Simien v. C. R. Bard, Inc.

• Court: U.S. District Court — Eastern District of Texas
• Writing for the Court: MARCIA A. CRONE UNITED STATES DISTRICT JUDGE
• Decision Date: 20 August 2020
• Docket Number: CIVIL ACTION NO. 1:20-CV-131
• Citation: Simien v. C. R. Bard, Inc., CIVIL ACTION NO. 1:20-CV-131 (E.D. Tex. Aug 20, 2020)
• Parties: DANI SIMIEN, Plaintiff, v. C. R. BARD, INC. and BARD PERIPHERAL VASCULAR, INC., Defendants.

DANI SIMIEN, Plaintiff, v. C. R. BARD, INC. and BARD PERIPHERAL VASCULAR, INC., Defendants.

CIVIL ACTION NO. 1:20-CV-131

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS

August 20, 2020

MEMORANDUM AND ORDER

Pending before the court is Defendants C. R. Bard, Inc. and Bard Peripheral Vascular, Inc.'s (collectively, "Bard") Motion to Dismiss and, Alternatively, Motion to Strike and for More Definite Statement (#15). Plaintiff Dani Simien ("Simien") responded. Having considered the motion, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that the motion should be granted in part.

I. Background

Bard manufactures and markets medical equipment, specializing specifically in vascular and surgical products. One type of product that Bard manufactures is known as an inferior vena cava ("IVC") filter. IVC filters are small metal devices that are implanted in the upper portion of the IVC—a large vein that transports de-oxygenated blood from the lower body back to the heart. These IVC filters are designed to stop blood clots from traveling to the heart and lungs. When a blood clot reaches the heart or lungs, it is deemed to be a pulmonary embolism, which can cause serious injury or death.

Originally, IVC filters were designed to be permanent once implanted; however, in 2003, the Food and Drug Administration ("FDA") granted Bard clearance to market an IVC filter that was retrievable using Bard's Recovery Cone Removal System. Bard has since designed and marketed several variations of this retrievable IVC filter, including the G2 filter¹—the subject of this litigation—which was introduced in 2005. IVC filters are umbrella-shaped devices that use hooks to attach to the IVC wall and then catch or break-up blood clots using shorter, curved arms.

This case was part of a Multi-District Litigation proceeding, In re: Bard IVC Filter Litigation, 2:15-md-02641-DGC, that is pending before Senior District Judge David Campbell of the District of Arizona (the "MDL"), and comes before this court after being transferred from the United States District Court of Arizona pursuant to 28 U.S.C. § 1404(a). On May 28, 2019, Simien joined the ongoing MDL action against Bard in the District of Arizona as one of more than 3,000 plaintiffs seeking damages for personal injuries. Simien's case was remanded to this court on March 31, 2020.

On May 12, 2020, the court held a teleconference with counsel for the parties and directed Simien to file an amended complaint that laid out the facts and claims specific to his lawsuit. On May 18, 2020, Simien filed an Amended Complaint, which alleges that on May 1, 2007, he was implanted with a defective and unreasonably dangerous G2 filter manufactured by Bard and that the filter perforated his caval wall and caused him to sustain personal injuries as a direct and proximate result of the filter's alleged defects. Simien brings claims for: Strict Products Liability - Manufacturing Defect (Count I); Strict Products Liability - Information Defect (CountII); Strict Products Liability - Design Defect (Count III); Negligence - Design (Count IV); Negligence - Manufacture (Count V); Negligence - Failure to Recall/Retrofit (Count VI); Negligence - Failure to Warn (Count VII); Negligent Misrepresentation (Count VIII); Negligence Per Se (Count IX); Breach of Express Warranty (Count X); Breach of Implied Warranty (Count XI); Fraudulent Misrepresentation (Count XII); Fraudulent Concealment (Count XIII); and Violations of the Texas Deceptive Trade Practices Act ("DTPA") (Count XIV).

On May 26, 2020, Bard filed the instant motion, arguing that: (1) Simien's Amended Complaint fails to allege sufficient facts specific to Simien's case and thus is an impermissible pleading under Rule 8(b) and 12(b)(6); (2) federal law preempts Simien's claims; (3) Simien's claims of fraudulent misrepresentation, fraudulent concealment, and negligent misrepresentation should be dismissed because they do not meet the heightened pleading standard under Rule 9(b); (4) Simien's claims of breach of express and implied warranty fail because Simien did not provide Bard with the requisite pre-suit notice, and the Amended Complaint fails to allege privity between Simien and Bard; (5) Simien cannot recover for his personal injuries under the DTPA; (6) Simien's claim for Negligence - Failure to Recall/Retrofit fails because Texas does not recognize a post-sale duty to warn or recall defective products; and (7) Simien fails to state a claim upon which punitive damages can be awarded. Alternatively, Bard's motion requests that the court strike certain immaterial and prejudicial allegations relating to products not at issue in Simien's case and order Simien to provide a more definite statement.

