Douse v. Bos. Scientific Corp.

• Citation: 314 F.Supp.3d 1251
• Decision Date: 14 May 2018
• Docket Number: Case No: 2:17–cv–599–FtM–38MRM
• Parties: Valerie DOUSE, Plaintiff, v. BOSTON SCIENTIFIC CORPORATION, Defendant.
• Court: U.S. District Court — Middle District of Florida

314 F.Supp.3d 1251

Valerie DOUSE, Plaintiff,
v.
BOSTON SCIENTIFIC CORPORATION, Defendant.

Case No: 2:17–cv–599–FtM–38MRM

United States District Court, M.D. Florida, Fort Myers Division.

Signed May 14, 2018

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Carmen A. DeGisi, Marc J. Bern & Partners LLP, Conshohocken, PA, for Plaintiff.

Angela R. Vicari, Arnold & Porter Kaye Scholer LLP, New York, NY, Manuel Kushner, Kaye Scholer, LLP, West Palm Beach, FL, for Defendant.

OPINION AND ORDER ¹

SHERI POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE

This matter comes before the Court on Defendant Boston Scientific Corporation's ("Boston Scientific") Motion to Dismiss (Doc. 29) and Plaintiff Valerie Douse's ("Douse") Response in Opposition (Doc. 31). The matter is ripe for review.

INTRODUCTION

This is a product liability suit centering on Boston Scientific's permanent inferior vena cava filter (the "Greenfield Filter"). The Greenfield Filter was created to prevent pulmonary embolisms (Doc. 27 at ¶¶ 1, 31), which occur when a blood clot travels through blood vessels like the inferior vena cava to block one of the pulmonary arteries in the lungs. (Doc. 27 at ¶ 18). When clots form in deep leg veins, this condition is called deep vein thrombosis. (Doc. 27 at ¶ 18). Patients at risk of pulmonary embolisms or deep vein thrombosis are often treated with permanent or retrievable inferior vena cava filters, such as the Greenfield Filter, which trap and filter blood clots. (Doc. 27 at ¶¶ 20–21, 30).

Douse alleges that concerns about complications associated with permanent inferior vena cava filters led medical device manufacturers to begin making retrievable

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filters by 2003. (Doc. 27 at ¶ 36). In 2010, the United States Food and Drug Administration warned against implanting inferior vena cava filters for extended periods due to potential adverse health complications. (Doc. 27 at ¶¶ 34, 36). It released another warning in 2014. (Doc. 27 at ¶ 36). Despite these notifications, Douse alleges Boston Scientific continued to market the Greenfield Filter for long-term use. (Doc. 27 at ¶ 40).

BACKGROUND

In September 2003, Douse suffered a pulmonary embolism. (Doc. 27 at 22). Based on the advice of an unnamed entity, she agreed to have the Greenfield Filter implanted to prevent further blood clot-related issues. (Doc. 27 at ¶¶ 22–24). In 2017, Douse was treated for complications associated with the Greenfield Filter, and was informed that it had perforated the walls of the vein in which it had been implanted. (Doc. 27 at ¶ 26). Apparently, such injuries are commonplace among patients who have undergone the implantation of permanent inferior vena cava filters. (Doc. 27 at ¶ 27).

Douse then sued Boston Scientific in state court. (Doc. 2). After the Complaint was removed (Doc. 1), it was dismissed as a shotgun pleading. (Doc. 25). Douse then filed an Amended Complaint, which deleted paragraphs that had previously incorporated every preceding allegation into each succeeding count. (Doc. 27). The Amended Complaint alleges the Greenfield Filter was defectively designed and manufactured. (Doc. 27 at ¶ 53). It further claims the Greenfield Filter was inadequately tested and had inadequate warnings, instructions, and labeling. (Doc. 27 at ¶ 53). Based on these allegations, Douse claims Boston Scientific is liable for: negligence (Count I), strict liability defective design (Count II), strict liability manufacturing defect (Count III), strict liability failure to warn (Count IV), breach of express warranty (Count V), breach of implied warranty of merchantability (Count VI), breach of implied warranty of fitness (Count VII), fraudulent misrepresentation (Count VIII), fraudulent concealment (Count IX), negligent misrepresentation (Count X), and violations of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA") (Count XI). (Doc. 27 at ¶¶ 67–234). Douse also seeks punitive damages. (Doc. 27 at ¶¶ 235–237). Now, Boston Scientific moves to dismiss. (Doc. 29).

