Troyer v. I-Flow Corp.
| Decision Date | 23 June 2011 |
| Docket Number | NO. 1:11-CV-00045,1:11-CV-00045 |
| Parties | JOSEPH TROYER, Plaintiff, v. I-FLOW CORPORATION, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
This matter is before the Court on Defendant's Motion to Dismiss Third, Fourth, Fifth, Sixth, Seventh, and Eighth Causes of Action (doc. 4), Plaintiff's Response in Opposition(doc. 7) and Defendant's Reply (doc. 8). For the following reasons, the Court DENIES Defendant's Motion to Dismiss (doc. 4).
In this diversity action, Plaintiff Joseph Troyer seeks damages for injuries allegedly caused by the use of a pump manufactured by Defendant I-Flow that dispensed pain medication into his knee joint after surgery on June 24, 2004 (doc. 1). Plaintiff alleges he developed chondrolysis, a rapid loss of cartilage and a narrowing of the joint space, as a result of the pump's continuous infusion of pain medication into his knee joint after the surgery. Plaintiff alleges his condition will require him to undergo additional surgery, including a total knee replacement (Id.). Plaintiff's Complaint includes claims fordefect in design, defect due to inadequate warning, failure to conform to representation, negligence, breach of express warranty, breach of implied warranties of merchantability and of fitness for a particular purpose, and punitive damages (Id.).
With respect to the breach of express and implied warranty claims, Defendant contends that it is precluded by Ohio's Product Liability Act ("OPLA"). Specifically, Defendant reads the breach of warranty claim as being a claim for the implied breach of warranty of merchantability and fitness for particular use, and OPLA, O.R.C. 2307.71 et seq., preempts any UCC-based claims for breach of implied warranty of merchantability or intended use (doc. 4, citing Barrett v. Waco Int'l, 123 Ohio App. 3d, 1 702 N.E.2d 1216, 1997 Ohio App. LEXIS 3680 (8th App. Dist. 1997)("Ohio product liability statutes preempt warranty claims concerning products which seek damages for bodily injury"); Luthman v. Minster Supply Co. , 2008 Ohio 165, 2008 Ohio App. LEXIS 139 (3rd App. Dist. 2008) ("Product liability claims are subject to the provisions in R.C. 2307.71 to R.C. 2307.79")).
In response, Plaintiff notes that OPLA does not preclude common-law actions sounding in negligence for injuries that occurred prior to April 7, 2005 (doc. 7, citing, Carrell v. Allied Prods. Corp., 677 N.E.2d 795 (Ohio 1997)). Plaintiff contends that though an amendment was later passed abrogating common law claims including negligence, the amendment became effective April 7, 2005,and did not apply retroactively (O.R.C. §2307.71(B); doc. 7, citing Wimbush v. Wyeth, 619 F.3d 632 (6th Cir. 2010) and Doty v. Fellhauer Elec., Inc., 888 N.E.2d 1138 (Ohio Ct. App. 2008)).
Furthermore, Plaintiff argues that his Complaint alleges each element of claim for failure to conform (doc. 7). Plaintiff contends he alleges representation of a material fact, nonconformance with that representation, justifiable reliance on the representation by the Plaintiff and his orthopedic surgeon, Dr. Baker, and that the reliance was a direct and proximate cause of Plaintiff's injuries (Id.). Plaintiff also notes strong similarities in his complaint to the complaints of other I-Flow cases that have come before the Court, each of which has survived in its entirety, even through summary judgment, up until the cases settled (Id., citing Clonch v. I-Flow Corp., 2010 U.S. Dist. LEXIS 121607 (S.D. Ohio 2010); Lefker v. I-Flow Corp., 2010 U.S. Dist. LEXIS 121624 (S.D. Ohio 2010)). Finally, Plaintiff argues that other federal courts have rejected arguments by pain pump defendants that the complaint must allege the exact language, location, and time of misrepresentation to comply with the pleading standard (Id., citing Ridings v. Stryker Sales Corp., 2010 U.S. Dist. LEXIS 126953 (D. Minn. 2010); Partridge v. Stryker Sales Corp., 2010 U.S. Dist. LEXIS 126758 (D. Minn. 2010); Strong v. Stryker Sales Corp., 2010 U.S. Dist. LEXIS 126749 (D. Minn. 2010)).