On June 9, 2020, Simien filed his Response (#16) to Bard's motion in which he agrees that his claims for Failure to Recall/Retrofit (Count VI), Breach of Express Warranty (Count X), and Breach of Implied Warranty (Count XI) have no basis in Texas law and should be dismissed.Simien's Response opposes the remainder of Bard's motion. On June 16, 2020, Bard filed a Reply (#17) in which Bard withdraws its federal preemption argument and reinforces its arguments that: Simien's pleading fails to meet the pleading requirements of Federal Rules of Civil Procedure 8(a) and 9(b); Simien's DTPA claim should be dismissed; Simien is not entitled to punitive damages; and the allegations regarding products other than the G2 filter are immaterial to Simien's case and should be stricken.

As discussed previously, Simien agrees that his causes of action for Failure to Recall/Retrofit (Count VI), Breach of Express Warranty (Count X), and Breach of Implied Warranty (Count XI) should be dismissed. Thus, to the extent Bard's motion requests that Counts VI, X, and XI be dismissed, its motion is granted as unopposed. Further, the court recognizes Bard's federal preemption arguments as withdrawn. The court now considers Bard's remaining arguments in the pending motion.

II. Analysis

A. Motion to Dismiss Standard Under Rule 12(b)(6)

A motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure tests only the formal sufficiency of the statement of a claim for relief and is "appropriate when a defendant attacks the complaint because it fails to state a legally cognizable claim." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), cert. denied, 536 U.S. 960 (2002); accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding that in order "[t]o 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"); Wilson v. Houston Cmty. Coll. Sys., 955 F.3d 490, 495 (5th Cir. 2020); IberiaBank Corp. v. Ill. Union Ins. Co., 953 F.3d339, 345 (5th Cir. 2020); Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 734 (5th Cir. 2019). "[It] is not a procedure for resolving contests about the facts or the merits of a case." Stanfield v. Boston Sci. Corp., 166 F. Supp. 3d 873, 877 (S.D. Tex. 2015); 5B CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 1356 (3d ed. 2019). In ruling on such a motion, the court must accept the factual allegations of the complaint as true, view them in a light most favorable to the plaintiff, and draw all reasonable inferences in favor of the plaintiff. Hernandez v. Mesa, ___ U.S. ___, 137 S. Ct. 2003, 2005 (2017); Houston Cmty. Coll. Sys., 955 F.3d at 495; IberiaBank Corp., 953 F.3d at 345 (citing Leal v. McHugh, 731 F.3d 405, 410 (5th Cir. 2013)); Walker, 938 F.3d at 735. The court, however, does not "strain to find inferences favorable to the plaintiff[]" or "accept conclusory allegations, unwarranted deductions, or legal conclusions." Southland Sec. Corp. v. INSpire Ins. Sols., Inc., 365 F.3d 353, 361 (5th Cir. 2004).

"[T]he plaintiff's complaint [must] be stated with enough clarity to enable a court or an opposing party to determine whether a claim is sufficiently alleged." Ramming, 281 F.3d at 161 (citing Elliott v. Foufas, 867 F.2d 877, 880 (5th Cir. 1989)). The "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); accord Davis v. Tex. Health & Human Servs. Comm'n, 761 F. App'x 451, 454 (5th Cir. 2019); Lee v. Verizon Commc'ns, Inc., 837 F.3d 523, 533 (5th Cir. 2016), cert. denied, 137 S. Ct. 1374 (2017). "Where the well-pleaded facts of a complaint do not permit a court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'show[n]'—'that the pleader is entitled to relief.'" Walker, 938 F.3d at 734 (quoting Iqbal, 556 U.S. at 678). Hence, "a complaint's allegations 'must make relief plausible, not merelyconceivable, when taken as true.'" Id. (quoting United States ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 186 (5th Cir. 2009)); see Longoria ex rel. M.L. v. San Benito Indep. Consol. Sch. Dist., 942 F.3d 258, 263 (5th Cir. 2019) ("Though the complaint need not contain 'detailed factual allegations,' it must contain sufficient factual material to 'allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" (quoting Iqbal, 556 U.S. at 678)).

A Rule 12(b)(6) motion to dismiss must be read in conjunction with Rule 8(a) of the Federal Rules of Civil Procedure. Twombly, 550 U.S. at 555. Accordingly, a district court should not dismiss a complaint for failure to state a claim unless a plaintiff has failed to plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570; accord IberiaBank Corp., 953 F.3d at 345 (quoting Iqbal, 556 U.S. at 678); Zastrow v. Houston Auto Imports Greenway Ltd., 789 F.3d 553, 559 (5th Cir. 2015); Leal, 731 F.3d at 410; Wilson v. Birnberg, 667 F.3d 591, 595 (5th Cir.), cert. denied, 567 U.S. 936 (2012). "A...