Oden v. Bos. Scientific Corp.

• Citation: 330 F.Supp.3d 877
• Decision Date: 04 June 2018
• Docket Number: CV 18-0334 (SJF)(SIL)
• Parties: Furnie ODEN, Plaintiff, v. BOSTON SCIENTIFIC CORPORATION, Defendant.
• Court: U.S. District Court — Eastern District of New York

330 F.Supp.3d 877

Furnie ODEN, Plaintiff,

v.BOSTON SCIENTIFIC CORPORATION, Defendant.

CV 18-0334 (SJF)(SIL)

United States District Court, E.D. New York.

Signed June 4, 2018

Debra Humphrey, Kevin S. Wang, Marc J. Bern & Partners, LLP, New York, NY, for Plaintiff.

Angela R. Vicari, Arnold & Porter Kaye Scholer LLP, New York, NY, for Defendant.

MEMORANDUM AND ORDER

FEUERSTEIN, District Judge:

I. INTRODUCTION

Plaintiff, Furnie Oden ("Plaintiff"), brings the instant action seeking monetary damages against Defendant, Boston Scientific Corporation ("Defendant"), based upon claims of negligence, strict liability (based upon theories of defective design, defective manufacture and failure to warn), breach of express and implied warranties, fraudulent misrepresentation and concealment, negligent misrepresentation, violation of New York General Business Law ("GBL") Sections 349 and 350 and punitive damages. See generally Complaint ("Compl.") [DE 1]. Presently before the Court is Defendant’s motion to dismiss the Complaint in its entirety in accordance with Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted. See Notice of Motion [DE 6]. Plaintiff opposes the motion. For the reasons that follow, Defendant’s motion is GRANTED.

II. FACTUAL BACKGROUND

The following factual allegations have been taken from the Complaint. All facts alleged by the Plaintiff are assumed to be true for purposes of deciding the motion to dismiss and are construed in a light most favorable to the Plaintiff as the non-moving party. See, e.g., LaFaro v. N.Y. Cardiothoracic Grp. , 570 F.3d 471, 475 (2d Cir. 2009) ; Matthews v. City of N.Y. , 889 F.Supp.2d 418, 425 (E.D.N.Y. 2012).

On January 1, 2008, after being hospitalized for deep vein thrombosis

and pulmonary embolisms, Plaintiff underwent a surgical procedure involving the implantation of an Inferior Vena Cava ("IVC") filter.¹

Compl. ¶ 60. The IVC filter used was the "Greenfield Filter

system" which was "designed and manufactured by Defendant." Id. ¶ 61. The Greenfield Filter was "implanted in [ ] Plaintiff’s right common femoral vein at the L1-L2 level...." Id. ¶ 62. At some point following the Greenfield Filter’s implantation, Plaintiff "began to experience constant pains and irritation in the area where the IVC filter had been implanted." Id. ¶ 65. Plaintiff states that "[p]ains caused by an IVC filter are an indication for more serious problems associated [with] the filter, which can include migration, perforation, thrombosis, blockage or other life-threatening side effects." Id.

According to Plaintiff, "Defendant state[s] on different sources that [its] filters were ‘Trusted Performance, Timeless Design’ and emphasizes [its] filter’s design in protection against certain complications." Id. ¶ 67. However, Plaintiff asserts that "Defendant knew its IVC filters were defective in design and knew that the defect was attributable to the design’s failure" but that "Defendant failed to disclose to physicians, patients, or Plaintiff in detail that its permanent IVC filter, the Greenfield Filters

, were subject to breakage, collapse, migration, causing thrombus and/or the appropriate degree of risk of damage to the vena cava wall and other complications." Id. ¶¶ 68-69. In addition, Plaintiff claims that "Defendant concealed the known risks and failed to warn of known or scientifically knowable dangers and risks associated with the ... Greenfield Filter." Id. ¶ 71. Moreover, "Defendant failed to provide sufficient warnings and instructions that would have put Plaintiff ... on notice of the dangers and adverse effects caused by implantation of the Greenfield Filter." Id. ¶ 72. Specifically, Plaintiff states that Defendant’s "brochure and instructions for us[e], lacked any notable warnings or indication to the full extent of risks and hazards related to [the] Greenfield Filter." Id. ¶ 73.

According to Plaintiff, "the complications [he is experiencing] can be attributable to the Greenfield Filter

[and include] the increased risk of DVT despite the implanted device, constant pains in the abdominal region, the risk of the filter migrating to [ ] other parts of the vena cava, heart, lungs or other organs, DVT, fracture or breakage of the filter, perforation of the vena cava or other soft tissue...." Id. ¶ 75.

