Shereen Koch v. I-flow Corp.., C.A. No. 09-441 S.

Decision Date07 June 2010
Docket NumberC.A. No. 09-441 S.
Citation715 F.Supp.2d 297
PartiesShereen KOCH, Plaintiff, v. I-FLOW CORP., Hospira, Inc., APP Pharmaceuticals, LLC, APP Pharmaceuticals, Inc., Abraxis Bioscience, LLC, Abraxis Bioscience, Inc., Astrazeneca Pharmaceuticals LP and Astrazeneca LP, Defendants.
CourtU.S. District Court — District of Rhode Island

OPINION TEXT STARTS HERE

Donald A. Migliori, Esq., Leah J. Donaldson, Esq., Vincent L. Greene, IV, Esq., Robert J. McConnell, Esq., Motley Rice LLC, Providence, RI, Michael D. Sharp, Esq., Douglas & London, P.C., New York, NY, for Plaintiffs.

Chad J. Layton, Esq., Segal McCambridge Singer & Mahoney, Ltd., Chicago, IL, Patricia A. Hartnett, Esq., Peter M. Durney, Esq., Cornell & Gollub, Valerie N. Kloecker, Esq., Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Boston, MA, for I-Flow Corporation.

Eric B. Mack, Esq., Heather A. Pierce, Esq., Stephen J. MacGillivray, Esq., Edwards Angell Palmer & Dodge, Providence, RI, for Hospira, Inc.

Christian B.W. Stephens, Esq., Stephen Adams, Esq., John J. Barton, Esq., Taylor Duane Barton & Gilman LLP, Providence, RI, Erin M. Bosman, Esq., James W. Huston, Esq., Jessica Ederer, Esq., Morrison & Foerster LLP, San Diego, CA, for APP Pharmaceuticals, LLC, APP Pharmaceuticals, Inc., Abraxis Bioscience, LLC, Abraxis Bioscience, Inc.

MEMORANDUM AND ORDER

WILLIAM E. SMITH, District Judge.

This matter is before the Court on Motions to Dismiss brought by Defendants, pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff has sued various pharmaceutical companies in a products liability action, in connection with a medical treatment she received following three arthroscopic shoulder surgeries in 2005 and 2006. The treatment consisted of the implantation of a pump designed to bathe Plaintiff's shoulder joint with a local anesthetic after surgery. According to Plaintiff, the treatment, which has not been approved by the federal Food and Drug Administration (“FDA”), resulted in serious permanent injury to her shoulder cartilage. Plaintiff asserts that, with the exception of total shoulder replacement surgery (whereby her shoulder joint would be replaced with a prosthesis), there is no effective treatment for her condition.

Plaintiff has sued the manufacturer of the pain-pump, I-Flow Corporation (I-Flow). I-Flow has not joined in the present motions. In addition, Plaintiff sued the manufacturers of bupivacaine, the generic name for the anesthetic administered through the pain-pump. Defendant Hospira, Inc. (Hospira) markets bupivacaine under the brand name “Marcaine.” APP Pharmaceuticals, Inc., APP Pharmaceuticals, LLC, Abraxis Bioscience, Inc., Abraxis Bioscience, LLC, (collectively APP) are related entities which market bupivacaine under the brand name “Sensorcaine.” 1 For purposes of this memorandum, references to Defendants will indicate both bupivacaine-manufacturing Defendants, whose Motions to Dismiss set forth essentially the same arguments and, so, can be considered together.

Plaintiff's Complaint sounds in eight counts, each count is brought against all Defendants, including I-Flow. The claims are as follows: I) negligence and negligence per se; II) strict products liability; III) breach of express warranty; IV) breach of implied warranties; V) fraudulent misrepresentation; VI) fraudulent concealment; VII) negligent misrepresentation; and VIII) fraud and deceit. Defendants move for the dismissal of the Complaint in its entirety, arguing that all claims fail to meet the minimum pleading requirements set forth in Fed.R.Civ.P. 8(a) and 9(b). After oral argument and review of the parties' submissions, the Court, for the reasons set forth below, denies Defendants' Motions in part and grants them in part. In addition, a Motion to Strike portions of the Complaint made by APP is denied.

I. Standard of Review

Defendants move to dismiss the claims against them 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. In considering a Rule 12(b)(6) motion, a court must accept as true all allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996). The United States Supreme Court, in abrogating Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), restated the standard as follows: “once 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, 563, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Since Twombly, the Supreme Court has further refined its requirements in Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009):

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. 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 defendant has acted unlawfully.

129 S.Ct. at 1949 (internal citations and quotations omitted).

II. AnalysisA. Counts I, II, III and IV

Plaintiff's Counts I through IV set forth state law claims for negligence and negligence per se, strict products liability, breach of express warranty and breach of implied warranties. In brief, Plaintiff alleges that Defendants disregarded numerous medical studies which established the connection between the continuous injection of bupivacaine and the destruction of shoulder cartilage, a condition known as chondrolysis. In addition, Defendants sought approval from the FDA for the post-surgical use of pain-pumps with bupivacaine, but were denied. Nevertheless, Defendants continued to market bupivacaine for this treatment, although they knew, or should have known, of its dangers. In their marketing, advertising and promotion of bupivacaine, Defendants, expressly and through implication, warranted to Plaintiff and/or her health care providers that bupivacaine was safe for use in pain-pumps.