LEGAL STANDARD

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a short and plain statement of a claim showing the pleader is entitled to relief. The Rule's purpose is to "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal punctuation omitted).

Fraud allegations are subject to heightened pleading standards under Federal Rule of Civil Procedure 9(b), which requires a party to "state with particularity the circumstances constituting fraud." This means "a plaintiff must plead facts as to time, place, and substance of the defendant's alleged fraud, specifically the details of the defendant's allegedly fraudulent acts, when they occurred, and who engaged in them." U.S. ex rel. Atkins v. McInteer , 470 F.3d 1350, 1357 (11th Cir. 2006) (internal quotations omitted). Stated differently, "[t]his means who, what, when, where, and how: the first paragraph of any newspaper story." Garfield v. NDC Health Corp. , 466 F.3d 1255, 1262 (11th Cir. 2006). Nevertheless, "[m]alice, intent, knowledge, and other conditions of a person's mind may be alleged generally." Brooks v. Blue Cross & Blue Shield of Fla., Inc. , 116 F.3d 1364, 1371 (11th Cir. 1997). These standards

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serve "an important purpose in fraud actions by alerting defendants to the precise misconduct with which they are charged and protecting defendants against spurious charges of immoral and fraudulent behavior." Id. at 1370–71 (internal quotations omitted).

Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a pleading for failure to state a claim upon which relief can be granted. This decision hinges on the Twombly – Iqbal plausibility standard, which requires a plaintiff to allege sufficient facts "to raise a reasonable expectation that discovery will reveal evidence" to support a claim. Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ; see also Randall v. Scott , 610 F.3d 701, 708 n.2 (11th Cir. 2010). At this stage, the Court must accept all factual allegations in a complaint as true and take them in the light most favorable to the plaintiff. Pielage v. McConnell , 516 F.3d 1282, 1284 (11th Cir. 2008). But acceptance is limited to well-pleaded factual allegations. La Grasta v. First Union Sec., Inc. , 358 F.3d 840, 845 (11th Cir. 2004). A "the-defendant-unlawfully harmed me accusation" is insufficient. Ashcroft v. Iqbal , 556 U.S. 662, 677, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Id. (internal quotations omitted).

DISCUSSION

Boston Scientific's Motion to Dismiss is multifaceted. It argues the Amended Complaint: (1) is an impermissible shotgun pleading; (2) is improvidently or insufficiently pled; and (3) fails to adequately allege punitive damages. Douse opposes. The Court will address each argument in turn.

A. Shotgun Pleading

Boston Scientific argues the Amended Complaint should be dismissed as a shotgun pleading because the grounds for each claim cannot be discerned. This argument fails. The Eleventh Circuit has found only four types of shotgun pleadings:

The most common type—by a long shot—is a complaint containing multiple counts where each count adopts the allegations of all preceding counts, causing each successive count to carry all that came before and the last count to be a combination of the entire complaint. The next most common type, at least as far as our published opinions on the subject reflect, is a complaint that does not commit the mortal sin of re-alleging all preceding counts but is guilty of the venial sin of being replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action. The third type of shotgun pleading is one that commits the sin of not separating into a different count each cause of action or claim for relief. Fourth, and finally, there is the relatively rare sin of asserting multiple claims against multiple defendants without specifying which of the defendants are responsible for which acts or omissions, or which of the defendants the claim is brought against. The unifying characteristic of all types of shotgun pleadings is that they fail to one degree or another, and in one way or another, to give the defendants adequate notice of the claims against them and the grounds upon which each claim rests."

Weiland v. Palm Beach Cty. Sheriff's Office , 792 F.3d 1313, 1321–23 (11th Cir. 2015).

Here, the Amended Complaint differs from the original because it no longer incorporates each preceding allegation into each count. Still, Boston Scientific argues

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that it remains a shotgun pleading because the grounds for each claim are difficult to understand. To the extent this argument is based on the second of the Eleventh Circuit's enumerated shotgun pleading types—where a pleading is rife with conclusory, vague, and immaterial facts not...