Mattingly v. Medtronic, Inc.

• Decision Date: 12 September 2006
• Docket Number: No. 4:06CV789 HEA.,4:06CV789 HEA.
• Citation: 466 F.Supp.2d 1170
• Parties: Nancy MATTINGLY and Terry M. Mattingly, Plaintiffs, v. MEDTRONIC, INC., Defendant.
• Court: U.S. District Court — Eastern District of Missouri

Page 1170

466 F.Supp.2d 1170

Nancy MATTINGLY and Terry M. Mattingly, Plaintiffs, v. MEDTRONIC, INC., Defendant.

No. 4:06CV789 HEA.

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

September 12, 2006.

COPYRIGHT MATERIAL OMITTED

Lori Gail Cohen, Greenberg Traurig LLP, Atlanta, GA, Patrick Lysaught, Baker and Sterchi, Kansas City, MO, Robert Lawrence Purdy, Minneapolis, MN, for Medtronic, Inc., Defendant.

Dawn M. Mefford, Paul J. Passanante, Simon and Passanante, PC, St. Louis, MO, for Nancy Mattingly, Terry M. Mattingly, II, Plaintiffs.

OPINION, MEMORANDUM AND ORDER

AUTREY, District Judge.

This matter is before the Court on defendant's Motion to Dismiss Counts I, II, III, IV, VIII, IX, and X of Plaintiffs Complaint, [Doc. # 8]. Plaintiff opposes the motion. For the reasons set forth below, the Motion is denied in part and granted in part.

Facts and Background

Plaintiffs filed this wrongful death action under various theories of recovery seeking damages for an allegedly malfunctioning implantable cardiac defibrillator (ICD) which was implanted in Terry Mattingly, plaintiffs' decedent. Plaintiffs contend that the ICD which was implanted in decedent malfunctioned due to the failure/short-circuiting of the battery and/or high voltage capacitors of the ICD. As a result of this, plaintiffs allege Terry Mattingly died. Plaintiffs' Complaint consists of the following counts: Count I: Negligence; Count II: Strict Liability: Design and Manufacturing Defects; Count III: Negligence Per Se; Count IV: Strict Liability: Failure to Warn; Count V: Negligent Failure to Warn; Count VI: Breach of Implied Warranty; Count VII: Breach of Express Warranty; Count VIII: Misrepresentation by Omission; Count IX Violation of Consumer Protection Statutes; Count X Punitive Damages.

Defendant moves to dismiss Counts I, II, III, IV, VIII, IX, and X pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief may be granted.

Standard of Review

The purpose of a motion under Rule 12(b)(6) is to test the sufficiency of the complaint. A complaint "should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Gilmore v. County of Douglas, State of Neb., 406 F.3d 935, 937 (8th Cir.2005). When considering a motion to dismiss, courts are required to accept the complaint's factual allegations as true and to construe them in the light most favorable to the plaintiff. Krentz v. Robertson Fire Protection District, 228 F.3d 897, 905 (8th Cir.2000). All reasonable inferences from the complaint must be drawn in favor of the nonmoving party. Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 590 (8th Cir.2004). A complaint should not be dismissed "merely because the court doubts that a plaintiff will be able to prove all of the necessary factual allegations." Krentz, 228 F.3d at 905. Further, a complaint should not be dismissed unless "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Midwestern Machinery, Inc., 167 F.3d at 441 (8th Cir. 1999) (citing Springdale Education Association v. Springdale School Dist., 133 F.3d 649, 651 (8th Cir.1998)); McCormack v. Citibank, N.A., 979 F.2d 643, 646 (8th Cir.1992) (quoting Conley v. Gibson, 355 U.S. at 45-46, 78 S.Ct. 99).

Discussion

Defendant moves to dismiss Counts Four, Five and Eight as duplicitous of Counts Two and. Three. Upon examination, defendant is correct that the Counts it seeks to have dismissed include repetitive allegations, however, the Counts actually allege separate theories of recovery. Plaintiff is entitled to allege negligence and negligent failure to warn; strict liability and strict liability for failure to warn; and misrepresentation by omission. The mere fact that plaintiff has included in these counts an allegation of a failure to warn does not require dismissal. Any repetition in these counts should be and is, stricken.

