THOMAS W. PHILLIPS, District Judge.
This matter is before the Court on Defendants' Motion to Dismiss [Doc. 8]. On June 4, 2010, Defendants filed a Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants argue that Plaintiff's claims—all based in products liability—do not satisfy the federal pleading requirements, as modified in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
On October 19, 2010, Plaintiff responded in opposition, arguing that: (1) federal pleading requirements do not apply to state law claims removed to federal court; and (2) in any event, Plaintiff satisfied the federal pleading requirements, as modified by Twombly. [Plaintiff's Response to Defendants' Motion to Dismiss, Doc. 13]. On October 28, 2010, Defendants filed a Reply in support of their Motion to Dismiss. [Doc. 15].
Based upon the following, Defendants' Motion to Dismiss [Doc. 8] is
As an initial matter, the Court notes that it has jurisdiction pursuant to 28 U.S.C. §§ 1332, 1441. The following facts are taken mostly from Plaintiff's complaint, and will be assumed as true for purposes of the 12(b)(6) motion. See, e.g., Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.2007) (in ruling upon motions to dismiss under Rule 12(b)(6), a court must "construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff").
On March 16, 2010, Plaintiff filed a product liability action against defendants Boston Scientific Corporation
In her complaint, Plaintiff alleges that she suffered injuries
Plaintiff has filed product liability claims against Boston Scientific and Advanced Bionics, the corporations which allegedly "designed, manufactured, assembled, distributed and sold" the Device. [Id. ¶ V, at 4]. In addition, Plaintiff has sued Scott Stewart, a field sales representative for Boston Scientific, who allegedly "maintained, sold, serviced, controlled, installed and removed" the Device. [Id. ¶ VI, at 5]. Plaintiff has also sued "John Does 1-5," several unidentified defendants [Id.].
Plaintiff has sued Defendants under several theories, including negligence, reckless misconduct, malice, fraud and oppression, and strict liability "in manufacturing, designing, assembling distributing maintaining, repairing, servicing, selling and installation of the Device," and in "failing to include warnings as to its dangerous propensities and handling characteristics." [Id. ¶ X.1, at 7]. While Plaintiff has not clearly identified her causes of action, it appears that she has sued Defendants under theories of defective design, defective manufacturing, and "failure to warn," among others.
On June 4, 2010, Defendants moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants argue that Plaintiff failed to satisfy the federal pleading requirements, as modified in Twombly, 550 U.S. 544, 127 S.Ct. 1955, and Iqbal, 129 S.Ct. 1937. On October 19, 2010, Plaintiff responded in opposition. [Plaintiff's Response to Defendants' Motion to Dismiss, Doc. 13]. On October 28, 2010, Defendants filed a Reply in support of their Motion to Dismiss [Doc. 16]. The matter is now ripe for adjudication.
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). In 2007, the Supreme Court modified the pleading standard in the context of antitrust cases. Twombly, 550 U.S. at 570, 127 S.Ct. 1955. Notably, the Supreme Court held that in order to survive a 12(b) (6) motion to dismiss—which attacks the sufficiency of a complaint—the plaintiff must "state a claim to relief that is plausible on its face." Id. (emphasis added). In 2009, the Supreme Court extended the Twombly (or plausibility) standard to all federal civil cases. Iqbal, 129 S.Ct. at 1953.
Under the new standard, a claim is facially plausible if the plaintiff "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). While this is not akin to a "probability requirement," the plaintiff must show "more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
In ruling upon motions to dismiss under Rule 12(b)(6), a court must "construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff." Directv, 487 F.3d at 476. However, the court "need not accept as true legal conclusions or unwarranted factual inferences." Id. (quoting Gregory v. Shelby Cnty., 220 F.3d 433, 446 (6th Cir. 2000)). See also Iqbal, 129 S.Ct. at 1949 ("[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.") (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Ultimately, this determination—whether a plaintiff's claim is "plausible"—is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950 (citations omitted).
As an initial matter, Plaintiff argues that the Court should look to Tennessee law for pleading requirements. [Plaintiff's Response to Defendants' Motion to Dismiss, Doc. 13 at 4]. In other words, Plaintiff wants the Court to apply Tennessee law—instead of Twombly—in ruling upon the 12(b)(6) motion. [Id.]. According to Plaintiff, the Court "should follow state law pleading requirements since this is a claim based upon state law ..." [Id.].
