Gillan v. Wright Med. Tech. Inc.

• Decision Date: 12 June 2019
• Docket Number: Case No. 4:18 CV 2012 CDP
• Parties: Leonard L. GILLAN, Plaintiff, v. WRIGHT MEDICAL TECHNOLOGY INC. et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

396 F.Supp.3d 844

Leonard L. GILLAN, Plaintiff,

v.WRIGHT MEDICAL TECHNOLOGY INC. et al., Defendants.

Case No. 4:18 CV 2012 CDP

United States District Court, E.D. Missouri, Eastern Division.

Signed June 12, 2019

George E. McLaughlin, Warshauer-McLaughlin Law Group PC, Denver, CO, James G. Krispin, Saint Louis, MO, for Plaintiff.

Dana J. Ash, Duane Morris, LLP, Anne A. Gruner, Duane Morris, LLP, Philadelphia, PA, David P. Niemeier, Kevin F. Hormuth, Greensfelder and Hemker, PC, St. Louis, MO, Sean K. Burke, Duane Morris, LLP, Washington, DC, Philadelphia, for Defendants.

MEMORANDUM AND ORDER

CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE

Plaintiff, Leonard Gillan, brings this products liability lawsuit against Wright Medical Technology and Barnes-Jewish West County Hospital. Plaintiff alleges that Wright Medical Technology designed, manufactured, and sold a defective hip product, and that this product was implanted in him during his hip replacement surgery at Barnes-Jewish West County Hospital in 2013. Plaintiff brings four claims against both Wright Medical Technology and Barnes-Jewish West County Hospital: Count 1 (negligence), Count 2 (strict product liability), Count 3 (breach of warranty), and Count 4 (negligent misrepresentation). Wright Medical Technology moves to dismiss Count 2 to the extent that plaintiff claims a manufacturing defect, Count 3 as to breach of express warranty only, and Count 4. Further, Wright Medical Technology moves to strike plaintiff's demand for damages for prejudgment interest. In a separate motion, Barnes-Jewish West County Hospital moves to dismiss all claims against it with prejudice.

I conclude that plaintiff has stated a viable cause of action for manufacturing defect products liability against Wright Medical Technology in Count 2, so I will deny the motion to dismiss that claim. I will grant the motion and dismiss the part of Count 3 that alleges breach of express warranty, and will dismiss Count 4 entirely. I will grant Wright Medical Technology's motion to strike plaintiff's claim for prejudgment interest, as plaintiff concedes this point. I further conclude that Barnes-Jewish West County Hospital must be dismissed with prejudice from this case because Missouri law precludes plaintiff from bringing any claims other than negligence against this healthcare care provider, and because the complaint fails to allege the elements of negligence as to this defendant.

Background

Plaintiff, Leonard Gillan, underwent a total right hip arthroplasty

on February 6, 2013 and he alleges that Wright Medical Technology provided the hip replacement. ECF 5 at ¶ 189-190. The complaint states that Dr. Paul S. Lux, M.D., performed the surgery at the Barnes-Jewish West County Hospital (BJWCH). Id. at ¶ 190. Plaintiff alleges that three years later he suffered a fracture of his replacement hip; the specific component to fracture was the Profemur Plus CoCR Modular Neck PHAC-1254, which was designed, manufactured, and sold by Wright Medical Technology. Id. at ¶ 202, 219-221, and ¶ 229. Plaintiff alleges that this model was recalled in 2015 because there was "reasonable probability" that use of the product would result in serious health consequences. Id. at ¶ 170-175. According to the complaint, Wright Medical Technology was aware of other instances of the modular necks' fracturing and it failed to acknowledge or inform surgeons of the risks associated with the Profemur Plus CoCR Modular Neck PHAC-1254. Id. at ¶ 71-81. Plaintiff alleges that the product failed to perform as intended, was defectively designed, was negligently manufactured, and resulted in fracture of the component, thereby requiring a second hip replacement procedure. Id. at ¶ 120-147.

Further, Plaintiff alleges that before his hip replacement surgery in 2013, Wright Medical Technology sold prosthetic hips, including the defective product at issue, to BJWCH. Id. at ¶ 198. He further claims that BJWCH profited off the sale of the hip devices. Id. at ¶ 200-201. In great detail, plaintiff describes how Wright Medical Technology marketed prosthetic hips to surgeons and hospitals. Generally, he alleges that Wright Medical Technology guaranteed that the replacement hip would last up to twenty years and would allow patients to return to a myriad of lifestyle activities. Id. at ¶ 37-44. According to the complaint, Wright Medical Technology advertised that the Profemur Plus CoCR Modular Neck PHAC-1254 would result in less corrosion and fracturing when compared to previous models. Id. at ¶ 101-112. However, plaintiff does not state which marketing materials or statements regarding the assurances of the Profemur Plus CoCR Modular Neck PHAC-1254 were made to him, to BJWCH, or to Dr. Lux.

