Rapier v. Coloplast Corp.

• Decision Date: 17 March 2022
• Docket Number: Civil Action 3:20-CV-00405-GNS-RSE
• Court: U.S. District Court — Western District of Kentucky
• Parties: HELEN RAPIER PLAINTIFF v. COLOPLAST CORP., et al. DEFENDANTS

HELEN RAPIER PLAINTIFF v. COLOPLAST CORP., et al. DEFENDANTS

Civil Action No. 3:20-CV-00405-GNS-RSE

United States District Court, W.D. Kentucky, Louisville Division

March 17, 2022

MEMORANDUM OPINION AND ORDER

Greg N. Stivers, United States District Court Chief Judge

This matter is before the Court on Defendants Ethicon, Inc. and Johnson & Johnson's Partial Motion to Dismiss (DN 4) Defendants Coloplast Corp's Motion for Judgment on the Pleadings (DN 13), and Coloplast Manufacturing US, LLC's Motion to Dismiss (DN 14). For the reasons below, the motions are GRANTED IN PART and DENIED IN PART.

I. SUMMARY OF THE FACTS

On April 11, 2017, Plaintiff Helen Rapier (“Plaintiff”) was admitted to Baptist Health Hospital in Louisville, Kentucky, for a bilateral oophorectomy, laparoscopic sacrocolpopexy, transvaginal tape placement, and posterior repair. (Compl. ¶ 19, DN 1-1). During these procedures, Plaintiff was implanted with a Restorelle Y pelvic mesh device, manufactured by Defendant Coloplast Corp. (“Coloplast”), and a TVT Exact pelvic mesh device, manufactured by Defendant Ethicon, Inc. (“Ethicon”). (Compl. ¶ 19).

These implants allegedly caused “serious, painful, and permanent injuries” resulting in “necessary medical and related expenses and . . . [future] expenses for medical and related expenses . . . .” (Compl. ¶ 22). Plaintiff claims “she suffered great pain suffering and mental anguish; and will suffer future pain, suffering, and mental anguish . . . .” (Compl. ¶ 22). Plaintiff asserts that she underwent further surgery to remove the Restorelle Y and TVT Exact in August 2018, December 2018, and December 2019. (Compl. ¶ 15).

Plaintiff commenced the present action in Jefferson (Kentucky) Circuit Court in May 2020, alleging 17 causes of action: negligence (Count I); strict liability for a manufacturing defect (Count II); strict liability failure to warn (Count III); strict liability for a defective product (Count IV); strict liability for a design defect (Count V); common law fraud (Count VI); fraudulent concealment (Count VII); constructive fraud (Count VIII); negligent misrepresentation (Count IX); negligent infliction of emotional distress (Count X); breach of express warranty (Count XI); breach of implied warranty (Count XII); violation of the Kentucky Consumer Protection Act (“KCPA”) (Count XIII); gross negligence (Count XIV); unjust enrichment (Count XV); punitive damages (Count XVI); and “Discovery Rule and Tolling” (Count XVII). (Compl. ¶¶ 18-170). Plaintiff named five defendants: Coloplast; Mentor Worldwide LLC; Coloplast Manufacturing US, LLC (“Coloplast Mfg.”); Ethicon; and Johnson & Johnson (Compl. 1-2).

Coloplast filed a Notice of Removal, to which all defendants consented pursuant to 28 U.S.C. § 1446. (Consent Removal, DN 1-2 to 1-5). Ethicon and Johnson & Johnson moved to dismiss for failure to state a claim. (DN 4). Coloplast then moved for judgment on the pleadings (DN 13) and Coloplast Mfg. moved to dismiss (DN 14), both adopting the arguments made in support of DN 4.^[1] These motions are ripe for decision.

II. JURISDICTION

The Court has subject matter jurisdiction in this case pursuant to 28 U.S.C. § 1332, as the parties are in complete diversity of citizenship and the amount in controversy exceeds $75, 000.

III. STANDARD OF REVIEW

Causes of action are subject to dismissal if they “fail[] to state a claim upon which relief can be granted . . . .” Fed.R.Civ.P. 12(b)(6). When considering a motion to dismiss under Rule 12(b)(6), the Court must construe the complaint in a light most favorable to the nonmoving party, accepting “as true all factual allegations and permissible inferences therein.” Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir. 1994) (citing Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976)). The nonmoving party, however, must plead more than bare legal conclusions. See Lillard v. Shelby Cnty. Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996).

In order to survive a 12(b)(6) motion, “[the] complaint must contain (1) ‘enough facts to state a claim to relief that is plausible,' (2) more than ‘a formulaic recitation of a cause of action's elements,' and (3) allegations that suggest a ‘right to relief above a speculative level.'” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The pleading need not contain detailed factual allegations, but the nonmoving party must allege facts that, when “accepted as true . . . ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (citation omitted). “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.” Id. at 678 (citing Twombly, 550 U.S. at 556). “A complaint will be dismissed pursuant to Rule 12(b)(6) if no law supports the claims made, if the facts alleged are insufficient to state a claim, or if the face of the complaint presents an insurmountable bar to relief.” Southfield Educ. Ass'n v. Southfield Bd. of Educ., 570 Fed.Appx. 485, 487 (6th Cir. 2014) (citing Twombly, 550 U.S. at 561-64).