Plaintiff's argument is without merit. It does not matter whether Plaintiff's claims are based upon state law or federal law: all claims, once removed to federal court, are subject to federal pleading requirements. In Iqbal, the Supreme Court held that Twombly's plausibility standard applies to all civil cases in federal court. 129 S.Ct. at 1953. In Iqbal, the respondents argued that the plausibility standard should be limited to antitrust cases, as in Twombly. Id. The Supreme Court rejected this argument, holding that the plausibility standard applies to all civil cases in federal court:
Id. (emphasis added) (citations and quotations omitted). See also Minger v. Green, 239 F.3d 793, 799-801 (6th Cir.2001) (applying federal pleading rules in a case based upon diversity jurisdiction); Wilkey v. Hull, 366 Fed.Appx. 634, 637 (6th Cir. 2010) (applying Twombly pleading standard in a diversity case to determine whether the plaintiff alleged sufficient facts to support state law claims); Foust v. Stryker Corp., No. 2:10-cv-00005, 2010 WL 2572179, at *2 (S.D.Ohio June 22, 2010) (applying Twombly pleading standard to a complaint alleging product liability claims under Ohio law).
Although the complaint was filed in state court, it was eventually removed to federal
Defendants argue that Plaintiff's complaint does not satisfy Twombly because it does not "plead sufficient factual allegations concerning how the product was purportedly defective, and how the purported defect caused her alleged injury." [Defendants' Reply in Support of their Motion to Dismiss, Doc. 15 at 3]. In response, Plaintiff argues that her complaint satisfies Twombly because it put Defendants "on notice that this it [sic] is a products liability case, that the Defendants[s] are the maker of a defective product, and that this defective product had to be removed from the Plaintiff's body." [Plaintiff's Response in Opposition to Defendants' Motion to Dismiss, Doc. 14 at 3]. Having reviewed Plaintiff's complaint, the Court finds that it fails to allege sufficient facts to support a product liability action.
While Plaintiff has filed several claims against Defendants, each is covered by the Tennessee Product Liability Act of 1978 ("TPLA"), T.C.A. §§ 29-28-101 et seq.
In Tennessee, there are two tests for determining whether a product is unreasonably dangerous. See T.C.A. § 29-28-102(8). Under the "consumer expectation test," this "requires a showing that the product's performance was below reasonable minimum safety expectations of the ordinary consumer having ordinary, `common' knowledge as to its characteristics." Jackson v. Gen. Motors Corp., 60 S.W.3d 800, 806 (Tenn.2001). Under the "prudent-manufacturer test," the Court "imputes knowledge of the dangerous condition to the manufacturer, and then asks whether, given that knowledge, a prudent manufacturer would market the product. As the Tennessee Supreme Court has articulated, `[t]he consumer expectation test is, by definition, buyer oriented; the prudent manufacturer test, seller oriented.'" Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 428-29 (6th Cir.2007) (citations omitted). Only sellers and manufacturers may be held liable under the TPLA.
In all product liability actions, "[a] plaintiff must show that there was something wrong with the product, and trace the plaintiff's injury to the specific defect." King, 37 S.W.3d at 435 (citations omitted). See also Browder v. Pettigrew, 541 S.W.2d 402, 404 (Tenn.1976) (holding that in order to establish a defective design claim, the plaintiff must "trace the injury to some specific error in construction or design of the [product]" and that "in a products liability action in which recovery is sought under the theory of negligence, the plaintiff must establish the existence of a defect in the product just as he does in an action where recovery is sought under the strict liability theory or for breach of warranty, either express or implied.") (citations omitted). At this stage in the proceedings, Plaintiff must allege facts for the Court to infer that the Device was defective, and that Plaintiff's injuries were caused by the
The fact that Plaintiff allegedly suffered an injury from the Device does not show that the Device was defective. See King, 37 S.W.3d at 435 ("[i]n a product liability claim, the fact that a plaintiff is injured is not proof of a defect in the product") (citing Whaley v. Rheem Mfg. Co., 900 S.W.2d 296, 299 (Tenn.Ct.App.1995)); King, 37 S.W.3d at 435 (recognizing that "the failure or malfunction of the device, without more, will not make the defendant liable") (citing Harwell v. Am. Med. Sys., Inc., 803 F.Supp. 1287, 1298 (M.D.Tenn.1992)); Allen v. Am. Med. Sys., Inc., 1989 WL 105626 (Tenn.Ct.App. Sept. 15, 1989) (declining to find liability based upon the fact that the device did not function). Even assuming that the Device injured Plaintiff, that is not enough to show that the Device was defective or unreasonably dangerous—an element necessary for each of Plaintiff's claims. Instead of alleging facts for the Court to infer that the Device was defective or unreasonably dangerous, Plaintiff asserts conclusory allegations. For example, Plaintiff alleges that the "defective medical device [the Device] was not fit for the purpose intended and was defective and therefore caused the plaintiff harm." [Plaintiff's Complaint, Doc. 1-1, ¶ IV, at 6].
