Armstrong v. Atrium Med. Corp.
| Decision Date | 10 November 2022 |
| Docket Number | 1:22-cv-03007-MKD |
| Parties | BEAU ARMSTRONG, Plaintiff, v. ATRIUM MEDICAL CORP. and MAQUET CARDIOVASCULAR U.S. SALES, LLC, Defendants. |
| Court | U.S. District Court — District of Washington |
Before the Court is Defendants Atrium Medical Corporation (“Atrium”) and Maquet Cardiovascular U.S. Sales LLC's (“Maquet”) Motion to Dismiss Complaint, ECF No. 15. On September 1, 2022, the Court heard argument from the parties. Plaintiff was represented by Troy A. Brenes and Maria S. Diamond. Defendants were represented by Thomas D. Adams and Paul A. LaFata. For the reasons stated below, the Court grants in part and denies in part Defendants' Rule 12(b)(6) Motion.
Plaintiff underwent hernia repair surgery in 2018. ECF No. 1 at 8. Plaintiff's surgeon inserted ProLite, a polypropylene surgical mesh, into Plaintiff's abdomen. ECF No. 1 at 8. Approximately two years later, Plaintiff's hernia reoccurred, and he underwent revision surgery. ECF No. 1 at 8. Plaintiff alleges that the reoccurrence and other injuries he incurred are the result of the insertion of the ProLite mesh. ECF No. 1 at 2, 8-10. Plaintiff brought suit against Defendants Atrium, Maquet, and Getinge AB (“Getinge”), related corporations,[1] alleging against each various tort claims and a contract claim under the Washington Products Liability Act (“WPLA”) for each Defendant's alleged role in designing, manufacturing, and distributing the ProLite mesh. ECF No. 1 at 2, 9-10. Specifically, Plaintiff asserts the following claims under the WPLA: (1) Design Defect, (2) Manufacturing Defect, (3) Failure to Warn, (4) Breach of Warranty (Express and Implied), (5) Negligence, and (6) Negligent Misrepresentation. ECF No. 1 at 9-10. Plaintiff seeks damages, including punitive damages. ECF No. 1 at 10-11.
Defendants seek dismissal alleging Plaintiff inadequately pled facts with respect to each of the claims, excluding negligence. ECF No. 15 at 3-11. Defendants argue Plaintiff's negligence claim is precluded as a matter of law. ECF No. 15 at 11. Defendants also assert that Plaintiff cannot recover punitive damages as a matter of law. ECF No. 15 at 11-12.
Rule 8(a)(2) requires a pleading to include “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). If the complaint is devoid of a cognizable legal theory or it lacks “sufficient facts alleged under a cognizable legal theory” a court must dismiss under Rule 12(b)(6). Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To avoid dismissal, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Facial plausibility exists when a complaint pleads facts permitting a reasonable inference that the defendant is liable to the plaintiff for the misconduct alleged.” Luther v. Bos. Sci. Corp., No. 4:20-CV-05085-SMJ, 2020 WL 12833586, at *2 (E.D. Wash. Sept. 2, 2020) (citing Iqbal, 556 U.S. at 678). The requisite reasonable inference can be made when a plaintiff has pled facts, not just conclusory statements or a “formulaic recitation of the elements of a cause of action.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
When analyzing the arguments in Defendants' Rule 12(b)(6) motion, the Court must presume that all facts pled in the Complaint are true and draw all reasonable inferences from them in his favor. Twombly, 550 U.S. at 555-56. The Court is not required, however, to accept a legal conclusion as true when it is masquerading as a factual allegation. Papasan v. Allain, 478 U.S. 265, 286 (1986).
The Washington legislature enacted the WPLA in 1981 to create a single cause of action for products liability cases. Bylsma v. Burger King Corp., 293 P.3d 1168, 1170 (Wash. 2013). The WPLA is “the exclusive remedy for product liability claims.” Macias v. Saberhagen Holdings, Inc., 282 P.3d 1069, 1073 (Wash. 2012). It allows a plaintiff to seek relief for “harm caused by the manufacture, production, making, construction, fabrication, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, storage or labeling of [a] product.” RCW § 7.72.010(4). The WPLA replaced any previously existing common law remedies “except fraud, intentionally caused harm or a claim or action brought under the consumer protection act.” Id.; Wash. Water Power Co. v. Graybar Elec. Co., 774 P.2d 1199, 1202-05, 1207, amended sub nom. Wash. Power Co. v. Graybar Elec. Co., 779 P.2d 697 (Wash. 1989); Wash. State Physicians Exch. & Ass'n v. Fisons Corp., 858 P.2d 1054, 1066 (Wash. 1993); La.-Pac. Corp. v. ASARCO Inc., 24 F.3d 1565, 1584 (9th Cir. 1994).