The Merchandising Practices Act ("MPA") was created to supplement the definition of common law fraud. Clement v. St. Charles Nissan, Inc., 103 S.W.3d 898, 899 (Mo.App.2003) (citing State ex rel. Danforth v. Independence Dodge, Inc., 494 S.W.2d 362, 368 (Mo.App.1973)). It attempts to preserve fundamental honesty, fair play and right dealings in public transactions. Id. "The act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce ... in or from the state of Missouri is declared to be an unlawful practice." Mo. REV. STAT. § 407.020.1 (2000). There is no definitive definition of deceptive practices. Clement, 103 S.W.3d at 900 (citing State ex rel. Webster v. Areaco Inv. Co., 756 S.W.2d 633, 635 (Mo. App.1988)). The MPA is broad in scope in order to prevent evasion by overly meticulous definitions; the determination of whether fair dealing has been violated turns on the unique facts and circumstances of each case. Id. To establish "unlawful practice" it is not necessary to prove the elements of common law fraud. Id. It is the actor's conduct, rather than his intent, that determines a violation of the MPA. Webster v. Eisenbeis, 775 S.W.2d 276, 278 (Mo.App.1989).

In this case, plaintiff has plead that defendant's actions and omissions, including the false and misleading representations and omissions of material facts regarding the safety and potential risks of the ICD constitute acts, uses or employment by defendant. Plaintiffs further allege that the medical community, including decedent's physicians, relied on defendant's misrepresentations and omissions.

The Court finds that plaintiffs have adequately plead violations of the. MPA. Plaintiffs allege the circumstances surrounding defendant's failure to disclose the ICD's propensity to fail. Actual communication is not necessary to state a claim for unfair practices under the MPA. Plaintiffs' allegations are sufficient under Rule 12(b)(6) to state a cause of action. As previously noted, a motion to dismiss tests the sufficiency of the complaint, not whether plaintiff will ultimately prove and/or prevail on the claim. At this stage of this litigation, the allegations of the Complaint are sufficient to withstand defendant's challenge.

Defendant also contends that Counts Eight and Nine are not pled with sufficient particularity as required by Rule 9(b) of the Federal Rules of Civil Procedure. Here, the Court agrees. Rule 9(b) of the Federal Rules of Civil. Procedure requires that "the circumstances constituting fraud ... be stated with particularity." Fed.R.Civ. P. 9(b). " To satisfy the particularity requirement of Rule 9(b), the complaint must plead such facts as the time, place, and content of the defendant's false representations, as well as the details of the defendant's fraudulent acts, including when the acts occurred, who engaged in them, and what was obtained as a result. See, e.g., Corsello, 428 F.3d at 1012; Schaller Tel. Co. v. Golden Sky Sys., Inc., 298 F.3d 736, 746 (8th Cir.2002). Put another way, the complaint must identify the `who, what, where, when, and how' of the alleged fraud. Costner, 317 F.3d at 888 (citing Parries v. Gateway 2000, Inc., 122 F.3d 539, 550 (8th Cir.1997))." U.S. ex rel. Joshi v. St. Luke's Hosp., Inc., 441 F.3d 552, 556 (8th Cir.2006).

Plaintiffs' Complaint contains only general allegations of misrepresentation and omission. Nowhere in either of these counts does plaintiff specifically detail who made the representations or failed to do so; when any representations were made; or to whom the representations were made or should-have been made. While the allegations are sufficient under standards set forth under Rule 8, they clearly fail to set forth the time, place and content of the allegedly false statements or statements that should have been made but were not. As such, plaintiffs Counts Eight and Nine are insufficient and the motion is well taken.

Defendant seeks to dismiss Count Ten because it contends that plaintiffs cannot establish sufficient reprehensibility to merit an award of punitive damages. Punitive damages are imposed for the purpose of punishment and deterrence. Barnett v. La Societe Anonyme Turbomeca, 963 S.W.2d 639, 659 (Mo.App.1997); Letz v. Turbomeca Engine Corp., 975 S.W.2d 155, 177 (Mo.App.1997).

In a negligence case,...