Taupier v. Davol, Inc.

Decision Date23 September 2020
Docket NumberCase No. 3:19-cv-10184-KAR
Citation490 F.Supp.3d 430
Parties Todd TAUPIER, Plaintiff, v. DAVOL, INC., Defendant.
CourtU.S. District Court — District of Massachusetts

Richard T. Jordan, Jr., Kotfila & Jordan, Timothy M. Kotfila, Law Office of Timothy Kotfila, Springfield, MA, for Plaintiff.

Doyle C. Valley, Ashley B. Nicotra, Morrison Mahoney LLP, Boston, MA, for Defendant.




This product liability case is before the court on Defendant Davol, Inc.’s ("Defendant") motion to dismiss Plaintiff Todd Taupier's ("Plaintiff") First Amended Complaint for failure to state a claim upon which relief may be granted (Dkt. No. 26). See Fed. R. Civ. P. 12(b)(6). Plaintiff has opposed the motion (Dkt. No. 28). The parties have consented to this court's jurisdiction (Dkt. No. 10). See 28 U.S.C. § 636(c) ; Fed. R. Civ. P. 73. For the reasons that follow, the motion is ALLOWED in part and DENIED in part.


On or about October 21, 1999, Plaintiff underwent surgery to repair a left inguinal hernia at the Massachusetts General Hospital in Boston, Massachusetts (Dkt. No. 23 ¶ 4).2 A Reconix polytetrafluoroethylene ("ePTFE") mesh patch, which was manufactured by Defendant, was inserted during the procedure (Dkt. No. 23 ¶¶ 4, 18).

An April 3, 2017 CT scan of Plaintiff's abdomen revealed an abscess (Dkt. No. 23 ¶¶ 6, 7). On or about May 8, 2017, Plaintiff presented at the Holyoke Medical Center Emergency Department complaining of sharp pain and cramping on the left side of his left pelvis and in his left lower quadrant (Dkt. No. 23 ¶ 5). A CT scan of Plaintiff's abdomen and pelvis on that date revealed inflammation that was consistent with a recurrent abscess that was "considerably worse" than it appeared on the April CT scan (Dkt. No. 23 ¶ 6, 7). The abscess was located on the left anterior wall of Plaintiff's abdomen in the area where the Reconix ePTFE mesh patch had been implanted (Dkt. No. 23 ¶ 6). Plaintiff was diagnosed with perforated sigmoid diverticulitis3 with an abscess and "probable infection" of the mesh patch, which was identified in the left inguinal canal (Dkt. No. 23 ¶ 8). Because John Mazzucco, M.D., determined that the mesh patch required immediate removal, Plaintiff was admitted to the hospital and underwent surgery on May 10, 2017 (Dkt. No. 23 ¶¶ 9, 10). Dr. Mazzucco removed the infected mesh patch and drained the inguinal abscess (Dkt. No. 23 ¶ 10). On May 15, 2017, Dr. Mazzucco performed a laparoscopic sigmoid resection with mobilization of the splenic flexure (Dkt. No. 23 ¶ 11).4 Plaintiff was discharged from the hospital on May 19, 2017 (Dkt. No. 23 ¶ 14).

Plaintiff alleges that the Reconix ePTFE mesh patch "migrated and/or deteriorated over time" and perforated his large intestine thereby directly causing his injuries (Dkt. No. 23 ¶ 19). In addition, according to the complaint, the ePTFE mesh "had a propensity to allow bacteria to enter and hide from [his body's] defenses" that were designed to eliminate the bacteria (Dkt. No. 23 ¶ 20). Specifically, Plaintiff alleges that "[t]he bacteria ... secrete[d] an encasing slime which protect[ed] them from destruction by the ... body's defenses including white blood cells" (Dkt. No. 23 ¶ 20). According to the complaint, the ePTFE mesh also had a "propensity" to shrink by 30% to 50% (Dkt. No. 23 ¶ 21). In addition, Defendant's ePTFE mesh allegedly was "known to depolymerize and stress crack" after implantation and to "flake and crack" and degrade inside the body (Dkt. No. 23 ¶¶ 22, 23). Plaintiff alleges that, at the time the Reconix ePTFE mesh patch was implanted, he "was not informed of and had no knowledge of the known complications and risks" associated with it (Dkt. No. 23 ¶ 25).

Plaintiff filed his First Amended Complaint on October 25, 2019 (Dkt. No. 23). He brings claims for breach of warranty (Count I), negligence (Count II), and "strict liability" for Defendant's failure to warn (Count III). He alleges that, in addition to producing "prolonged pain and suffering and permanent scarring," Defendant's "dangerous and defective" mesh patch caused him to incur medical expenses and lose wages and restricted his ability to enjoy life and engage in his usual activities (Dkt. No. 23 ¶¶ 16, 17, 18).