While bupivacaine is marketed under the brand name “Marcaine” only by one manufacturer, Plaintiff asserts that “Marcaine” is frequently used generically by medical professionals for all brands of bupivacaine, in somewhat the same way the term “xerox” was, for many years, used to mean a photo-copy. This is significant because Plaintiff has not yet been able to conclusively identify the brand of bupivacaine that she received in her pain-pump. Plaintiff, through counsel, indicated during oral arguments on the present motions that she has promulgated interrogatories to Defendants that will enable her to identify which particular bupivacaine brand was used by her orthopedic surgeon. Because she cannot identify which Defendant manufactured the product that harmed her, Plaintiff has fashioned her Complaint so as to address each allegation to all three bupivacaine manufacturers collectively as DEFENDANT ANESTHETIC MANUFACTURERS, after having initially identified the individual Defendants APP and Hospira. This method of pleading is assailed by Defendants, who argue that Plaintiff's failure to identify the specific manufacturer that produced the bupivacaine with which she was treated is fatal to her claims.

1. Defendants' Arguments

Defendants argue that Plaintiff has failed to meet the minimum pleading requirements of Fed.R.Civ.P. 8(a)(2) because she has not identified the specific brand of medicine that harmed her. Rule 8(a)(2) requires that a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Defendants characterize Plaintiff's allegations as a “fishing expedition,” and assert that, by lumping the bupivacaine manufacturers together in each count, she has failed to establish the necessary specific causal link between their product and her injury. Plaintiff's method of pleading, Defendants argue, fails to meet the standard for facial plausibility established by the Supreme Court in Twombly, because the claims only establish the possibility that the manufacturer's drug harmed Plaintiff. Moreover, Defendants say, Plaintiff's pleadings fail to provide them with fair notice of the claims against them.

Defendants cite Rhode Island case law for the proposition that products liability claimants must identify the product that harmed them. See Clift v. Vose Hardware, Inc., 848 A.2d 1130 (R.I.2004); Gorman v. Abbott Labs., 599 A.2d 1364 (R.I.1991). Additionally, Defendants cite various unpublished decisions from federal courts across the country where their motions to dismiss have been granted in litigation involving the same or similar pain-pump therapy. See, e.g., Haskins v. Zimmer Holdings Inc., No. 09-236, slip op., 2010 WL 342552 (D.Vt. Jan. 29, 2010); Timmons v. Linvatec Corp., 263 F.R.D. 582 (C.D.Cal.2010); Sherman v. Stryker Corp., No. SACV09-224-JVS, slip op., 2009 WL 1471505 (C.D.Cal. March 9, 2009).

2. Twombly and Alternative Pleading

The Federal Rules of Civil Procedure provide for “notice” pleading, and represent a shift from the historical requirements of common law pleading and code practice, “when form reigned over substance, and a substantial claim could be lost for want of compliance with a technicality.” Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061, 1063 (1st Cir.1979). Fed.R.Civ.P. 8(d)(2)-(3) provides for alternative or hypothetical statements of a claim, “either in a single count or defense or in separate ones,” and permits a party to “state as many separate claims or defenses as it has, regardless of consistency.” Fed.R.Civ.P. 20(a)(2)(A) permits the joinder of parties as defendants as long as “any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction,...

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    • United States
    • U.S. District Court — District of Rhode Island
    • February 19, 2014
    ...its community hospital model in Rhode Island. But, Steward need not do so at the initial pleading stage. See Koch v. I–Flow Corp., 715 F.Supp.2d 297, 302 (D.R.I.2010). As such, it would be improper to dismiss the action on grounds that the alleged damages are too remote or speculative.iii. ......
  • Peña–Peña v. Figueroa–Sancha
    • United States
    • U.S. District Court — District of Puerto Rico
    • June 11, 2012
    ...and Procedure § 1654 (3d ed. 2011). The Supervisors' position is problematic for other reasons. The court in Koch v. I–Flow Corp., 715 F.Supp.2d 297, 302 n. 2 (D.R.I.2010) fitly stated one of them, in denying a motion to dismiss in which defendants advanced the same “and/or” argument: Plain......
  • Deutsche Bank Trust Co. Americas v. Doral Fin. Corp.
    • United States
    • U.S. District Court — District of Puerto Rico
    • January 26, 2012
    ...Iqbal and thus have nothing to do with the exigencies those cases imposed. The second problem was described fitly in Koch v. I–Flow Corp., 715 F.Supp.2d 297 (D.R.I.2010). There, in denying a motion to dismiss in which defendants challenged the sufficiency of the complaint on the same ground......
  • Williams v. Johnson & Johnson
    • United States
    • U.S. District Court — District of Rhode Island
    • January 18, 2022
    ...A.2d 1005, 1012 (R.I. 2007) ) (alteration in original). "Misrepresentation is often considered a type of fraud," Koch v. I-Flow, Corp. , 715 F. Supp. 2d 297, 304 (D.R.I. 2010) (citing Rodi , 389 F.3d at 15 ), and, where intentional conduct is alleged, it is subject to the Rule 9(b) requirem......
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1 books & journal articles
  • Iqbal 'Plausibility' in Pharmaceutical and Medical Device Litigation
    • United States
    • Louisiana Law Review No. 71-2, January 2011
    • January 1, 2011
    ...CIBA Vision Corp. v. De Spirito, No. 1:09-cv-01343-JOF, 2010 WL 553233, at *4 (N.D. Ga. Feb. 10, 2010); see also Koch v. I-Flow Corp., 715 F. Supp. 2d 297, 302 (D.R.I. 2010) (commenting that Iqbal does “not mark a radical change in federal pleading standards, but rather a fine tuning of sor......

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