III. DEFENDANT’S MOTION TO DISMISS

A. Standard of Review

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court must liberally construe the claims, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Aegis Ins. Servs., Inc. v. 7 World Trade Co., L.P. , 737 F.3d 166, 176 (2d Cir. 2013) (quotations and citation omitted); Grullon v. City of New Haven , 720 F.3d 133, 139 (2d Cir. 2013). The plaintiff must satisfy "a flexible ‘plausibility standard.’ " Iqbal v. Hasty , 490 F.3d 143, 157 (2d Cir. 2007), rev'd on other grounds sub nom. Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 546, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Court, therefore, does not require "heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955 ; see Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC , 595 F.3d 86, 91 (2d Cir. 2010) (holding that a complaint must set forth "a plausible set of facts sufficient ‘to raise a right to relief above the speculative level.’ ") (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).

The Supreme Court clarified the appropriate pleading standard in Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), in which the court set forth a two-pronged approach to be utilized in analyzing a motion to dismiss. District courts are to first "identify [ ] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679, 129 S.Ct. 1937 ; see id. at 678, 129 S.Ct. 1937 ("A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ ") (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). Though "legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. Second, if a complaint contains "well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a [d]efendant has acted unlawfully." Id. at 678, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 556-57, 127 S.Ct. 1955 ) (internal citations omitted).

In adjudicating a Rule 12(b)(6) motion to dismiss, the Court must limit itself to facts alleged in the complaint, which are accepted as true; to documents attached to the complaint as exhibits or incorporated in the complaint by reference; to matters of which judicial notice may be taken; or to documents whose terms and effect are relied heavily upon in the complaint and, thus, are rendered "integral" to the complaint. Chambers v. Time Warner, Inc. , 282 F.3d 147, 152–53 (2d Cir. 2002) ; see also ASARCO LLC v. Goodwin , 756 F.3d 191, 198 (2d Cir. 2014).

B. Preliminary Issues

1. Consideration of Additional Materials

As an initial matter, Defendant has appended extrinsic documentation to its motion papers for the Court’s consideration. However, as the Court is only permitted to consider a narrow universe of documents outside of or otherwise attached to the Complaint, see ASARCO LLC , 756 F.3d at 198, it is necessary to determine whether these additional materials are properly considered in adjudicating the motion. Defendant has attached the following documents to the January 24, 2018 Declaration of Angela R. Vicari in Support of Boston Scientific’s Motion to Dismiss ("Vicari Decl."): (1) Greenfield Inferior Vena Cava Filter

, Titanium Model, Directions for Use, operative in 2008; (2) Greenfield Inferior Vena Cava Filter, Stainless Steel Model, Directions for Use, operative in 2008; (3) a May 6, 2014 Safety Communication issued by the Food and Drug Administration, titled "Removing Retrievable Inferior Vena Cava Filters : FDA Safety Communication;" (4) a decision and order issued in Douse v. Boston Scientific Corporation , No. 2:17-cv-599-FtM-38MRM, 2017 WL 9672522 (M.D. Fl. Dec. 18, 2017) ; (5) product brochure for the Greenfield Inferior Vena Cava Filter

; and (6) the webpage for the Greenfield Inferior Vena Cava Filter. Having reviewed the Complaint, attachments (1)-(3) and (5)-(6) are explicitly referenced. See, e.g. , Compl. ¶¶ 49-53, 126-128, 141-147, 177-183, 194-200. Therefore, these documents shall be considered in adjudication of the motion to the extent they are relevant and material. See See

McLennon v. City of New York , 171 F.Supp.3d 69, 88 (E.D.N.Y. 2016) ("To be incorporated by reference, the complaint must make a clear, definite and substantial reference to the documents.") (quoting Madu, Edozie & Madu, P.C. v. SocketWorks Ltd. Nigeria , 265 F.R.D. 106, 123 (S.D.N.Y. 2010) ); see also

McKevitt v. Mueller , 689 F.Supp.2d 661, 665 (S.D.N.Y. 2010) (recognizing that a court may consider "documents that the plaintiff relied on in bringing suit and that are either in plaintiff’s possession or that the plaintiff knew of when bringing suit"); Svensson v. Securian Life Ins. Co. , 706 F.Supp.2d 521, 525 (S.D.N.Y. 2010) (considering an insurance policy when the complaint "explicitly refer[ed] to, and relie[d] on the ...