Plaintiff alleges that Defendants defectively designed the ProLite mesh. ECF No. 1 at 9. A sufficient design defect claim requires Plaintiff to allege “that, at the time of manufacture, the likelihood that [the ProLite Mesh] would cause plaintiff's harm or similar harms, and the seriousness of those harms, outweighs [Defendants'] burden to design a product that would have prevented those harms and the adverse effect” a practical, feasible alternative design would have on the product's usefulness. RCW § 7.72.030(1)(a). Defendants contend that Plaintiff's claim is insufficiently plead. ECF No. 15 at 3-6.
There are two tests under which a plaintiff may assert a defendant is liable for a defectively designed product: (1) Risk Utility or (2) Consumer Expectations. Thongchoom v. Graco Children's Prod., Inc., 71 P.3d 214, 217 (Wash.Ct.App. 2003). Each has its own requirements. The Risk Utility Test requires, among other things, that Plaintiff establish a feasible alternative design. See id. Plaintiff has not pled any facts regarding Defendants' burden to create a practical, feasible alternative design. Indeed, Plaintiff concedes this point. ECF No. 21 at 4 (“Here, the consumer expectation test applies and Plaintiff is not required to allege a feasible alternative design.”). Accordingly, Plaintiff has failed to meet the pleading requirements under the Risk Utility Test. Plaintiff may nevertheless establish Defendants' manufacturer liability by showing the “[the ProLite mesh] was unsafe to an extent beyond that which would be contemplated by the ordinary consumer.” RCW § 7.72.030(3); Thongchoom, 71 P.3d at 218. The ordinary consumer being Plaintiff, not Plaintiff's physician or surgeon as Defendants contend.[2] Thongchoom, 71 P.3d at 218.
Plaintiff alleges the following: (1) the ProLite mesh is “typically made wholly or partly of polypropylene” which is a petroleum-based plastic, and polypropylene is not biologically inert; (2) Defendant Atrium changed the design of the ProLite mesh by replacing the approved polypropylene resin with one that did not contain antioxidant additives, and Defendant Atrium made this change without obtaining clearance from the FDA; (3) Defendant Atrium also made this change despite information that the replacement polypropylene resin it had chosen in the design change was not approved for permanent human implantation. ECF No. 1 at 4, 6. Moreover, Plaintiff asserts that the insertion of surgical mesh, generally, can cause inflammation among other contemporaneous ailments, ECF No. 1 at 4, and the insertion of the ProLite mesh (with “unstabilized polypropylene”) can cause serious medical problems and complications. ECF No. 1 at 7. Complications are alleged to arise as the mesh degrades in the human body. ECF No. 1 at 5, 7.
Plaintiff had a parastomal hernia repaired using the ProLite mesh in 2018. ECF No. 1 at 8. Plaintiff's hernia reoccurred, and he suffered the “onset of severe groin pain.” ECF No. 1 at 8. Plaintiff alleges that the unit of the ProLite mesh that had been used in Plaintiff's 2018 surgery “eroded into Plaintiff's bowel and caused a peristomal abscess which had fistulized to the skin.” ECF No. 1 at 8. As a result, Plaintiff is alleged to have suffered “permanent injuries, substantial pain and suffering, and emotional distress.” ECF No. 1 at 8. Plaintiff asserts he had not incurred those physical or emotional injuries prior to surgery in 2018. ECF No. 1 at 8.
By assuming these facts as true and drawing all reasonable inferences from them in Plaintiff's favor, the Court finds that Plaintiff has stated a claim that is plausible on its face. Thus, the Court denies Defendants' motion as to Plaintiff's Design Defect Claim.
Plaintiff alleges that Defendants defectively manufactured the ProLite mesh. ECF No. 1 at 9. Defendants contend that Plaintiff's claim is insufficiently pled. ECF No. 15 at 6-7. A sufficient manufacturing defect claim requires Plaintiff to allege when the ProLite mesh left the control of Defendants, the ProLite mesh “deviated in some material way from the design specifications or performance standards of the [Defendants] or deviated in some material way from otherwise identical units of the same product line.” RCW § 7.72.030(2)(a). A successful manufacturing defect claim also requires Plaintiff to assert the alleged manufacturing defect is the proximate cause of Plaintiff's injuries. RCW § 7.72.030(1); Hernandez v. Johnson & Johnson, No. 4:20-CV-05136-SMJ, 2021 WL 320612, at *4 (E.D. Wash. Jan. 8, 2021); see WPI 110.02 Manufacturer's Duty-Design, 6 Wash. Prac., Wash. Pattern Jury Instr. ...
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