"A Rule 12(b)(6) motion to dismiss challenges a party's complaint for failing to state a claim." Ngomba v. Olee , CIVIL ACTION NO. 18-11352-MPK, 2020 WL 107969, at *2 (D. Mass. Jan. 9, 2020). In ruling on the motion, a court must "treat all well-pleaded facts in the complaint as true and draw all reasonable inferences in favor of the plaintiff." In re Fin. Oversight & Mgmt. Bd. for P.R. , 919 F.3d 121, 127 (1st Cir. 2019) (citing Ocasio-Hernández v. Fortuño-Burset , 640 F.3d 1, 7 (1st Cir. 2011) ). "In order to survive a motion to dismiss under Rule 12(b)(6), the plaintiff must provide ‘enough facts to state a claim to relief that is plausible on its face.’ " Ngomba, 2020 WL 107969, at *2 (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "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." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). "A determination of plausibility is ‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’ " Grajales v. P.R. Ports Auth., 682 F.3d 40, 44 (1st Cir. 2012) (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 ). "[L]abels and [legal] conclusions, and a formulaic recitation of the elements of a cause of action" are insufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. "Simply put, the court should assume that well-pleaded facts are genuine and then determine whether such facts state a plausible claim for relief." Ngomba, 2020 WL 107969, at *2 (citing Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 ).


In addition to raising specific legal challenges, Defendant generally disputes Plaintiff's claims on the ground that they are conclusory allegations, which fail to meet the minimum degree of specificity required by Twombly, Iqbal, Fed. R. Civ. P. 8(a)(2) (a complaint for relief must state "a short and plain statement of the claim showing that the pleader is entitled to relief"), and Fed. R. Civ. P. 12(b)(6) (Dkt. No. 27 at 7-8).

A. Count I: Breach of Warranty

"In Massachusetts, there is no strict liability cause of action for a defective product." Phillips v. Medtronic, Inc. , 754 F. Supp. 2d 211, 216 (D. Mass. 2010) (citing Commonwealth v. Johnson Insulation, 425 Mass. 650, 682 N.E.2d 1323, 1326 (1997) ).5 "Such a claim must be brought as a claim for breach of the implied warranties of merchantability and/or fitness for a particular purpose under Mass. Gen. Laws ch. 106, §§ 2–314 and 2–315, or of an express warranty under § 2–313." Id. Plaintiff claims that Defendant's Reconix ePTFE mesh patch breached the express warranty and the implied warranties of merchantability and fitness for its intended use (Dkt. No. 23 ¶¶ 30, 31, 32).

1. The First Amended Complaint Fails to State a Claim for Breach of the Express Warranty

Plaintiff alleges that Defendant "expressly warranted, through its mesh patch, and by the statements and conduct of its employees and agents, that the mesh patch was fit for use, and not otherwise adulterated or injurious to health" (Dkt. No. 23 ¶ 30). Defendant argues that the express warranty claim should be dismissed because Plaintiff fails to allege the express warranty's terms and his reliance upon them (Dkt. No. 27 at 10-11).

Under Massachusetts law, " ‘an express warranty claim is and generally has been understood to be an action of contract.’ " Sprague v. Upjohn Co. , Civ. A. No. 91-40035-NMG, 1995 WL 376934, at *2 (D. Mass. May 10, 1994) (quoting Anthony's Pier Four Inc. v. Crandall Dry Dock Eng'rs, Inc., 396 Mass. 818, 489 N.E.2d 172, 175 (1986) ). According to the Massachusetts version of the Uniform Commercial Code, Mass. Gen. Laws ch. 106 § 2-313(1) :

(a) any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(b) any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
(c) any sample or model which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the sample or model.

Mass. Gen. Laws ch. 106, § 2-313(1). "The theory of such a claim is that the defendants are liable to the plaintiff for failure to provide a design that meets a standard of performance allegedly promised by the defendants." Anthony's Pier Four, Inc. 489 N.E.2d at 175. "Because the standard of performance is set by defendant's express promises to the plaintiff, ‘the plaintiff must demonstrate that the defendant promised a specific result’ and that defendant failed to deliver on his promise and, therefore, breached the express warranty." Jackson v. Johnson & Johnson & Janssen Pharms., Inc. , 330 F. Supp. 3d 616, 627 (D. Mass. 2018) (quoting Anthony's Pier Four, Inc., 489 N.E.2d at 175 ). "Furthermore, in an express warranty claim, plaintiff must show reliance on such warranty." Sprague, 1995 WL 376934, at *3 (citing Roth v. Ray-Stel's Hair Stylists, Inc., 18 Mass.App.Ct. 975, 470 N.E.2d 137, 138 (1984) (rescript)).

Notwithstanding Plaintiff's claim that he was not informed of the "known complications and risks" associated with the Reconix ePTFE mesh patch, his complaint fails to identify "any...

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