In reply, Defendant argues that the Wimbush and Dotydecisions are distinguishable from the current action. In Wimbush, the Defendant argues the holding narrowly allowed only the specific action in the case to continue because the Plaintiff in the case filed her complaint prior to the 2005 amendment (doc. 8, citing 619 F.3d 632). Similarly, Doty held that claims accruing prior to the amendment to OPLA were not subject to preclusion (Id., citing 888 N.E.2d 1138).
With respect to Plaintiffs' claim for punitive damages, Defendant moves to dismiss on the basis that the claim fails to meet the Iqbal/Twombly threshold (doc. 4, citing Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). Specifically, Defendant contends that Ohio law holds that to recover punitive damages a plaintiff must establish that his injury was the result of misconduct that manifested a flagrant disregard of the safety of persons who might be harmed by the product in question, see O.R.C. 2307.80(c)(1), but that Plaintiff did not set forth any facts in his Complaint that would support a showing of "flagrant disregard" (doc. 8). Indeed, Defendant contends Plaintiff's complaint contains merely "conclusory and formulaic recitations" and that the only factual assertion Plaintiff makes in his complaint to support his claim for punitive damages is that Defendant had actual knowledge that the pump could cause injury, which, Defendant argues, is insufficient because the Court cannot plausibly infer "flagrant disregard" from that fact(doc. 4).
In response, Plaintiff notes that the Court previously denied I-Flow's motion to dismiss as to punitive damages in Clonch v. I-Flow Corp., and Lefker v. I-Flow Corp., finding that a reasonable fact-finder could conclude that an award of punitive damages was justified under substantially similar circumstances (doc. 7). Here, Plaintiff contends that he has alleged that I-Flow had knowledge of the risk of chondrolysis, that it chose to withhold that information from the orthopedic community, that it refused to conduct safety testing or limit its marketing tactics, and that Defendant is on notice of Plaintiffs' ground for their claim to punitive damages "with enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the claim]," which is what Twombly requires (Id.).
In reply, Defendant argues simply that the Plaintiff failed to plead any "specific express representation" made by I-Flow, or any factual showings that the Plaintiff actually relied on those representations (doc. 8). Regarding the punitive damages issue, Defendant contends that Plaintiff needed to have cited accurate information indicating that I-Flow had actual knowledge of chondrolysis (Id.). Defendant argues Plaintiff merely alleges that I-Flow knew of chondrolysis cases in its own pumps when the evidence only suggests I-Flow knew of chondrolysis developing after the use of pain pumps (not specifically theirs), and that suchallegation fails to comply with the "specificity requirements" of Iqbal and Twombly (Id.).
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) requires the Court to determine whether a cognizable claim has been pled in the complaint. The basic federal pleading requirement is contained in Fed. R. Civ. P. 8(a), which requires that a pleading "contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976); Erickson v. Pardus, 551 U.S. 89 (2007). In its scrutiny of the complaint, the Court must construe all well-pleaded facts liberally in favor of the party opposing the motion. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A complaint survives a motion to dismiss if it "contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Courie v. Alcoa Wheel & Forged Products, 577 F.3d 625, 629-30 (6th Cir. 2009), quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
The admonishment to construe the plaintiff's claim liberally when evaluating a motion to dismiss does not relieve a plaintiff of his obligation to satisfy federal notice pleading requirements and allege more than bare assertions of legal conclusions. Wright, Miller & Cooper, Federal Practice and Procedure: § 1357 at 596 (1969). "In practice, a complaint . . . must contain either direct or inferential allegations respecting all of the material elements [in order] to sustain a recovery under some viable legal theory." Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984), quoting In Re: Plywood Antitrust Litigation, 655 F.2d 627, 641 (5th Cir. 1981); ...
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