Discussion

Rule 8(a)(2), Fed. R. Civ. P., provides that a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." In Bell Atlantic Corp. v. Twombly , the Supreme Court clarified that Rule 8(a)(2) requires complaints to contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; accord Ashcroft v. Iqbal , 556 U.S. 662, 678–79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Specifically, to survive a motion to dismiss, a complaint must contain enough factual allegations, accepted as true, to state a claim for relief "that is plausible on its face." Twombly , 550 U.S. at 570, 127 S.Ct. 1955.

The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint. When considering a 12(b)(6) motion, the court assumes the factual allegations of a complaint are true and construes them in favor of the plaintiff. Neitzke v. Williams , 490 U.S. 319, 326–27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). I am not, however, required to accept the legal conclusions the plaintiff draws from the facts alleged. Id. at 555, 127 S.Ct. 1955 ; Retro Television Network, Inc. v. Luken Commc'ns, LLC , 696 F.3d 766, 768-69 (8th Cir. 2012). Drawing on my "judicial experience and common sense," I must consider the plausibility of each claim as a whole, not the plausibility of each individual allegation. Zoltek Corp. v. Structural Polymer Grp. , 592 F.3d 893, 896 n. 4 (8th Cir. 2010).

Claims Against Wright Medical Technology

Wright Medical Technology does not seek to dismiss the negligence claim or the strict liability claim of defective design or failure to warn; however, it does seek dismissal of the strict liability claim based on manufacturing defects. It also challenges the breach of express warranty and negligent misrepresentation claims. It argues that the manufacturing defect claim cannot proceed because the complaint does not provide specific factual allegations regarding how the manufacturing defect occurred in the Profemur Plus CoCR Modular Neck PHAC-1254. Next, Wright Medical Technology argues that plaintiff has failed to plead all of the essential elements for a claim of breach of express warranty because plaintiff failed to provide required pre-suit notice to the seller and there is no showing that the statements were a material factor in the purchase of the product. Finally, Wright Medical Technology argues that the claim for negligent misrepresentation fails because plaintiff did not plead which specific statements constitute the alleged misrepresentations and how plaintiff justifiably relied on these misrepresentations.

I conclude that the manufacturing defect products liability claim is sufficiently pled so I will deny Wright Medical Technology's requested relief with respect to this claim. I agree, however, that the claims for breach of express warranty and negligent misrepresentation fail to state a claim. I will deny plaintiff's alternative request to amend the pleadings because amendment would not cure the defects.

Count 2 – Strict Products Liability

Under Missouri's products liability law, § 537.760, Mo. Rev. Stat., a strict products liability claim arises when a plaintiff demonstrates that the product was defective and dangerous when "put to a reasonable use anticipated by the manufacturer and that the plaintiff sustained damage as a direct result of the defect." Sappington v. Skyjack, Inc. , 512 F.3d 440, 446 (8th Cir. 2008). Plaintiff here alleges claims of design defect, manufacturing defect and failure to warn. Defendant's motion to dismiss challenges only the manufacturing defect claim. A manufacturing defect occurs when something goes wrong in the manufacturing process and the product deviates from its intended condition. Smith v. Brown & Williamson Tobacco Corp. , 275 S.W.3d 748, 791 (Mo. Ct. App. 2008). In a manufacturing defect case, the product is evaluated against the manufacturer's own standards and compared to similar products. Richcreek v. Gen. Motors Corp. , 908 S.W.2d 772, 776 (Mo. Ct. App. 1995). The Court in Richcreek noted that there can be "a very fine line between design and manufacturing defects." Id. at 777. "What becomes evident is that sometimes subtle factual differences, when applied to a failure of a particular product, can appear as both a manufacturing and design defect." Id. at 776.

Defendant argues that plaintiff has failed to point to any specific flaw in the manufacturing process. But plaintiff alleges that the device differed from defendant's intended condition because it failed. At this early stage of the litigation, this is sufficient for the manufacturing defect claim to proceed. See Sumpter v. Allergan Inc. , No. 4:17-CV-2289 RLW, 2018 WL 4335519, at *2 (E.D. Mo. Sept. 11, 2018) (holding that plaintiffs adequately pled a manufacturing defect claim when the allegations demonstrated that the product at issue deviated from the manufacturer's intended result); see also Pitman v. Ameristep Corp. , 208 F. Supp. 3d 1053, 1061 (E.D. Mo. 2016) (expert testimony that strap failed because it did not perform to defendant's listed capabilities is sufficient to...