Welch v. Wright Medical Technology Incorporated et al

Filing 45

ORDER re 7 MOTION to Dismiss Case filed by Wright Medical Group Incorporated, Wright Medical Technology Incorporated. Plaintiff shall file an amended complaint on or before 10/19/2012. Signed by Judge David G Campbell on 10/3/2012. (NVO)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CV-11-2113-PHX-DGC

Virginia M. Welch,
Plaintiff,

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v.

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ORDER

Wright Medical Technology, Inc., a
Delaware corporation; and Wright Medical
Group, Inc., a Delaware corporation,

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Defendants.

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Plaintiff Virginia M. Welch filed her initial complaint on October 27, 2011,

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alleging claims of strict liability for failure to warn, strict liability for design defects,

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strict liability for manufacturing defects, breach of express warranty, negligence, and

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punitive damages. Doc. 1. Defendants Wright Medical Technology, Inc. and Wright

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Medical Group, Inc. (collectively “the Wright Defendants”) filed a Motion to Dismiss for

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failure to state a claim upon which relief can be granted. Doc. 7. Plaintiff filed a

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response to the Motion to Dismiss. Doc. 16. For the reasons that follow, the Court will

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grant in part and deny in part the Wright Defendant’s Motion to Dismiss.

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I.

Background.

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The facts alleged in the complaint are as follows. Plaintiff is a citizen of the State

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of Arizona. Doc. 1, ¶ 1. On or about February 2, 2006, Plaintiff underwent a right total

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hip arthroplasty. Doc. 1, ¶ 10. In the course of this procedure, Plaintiff received a

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Wright Medical PROFEMUR Z hip implant (“Wright Implant”). Doc. 1, ¶¶ 10, 11. On

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or about November 4, 2009, Plaintiff was evaluated by Tina M. Horton, PA-C, in the

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office of Danton S. Dungy, M.D. for continuing right hip pain. Doc. 1, ¶ 13. In this

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evaluation, radiographs revealed that an acetabular cup, right arthoplasty, had rotated

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approximately 90 degrees clockwise. Doc. 1, ¶ 13. Because of this evaluation, Plaintiff

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became aware that the Wright Implant was defective. Doc. 1, ¶ 13. On or about

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November 16, 2009, Plaintiff had the Wright Implant surgically removed. Doc. 1, ¶ 14.

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Plaintiff makes the following claims against the Wright Defendants: (1) strict

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liability for failure to warn, (2) strict liability for design defect, (3) strict liability for

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manufacturing defect, (4) breach express warranty, (5) negligence, and (6) punitive

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damages.

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II.

Legal Standard.

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When analyzing a complaint for failure to state a claim to relief under Rule

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12(b)(6), the well-pled factual allegations “‘are taken as true and construed in the light

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most favorable to the nonmoving party.’” Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th

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Cir. 2009) (citation omitted). To avoid dismissal, the complaint must plead “enough facts

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to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 570 (2007).

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III.

Wright Defendants’ Motion to Dismiss.

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The Wright Defendants move to dismiss Plaintiff’s claims for strict liability for

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failure to warn, strict liability for design defect, breach of express warranty, and punitive

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damages.

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A. Strict Liability for Failure to Warn.

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To establish a prima facie case of strict liability, Arizona Law requires plaintiffs to

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show that the defective product “is the proximate cause of the plaintiff’s injuries.” Dole

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Food Co., Inc. v. North Carolina Foam Industries, Inc., 935 P.2d 876, 879 (App. 1996)

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(citing Piper v. Bear Medical Systems, Inc., 883 P.2d 407, 410 (App. 1993)); accord

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Gosewisch v. American Honda Motor Co., 737 P.2d 376, 379 (1987) (superseded by

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statute on other grounds). To prove proximate cause in a failure to warn case, “[w]hat is
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required is ‘evidence that had a proper warning been given, [the plaintiff] would not have

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used the product in the manner which resulted in his injury, or by evidence that certain

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precautions would have been taken that would have avoided the accident.’” Dole Food

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Co., 935 P.2d 876 at 883 (citing Gosewisch, 737 P.2d at 397); see also Gebhardt v.

