MARTIN L. C. FELDMAN, District Judge.
Before the Court is a motion to dismiss for failure to state a claim by Stryker Corporation and Memometal Inc., USA. For the reasons that follow, the motion is GRANTED.
This medical malpractice and medical device product liability lawsuit arises out of foot surgery and subsequent surgeries to replace broken toe implants.
On March 23, 2012 Mr. Flagg underwent foot surgery in which implants were placed in his second and third toes. Later that year on December 10, 2012, when Dr. Denise Elliot examined Mr. Flagg, xrays revealed that the implants placed in his toes had broken. A week later, Dr. Elliot removed the broken implants and placed pins in the toes. As a result of complications from the December 17 surgery, Mr. Flagg underwent two additional surgeries.
In early December 2013 Mr. Flagg filed an administrative complaint with the Louisiana Patient's Compensation Fund, alleging medical malpractice against West Jefferson, Dr. Elliot, and the Foot and Ankle Center, LLC; he requested a medical panel review of his claims. Several days after adding the Foot and Ankle Center as a defendant in his administrative complaint with the Louisiana Patient's Compensation Fund, on December 13, 2013 Flagg sued Dr. Denise Elliot, Foot and Ankle Center, Stryker Corporation, Memometal Inc., USA, Jefferson Parish Hospital Service District No. 1, d/b/a West Jefferson Medical Center, and various fictitious insurance companies in state court in Jefferson Parish.
Thereafter the defendants urged the Court to dismiss the plaintiff's claims: West Jefferson sought dismissal of the plaintiff's claims on the ground that he failed to exhaust his administrative remedies
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a party to move for dismissal of a complaint for failure to state a claim upon which relief can be granted. Such a motion is rarely granted because it is viewed with disfavor.
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief."
"`[T]he central issue [in deciding a motion to dismiss] is whether, in the light most favorable to the plaintiff, the complaint states a valid claim for relief.'"
The only issue presented by the defendants' motion is whether or not the plaintiff, by amending his defective state court petition, has stated a plausible claim for relief under the Louisiana Products Liability Act as to Stryker and Memometal.
The Louisiana Products Liability Act provides the exclusive remedy against product manufacturers for injuries caused by their products. La.R.S. 9:2800.52;
Stryker and Memometal contend that, notwithstanding the plaintiff's amended pleading, the plaintiff has failed to state a claim against them under any of these theories. The plaintiff counters that his amendment cures the deficiencies of his prior pleading and that, even if not, dismissing his complaint before an opportunity for discovery would be prejudicial. The Court disagrees; the plaintiff still pleads no facts that would allow the Court to infer that Stryker and Memometal, the two remaining defendants, are liable for manufacturing an unreasonably dangerous product.
As before, the factual allegations contained in the plaintiff's state court petition are:
By his amended complaint, the plaintiff reiterates the entirety of his prior allegations
The Court considers whether Mr. Flagg has alleged a right to relief under the LPLA that is plausible on its face. The parties dispute whether these alleged facts comply with the pleading standards under Federal Rule of Civil Procedure 8(2)(a). The defendants insist that the plaintiff still fails to allege that the toe implants were unreasonably dangerous through any one of the four theories: (1) defective design; (2) defective construction or composition; (3) because of an inadequate warning; or (4) because of a breach of express warranty. The Court agrees.
A product's design is unreasonably dangerous only if the plaintiff demonstrates that, at the time the product left the manufacturer's control, "`[t]here existed an alternative design for the product that was capable of preventing the claimant's damage' and that the danger of the damage outweighed the burden on the manufacturer of adopting the alternative design."
In his amended complaint, Mr. Flagg alleges that the defendants' product was unreasonably dangerous in design "particularly the shape and incorrect sizing contributed to the fracture of the implant and the difficulty in removal once implants broke." The defendants contend that these conclusory allegations fail to satisfy federal pleading standards. The Court agrees. Not only does the plaintiff fail to identify the product at issue, but he fails to allege that an alternative design for the product (an implant of a different shape or size, perhaps) exists, that the alternative design was capable of preventing the plaintiff's injuries, and that the danger of the damage outweighed the burden on the defendants of adopting the alternative design.
A defective construction claim provides a remedy for harm caused by a product defect "due to a mistake in the manufacturing process."
With respect to the toe implants' allegedly defective construction or composition, the plaintiff now alleges "particularly a different alloy other than the Memometal NiTinol would have a better fatigue life and/or product life, the body temperature activated shape memory of the alloy used interfered and negatively influenced the fatigue life and/or product life expectancy of the implant." The defendants contend that these allegations fail to allege facts that, if proven, would demonstrate a mistake in the manufacturing process or how the device deviated from the intended design. The Court agrees.
The plaintiff's allegations, if proven, would demonstrate that a different alloy from the one used has a better fatigue life and more resilient shape memory, which would enhance the life expectancy of the product (such that it would not have broken so shortly after placement). However, at most, the plaintiff's allegations, if proven, suggest that a different product altogether should have been used, not that the device used deviated from its intended design. Complicating matters, the plaintiff still fails identify the toe implants product at issue (presumably the product at issue is composed of "Memometal NiTinol"). Absent factual allegations addressing how (or even simply that) the product deviated from Stryker's or Memometal's normal production standards, the plaintiff fails to meet the plausibility standard.
To establish an inadequate warning claim, a plaintiff must show that: (1) the defendant failed to warn the plaintiff's doctor of a risk associated with the product that was otherwise unknown to the doctor; and (2) the failure to warn the doctor was both a cause in fact and the proximate cause of the plaintiff's injury.
Mr. Flagg alleges that the defendants failed to provide adequate warnings "regarding product life expectancy and limitation of movement once implants are placed as Plaintiff's implants failed within months of placement." Noticeably absent from these allegations is any suggestion that the defendants failed to warn the plaintiff's implanting physician of these particular risks, that these risks were unknown to Dr. Elliot, or that but for the allegedly inadequate warning, Dr. Elliot would not have used the implants. The plaintiff still fails to allege that the defendants' product was made unreasonably dangerous because it was not accompanied by adequate warnings.
Finally, the Court turns to the breach of express warranty claim. The plaintiff alleges that the defendants' toe implants fail to "conform to an express warranty of the manufacturer as to expected product life, comprehensive size range of implants, and ability to move digits once implants are placed." The defendants contend that the plaintiff fails to allege facts suggesting that an express warranty induced the plaintiff or his doctor to use the device; an essential element of an LPLA breach of express warranty claim. La.R.S. 9:2800.58;
The defendants' motion to dismiss is GRANTED. The plaintiff has already been granted one opportunity to amend and, although his allegations were marginally improved, he nevertheless failed to advance factual allegations that support a plausible claim for relief under the Louisiana Products Liability Act. Accordingly, the plaintiff's claims against Stryker and Memometal are hereby dismissed with prejudice.