of Civil Procedure generally requires only a plausible
‘short and plain' statement of the plaintiff's
claim, not an exposition of  legal argument[s].”
Skinner v. Switzer, 562 U.S. 521, 530, 131 S.Ct.
1289, 179 L.Ed.2d 233 (2011). This short and plain statement
need only contain “‘sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.'” Bandy v. Fifth Third
Bank, 519 Fed.Appx. 900, 902 (6th Cir. 2013) (citation
to the Complaint, Kai Griffin was admitted to St. Thomas
Midtown Hospital in Nashville, Tennessee for a laproscopic
Roux-en-Y gastric bypass procedure. (Complaint, Doc. No. 1-1,
¶ 11). That procedure was preformed by Dr. James G.
the procedure, Dr. McDowell utilized a “DST SERIES EEA
OrVil 25mm device” (“OrVil Device”).
(Id. ¶¶ 8, 11). That surgical instrument
was “designed manufactured, and distributed” by
Defendants. (Id. ¶ 8).
OrVil Device consists of a nasogastric tube, and a
disc-shaped part referred to as an “anvil.” The
tube is inserted into a patient's nose or mouth and
pushed into the stomach. The anvil is connected to the tube
by a plastic coupling measuring approximately 3 mm in length
by 1mm in width. (Id ¶ 12).
performing the surgery, Dr. McDowell removed the anvil from
the nasogastric tube and coupling. In doing so, the coupling
“broke off or separated from the nasogastric tube,
” and fell into Mr. Griffin's peritoneal cavity.
(Id.). The “coupling piece is not manufactured
or designed to break off or separate from the nasogastric
tube during surgery, ” nor was such “an
unintended and unexpected result . . . apparent to the
ordinary users of the OrVil device[.]” (Id.
that the coupling piece had separated from the tube, Dr.
McDowell searched for, but could not find, it. As a
consequence, Dr. McDowell was forced to complete the surgery
and close the surgical site without removing the coupling.
(Id. ¶¶ 15, 16). During post-op, Dr.
McDowell explained to Mr. Griffin what had happened. In a
follow-up visit when Mr. Griffin complained of sharp
intermittent pain, Dr. McDowell told him that another surgery
might be necessary to remove the coupling. (Id.
¶¶ 17, 20).
February 4, 2017, Mr. Griffin went to the Williamson Medical
Center Emergency Department complaining of shoulder and
abdominal pain. A CT scan revealed the presence of a foreign
body that was later determined to be the plastic coupling
piece. (Id. ¶¶ 21, 22).
February 6, 2017, Mr. Griffin followed up with Dr. McDowell.
The next day, at St. Thomas Midtown Hospital, Dr. McDowell
laparoscopically removed the coupling from Mr. Griffin's
abdomen. Mr. Griffin was discharged the next day.
addition to alleging that the coupling device should not
separate during surgery, Plaintiffs allege that (1)
“the OrVil Device was in a defective condition,
unreasonably dangerous, and unsafe for its intended purpose
when it left Defendants' hands” (id.
¶ 32); (2) “Defendants failed to give instructions
. . . as to its use that would make it safe”
(id. ¶ 33); (3) Defendants “fail[ed] to
use reasonable care in the design, manufacture, inspection,
testing, and marketing of the OrVil Device”
(id. ¶ 41); (4) the OrVil device “was
unaccompanied by appropriate warnings” (id.
¶ 44); (5) “Defendants failed to timely and
reasonably warn of material facts regarding the safety and
efficacy of the OrVil device' (id. ¶ 46);
and (6) “Defendants impliedly represented and warranted
that the OrVil Device [was] fit for its intended and
reasonably anticipated purposes and uses, ” but it was
not (id. ¶ 49). Based upon Defendants acts and
omissions, Plaintiffs claim that, not only did Mr. Griffin
have to visit the Emergency Room and undergo an additional
surgery, he “experienced significant pain”
between the two surgeries, and “had severe anxiety over
the fact that a broken product was somewhere in his
body.” (Id. ¶ 27).
the factual allegations in the Complaint are accepted as
true, they are more than sufficient to place Defendants on
notice of Plaintiffs' claims. They also plausibly state
causes of action for strict liability, negligence, failure to
warn, and breach of warranty.
rely on Brown v. Crown Equip. Corp., 181 S.W.3d 268,
282 (Tenn. 2005) for the proposition that “[t]he
plaintiff . . . must trace his or her injury to the defect,
” and on King v. Danek Med., Inc., 37 S.W.3d
429, 435 (Tenn. Ct. App. 2000) for the proposition that
“unless there is a showing that the particular defect
or dangerous condition proximately caused the plaintiff's
injury, the manufacturer is not liable.” True enough,
but Defendants place the cart before the horse:
Brown was decided in the context of a motion for a
directed verdict, and King on a motion for summary
judgment. Indeed, after discussing that very language from
those cases, the Sixth Circuit “admoni[shed] that
‘causal weaknesses' will more often be fodder for a
summary-judgment motion under Rule 56 than a motion to
dismiss under Rule 12(b)(6).” Jackson v. Ford Motor
Co., 842 F.3d 902, 909-10 (6th Cir. 2016).
also rely on Haynes v. Hamilton Cty., 883 S.W.2d
606, 611-12 (Tenn. 1994) that set forth the three-prong test
for establishing proximate cause in Tennessee: “(1) the
tortfeasor's conduct must have been a ‘substantial
factor' in bringing about the harm being complained of;
(2) there is no rule or policy that should relieve the
wrongdoer from liability because of the manner in which the
negligence has resulted in the harm; and (3) the harm giving
rise to the action could have reasonably been foreseen or
anticipated by a person of ordinary intelligence and
prudence.” Once again, that case was decided on summary
judgment. Further, in Jackson, the Sixth ...