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Mentor Corp., 191 F.R.D. 180, 184-85 (D. Ariz. 1999) (granting summary judgment to

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defendant on a failure to warn claim when plaintiff failed to show that a doctor would not

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have used a medical device on plaintiff if alternative warnings were given); Mills v.

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Bristol-Myers Squibb Co., CV 11-00968-PHX-FJM, 2011 WL 4708850, at *3 (D. Ariz.

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Oct. 7, 2011) (dismissing a failure to warn claim because plaintiff had not pled facts

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sufficient to show that a doctor would not have prescribed a drug if an appropriate

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warning was given).

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The Wright Defendants argue that Plaintiff fails to advance any allegation that her

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doctor would not have recommended the Wright Implant if a warning had been given.

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Plaintiff argues that alleging that failure to warn was one of the causes of Plaintiff’s

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injury is sufficient to avoid a dismissal, but Arizona law requires evidence that Plaintiff

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would have acted differently if a warning had been given. See Dole Food Co., 935 P.2d

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876 at 883. Plaintiff makes no such allegation. See Doc. 1. The Court will dismiss

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Plaintiff’s failure to warn claim.

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B. Strict Liability for Design Defects.

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For a plaintiff to make a strict liability design defect claim, Arizona law requires

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that the product either “‘fai[l] to perform as safely as an ordinary consumer would expect

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when used in an intended or reasonable manner’ (the consumer expectation test), or ‘the

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benefits of a challenged design . . . outweigh the risk of danger inherent in the design’

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(risk/benefit analysis).” Stillwell v. Smith & Nephew, Inc., 482 F.3d 1187, 1194 (9th Cir.

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2007) (citing Golonka v. General Motors Corp., 63 P.3d 956, 963 (App. 2003)). This

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standard is analogous to the standard proposed by the Third Restatement of Torts, see

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Restatement (Third) of Torts: Prod. Liab. § 2(b) (1998) (stating that a design is defective

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“when the foreseeable risks of harm posed by the product could have been reduced or
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avoided by the adoption of a reasonable alternative design”), but the Restatement adopts

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a different standard for design defect claims against manufacturers of prescription drugs

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and medical devices. Restatement (Third) of Torts: Prod. Liab. § 6(c). This standard

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requires that “the foreseeable risks of harm posed by the drug or medical device are

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sufficiently great in relation to its foreseeable therapeutic benefits that reasonable health-

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care providers, knowing of such foreseeable risks and therapeutic benefits, would not

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prescribe the drug or medical device for any class of patients.” Id. Arizona courts have

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not formally adopted this test for prescription drugs and medical devices, but it has been

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followed by other judges of this district. See Gebhart, 191 F.R.D. 180, 185; see also

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Mills, 2011 WL 4708850, at **2-3 (applying the Restatement (Third) of Torts § 6(c)

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absent guidance from Arizona courts); Harrison v. Howmedica Osteonics Corp., CV-06-

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0745-PHX-RCB, 2008 WL 906585, at **21-22 (D. Ariz. Mar. 31, 2008) (applying the

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Restatement (Third) of Torts § 6(c) standard absent guidance from Arizona courts).

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“Arizona has demonstrated a willingness to look to” the Restatement “as the current

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statement of the law[.]” Gebhart, 191 F.R.D. at 185 (citing Jimenez v. Sears, Roebuck &

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Co., 904 P.2d 861, 867 (1995)). This Court will apply the Restatement § 6(c) standard.

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Under this standard, the Wright Defendants argue that Plaintiff has failed to state a

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claim because she has not alleged that the Wright Implant would not be prescribed by a

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reasonable healthcare provider to any class of patients.

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Plaintiff clearly has pled a design defect claim. The facts that must be proved to establish

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that claim under § 6(c) need not be pled in every detail in the complaint. The Court will

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not dismiss this claim

The Court does not agree.

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C. Plaintiff’s Claim for Breach of Express Warranty.