As for motions for judgment on the pleadings, “[i]n general, Rule 12(c) motions are analyzed under the same standard as Rule 12(b)(6) motions to dismiss for failure to state a claim.” Duncan v. Jefferson Cnty. Bd. of Educ., No. 3:19-CV-000495-GNS-RSE, 2021 U.S. Dist. LEXIS 54566, at *4 (W.D. Ky. Mar. 23, 2021) (citing Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010)). Thus, for a complaint to survive a Rule 12(c) motion, it must establish “enough facts to state a claim for relief that is plausible on its face.” Matthews v. Transp. Div., Inc., No. 3:16-CV-00340-GNS, 2017 U.S. Dist. LEXIS 22143, at *3-4 (W.D. Ky. Mar. 10, 2017) (quoting Twombly, 550 U.S. at 570). “For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment.” Duncan, 2021 U.S. Dist. LEXIS 54566, at *4 (quoting JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 582 (6th Cir. 2007)).

IV. DISCUSSION

Ethicon, Johnson & Johnson, Coloplast, and Coloplast Mfg. (“Defendants”) contend that Plaintiff fails to plead sufficient facts to state a plausible claim for several causes of action. (Defs.' Mem. Supp. Partial Mot. Dismiss 4-17, DN 4-1 [hereinafter Defs.' Mem.]).^[2]Notwithstanding prior agreed dismissal of some claims included in Defendants' motion to dismiss, Defendants assert that four additional claims in the Complaint should be dismissed: the claim for negligent infliction of emotional distress (Count X); the KCPA claim (Count XIII); the claim for punitive damages (Count XVI); and the claim for “Discovery Rule & Tolling” (Count XVII). (Defs.' Mem. 10-11, 15-17).

A. Negligent Infliction of Emotional Distress (Count X)

First, Defendants seek dismissal of Plaintiff's claim for negligent infliction of emotional distress (“NIED”) (Count X). “To prove negligent infliction of emotional distress, a plaintiff must first prove the elements of a standard negligence claim, meaning 1) duty 2) breach 3) causation and 4) damages, and then . . . must demonstrate 5) severe emotional injury.” Savidge v. Pharm-Save, Inc., No. 3:17-CV-00186-TBR, 2017 U.S. Dist. LEXIS 197635, at *32-33 (W.D. Ky. Dec. 1, 2017) (citing Osborne v. Keeney, 399 S.W.3d 1, 17-18 (Ky. 2012)). “[A] mere formulaic recitation of an element of a cause of action is insufficient to state a claim without accompanying factual allegations.” Id. at *32 (citing Alioto v. Advantage Assocs., No. 10-14-C, 2011 U.S. Dist. LEXIS 107881, at *9 (W.D. Ky. Sept. 22, 2011)); see also Iqbal, 556 U.S. at 678 (“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)).

The Complaint alleges that “Plaintiff has sustained and will continue to sustain emotional distress . . . as a direct result of the decision to purchase the Restorelle Y and TVT Exact products . . . .” (Compl. ¶ 95). Plaintiff repeats in the following paragraph her claim that she “suffered great pain, suffering and mental anguish; and will suffer future pain, suffering, and mental anguish .” (Compl. ¶ 96). This, however, is the extent of Plaintiff's allegations describing her “severe emotional injury”; no further factual elaboration is provided. On its face, these allegations are insufficient to “raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555; see also Savidge, 2017 U.S. Dist. LEXIS 197635, at *33 (“Specifically, claiming only that Defendants ‘cause[d] severe emotional distress' to Plaintiffs is insufficient.” (alteration in original)); Archey v. AT&T Mobility, LLC, No. 17-91-DLB-CJS, 2017 WL 6614106, at *3 (E.D. Ky. Dec. 26, 2017) (“Plaintiff has failed allege facts to show that she has suffered distress that ‘significantly affects' her everyday life or distress that requires ‘significant treatment.'” (citing Osborne, 399 S.W.3d at 17)); Petrey v. Ethicon, Inc., No. 5:19-298-DCR, 2019 U.S. Dist. LEXIS 180314, at *4 (E.D. Ky. Oct. 18, 2019) (“Petrey does not attempt to bolster her claim and, instead, simply repeats the allegation that she has suffered ‘physical injury and emotional distress, disability, impairment, and loss of enjoyment of life' as a result of the defendants' actions. Put simply, the claim does not include enough factual support to suggest that Petrey suffered severe emotional injury, as required for a claim of negligent infliction of emotional distress.”...