The facts of the present case are similar to Frey v. Novartis Pharm. Corp, 642 F.Supp.2d 787 (S.D.Ohio 2009). In Frey, the plaintiff filed a product liability action in state court against the manufacturer of an anti-seizure medication. Id. at 790. The plaintiff alleged that she suffered health complications after ingesting the medication. Id. The plaintiff sued the manufacturer under theories of defective design and manufacturing (under Ohio law). Id. In support of her claims, the plaintiff alleged the following:
Id.
The defendant manufacturer removed the action to federal court, and then moved to dismiss under Rule 12(b)(6). Id. In particular, the defendant argued that the complaint failed to satisfy Twombly's pleading requirements. In response, the plaintiff argued that she could not "particularly allege that the scientific makeup of the drug is defective for a specific reason without conducting discovery, which requirement would exceed Twombly's plausibility standard." Id. at 792. The district court dismissed the defective design and manufacturing claims, finding that the complaint failed to satisfy Twombly:
Id. at 795.
Like the plaintiff in Frey, Plaintiff in the present case asserts legal conclusions about the nature of the Device. For example, Plaintiff alleges that Defendants "failed to warn" others of the "dangerous propensities and handling characteristics" of the Device. [Plaintiff's Complaint, Doc. 1-1, ¶ X.1, at 7]. However, Plaintiff does not allege any facts for the Court to infer that the Device was unreasonably dangerous. To plead a "failure to warn" claim
Plaintiff's complaint fails for a second reason: she did not allege facts for the Court to infer that the condition of the Device—based upon an alleged design or manufacturing defect—caused her alleged injuries. As Tennessee courts make clear, it is not enough that Plaintiff suffered injuries from using (or in this case, having implanted) a product. See, e.g., Browder, 541 S.W.2d at 404 (holding that in order to establish a product liability claim, the plaintiff must "trace the injury to some specific error in construction or design of the [product]"). While Plaintiff alleges that the Device caused her pain, she does not allege facts regarding how an alleged defect—whether it be in design or manufacturing—caused her injuries. The relevant question is not whether the Device caused her pain; the issue is whether the alleged defective design or manufacturing of the Device caused her pain. See id.
On a final note, the Court finds Plaintiff's allegations regarding a recall insufficient to support her product liability claims. While a Notice of Recall [Doc. 1-1, at 12-15] was issued in February 2008
In ruling upon a Rule 12(b)(6) motion to dismiss, courts consider the complaint as well as "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Bowers v. Wynne, 615 F.3d 455, 470 (6th Cir.2010) (emphasis added) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007)). See also Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir.2008) ("When a court is presented with a Rule 12(b)(6) motion, it may consider the Complaint and any exhibits attached thereto... so long as they are referred to in the Complaint and are central to the claims contained therein.") (citation omitted). Because the complaint expressly mentions the recall, and because it is central to Plaintiff's product liability claims, the Notice of Recall [Doc. 1-1 at 12-15] will be incorporated by reference. The Notice of Recall, which was issued on February 27, 2008, states that the Device was recalled for the following reason:
[Id. at 14]. In addition, Boston Scientific issued a Field Safety Notice
[Field Safety Notice, Doc. 1-1 at 16]. The Field Safety Notice states that only "8 patients out of over 12,7000 implanted IPGs (0.063%)" suffered from the recall problem. [Id. at 17].
While Plaintiff attached the Notice of Recall [Doc. 1-1 at 12-15] and Field Safety Notice [Doc. 1-1 at 16-17] to her complaint, she failed to allege facts for the Court to infer a connection between the recall, the condition of the Device, and her
As the Supreme Court stated in Iqbal, "[a] pleading that offers `labels and conclusions' or `a formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Plaintiff's complaint fails for two reasons. First, Plaintiff failed to allege facts for the Court to infer that the Device was defective or unreasonably dangerous. Second, Plaintiff failed to allege facts for the Court to infer that the product's condition caused Plaintiff's alleged injuries.
Based upon the foregoing, Defendants' Motion to Dismiss [Doc. 8] is