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Under Arizona law, to create an express warranty, a seller must provide an

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“affirmation of fact or promise,” “a description of the goods,” or “a sample or model”

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that becomes “part of the basis of the bargain.” A.R.S. § 47-2313(A). Thus, to avoid a

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Rule 12(b)(6) dismissal, Plaintiff must allege that the seller has provided an affirmation

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of fact, a promise, a description of the goods, a sample, or a model.
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The Wright Defendants argue that Plaintiff’s breach of express warranty claim is

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“vague and conclusory” and fails to provide specifics of when and how the warranty was

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communicated. Doc. 7, at 6. Plaintiff argues that alleging that the Wright Defendants

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“warranted to Plaintiff’s healthcare provider and to the ultimate consumers of the

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products, including Plaintiff Virginia Welch, that the Wright [Implant] would safely and

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efficiently act as a comprehensive component in a hip implant system for patient

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undergoing total hip arthroplasty” is sufficient to avoid a dismissal. Doc. 1, ¶ 35. But

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Plaintiff fails to allege the affirmation of fact, promise, description of the goods, sample,

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or model that gave rise to this warranty. See Doc. 1. This is a critical defect in the

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pleading, because Defendants are given no notice of the actions that allegedly created the

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warranty at issue.

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warranty.

The Court will dismiss Plaintiff’s claim for breach of express

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D. Punitive Damages.

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Arizona law allows punitive damages when the defendant has an “evil mind.”

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Volz v. Coleman Co., Inc., 748 P.2d 1191, 1194 (Ariz. 1987). See also Gurule v. Illinois

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Mut. Life and Cas. Co., 734 P.2d 85, 86 (Ariz. 1987); Rawlings v. Apodaca, 726 P.2d

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565, 578 (Ariz. 1986). An evil mind is established with “evidence that defendant either

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(1) ‘intended to injure the plaintiff [or (2)] consciously pursued a course of conduct

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knowing that it created a substantial risk of significant harm to others.’” Gurule, 734

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P.2d at 87 (citing Rawlings, 726 P.2d at 578-79).

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Plaintiff argues that the allegations of paragraphs 52-57 of the complaint meet the

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standard of punitive damages. See Doc 13, at 13-14. There, Plaintiff alleges that her

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injuries resulted from “intentional wrongdoing, reckless disregard and/or gross

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negligence.” Doc. 1, ¶ 52. Further, Plaintiff alleges that the Wright Defendants’ conduct

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“involved an extreme degree of risk” and that the Wright Defendants had a “subjective

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awareness of the risk involved.” Doc. 1, ¶¶ 53-54. These facts meet the Arizona

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standard of “consciously pursu[ing] a course of conduct knowing that it create[s] a

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substantial risk of significant harm to others.” Gurule, 734 P.2d at 87 (citing Rawlings,
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726 P.2d at 578-79).

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The Wright Defendants argue that the Arizona Supreme Court has “expressly

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rejected awarding punitive damages based on gross negligence or mere reckless disregard

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of the circumstances.” Doc. 7, at 7 (citing Volz, 748 P.2d at 1194). But when reckless

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disregard rises to the level of the Arizona standard, a standard the Wright Defendants

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themselves propose, punitive damages can be awarded. See Doc. 7, at 7. Further, the

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Wright Defendants fail to address Plaintiff’s claim of “intentional wrongdoing,” a claim

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that can also meet the Arizona standard. Doc. 1, ¶ 52. The Court will deny the Wright

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Defendants’ motion to dismiss the Plaintiff’s claim for punitive damages.

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IV.

Leave to Amend

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Plaintiff requests leave to file an amended complaint in the event any portion of

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Defendants’ motion is granted. Doc. 16, at 17. The Wright Defendants do not oppose

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this request.

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October 19, 2012.

The Court will grant the Plaintiff leave to amend the Complaint by

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IT IS ORDERED:

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1.

The Wright Defendants motion to dismiss (Doc. 7) is granted and part and
denied in part as set forth above.

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2.

Plaintiff shall file an amended complaint on or before October 19, 2012.

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Dated this 3rd day of October, 2012.

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