Tisher v. Wright Medical Group Inc et al
OPINION AND ORDER deferring ruling on Wright Medical Group's 5 motion to dismiss; and granting in part and denying in part the defendants' 7 motion to dismiss. Counts IV, V, VI, VII, and IX are dismissed. The claim for prejudgment interest also is dismissed. The motion is denied as to Count VIII, constructive fraud, and Count X, punitive damages. Signed by Judge J. Leon Holmes on 4/25/2017. (ljb)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
No. 4:16CV00846 JLH
WRIGHT MEDICAL GROUP, INC.; and
WRIGHT MEDICAL TECHNOLOGY, INC.
OPINION AND ORDER
Herbert Tishner had total hip replacement surgery on May 31, 2012. He has sued Wright
Medical Group, Inc., and Wright Medical Technology, Inc. He alleges, among other things, that the
hip implant—the PROFEMUR® hip system—is defective. Tishner says that Wright Medical
Technology designed and manufactured his hip implant, that Wright Medical Group played a
significant role in its design, and that Wright Medical Technology is merely the alter ego of Wright
Medical Group. Wright Medical Group has filed a motion to dismiss for lack of personal
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). Document #5. Wright Medical
Group and Wright Medical Technology have filed a motion to dismiss for failure to state a claim
pursuant to Rule 12(b)(6). Document #7. The Court defers consideration of the jurisdictional issue
to allow for discovery to determine the existence of personal jurisdiction over Wright Medical
A district court has the discretion to allow jurisdictional discovery. See Lakin v. Prudential
Sec., Inc., 348 F.3d 704, 713 (8th Cir. 2003) (citing Gen. Elec. Capital Corp. v. Grossman, 991 F.2d
1376, 1388 (8th Cir. 1993)). “[J]urisdictional discovery should be permitted where the plaintiff
offered ‘documentary evidence, and not merely speculations or conclusory allegations,’ regarding
the defendant’s contacts with the forum state.” Greenbelt Res. Corp. v. Redwood Consultants, LLC,
627 F. Supp. 2d 1018, 1027-28 (D. Minn. 2008) (quoting Steinbuch v. Cutler, 518 F.3d 580, 589
(8th Cir. 2008)). Such discovery is “particularly appropriate where the defendant is a corporation.”
Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 336 (3d. Cir. 2009). See also Surpitski v.
Hughes-Keenan Corp., 362 F.2d 254, 255-56 (1st Cir. 1966) (reasoning that a plaintiff who is
diligent and is a “total stranger to a corporation”should not be forced “try” the issue of personal
jurisdiction without the benefit of discovery)).
Tishner has provided the Court with more than speculations and conclusory allegations
regarding Wright Medical Group’s contacts with Arkansas, the forum state. See Document #12.
First, Tishner has submitted the corporate filing information for Wright Medical Technology in
Arkansas and Wright Medical Group in Tennessee. Documents ##12-1, 12-2. Wright Medical
Technology lists its foreign address as the principal address of Wright Medical Group. Id. Second,
Tishner has submitted a Wright Medical Group annual report, which says that Wright Medical
Group acquired a company called Cremascoli and several of its hip implant products designed for
the European market, including the PROFEMUR® hip system. Document #12-4 at 10. The report
The PROFEMUR-TM- R was designed by Cremascoli for the European market.
Although [Wright Medical Group] is currently selling the product in the U.S.,
[Wright Medical Group] is also developing a modified version and instrumentation
to address the needs of U.S. surgeons. The new system, the PROFEMUR-TM-USA
Modular Hip will capitalize on the successful clinical history of the current
PROFEMUR-TM-R product while incorporating new technology into the design.
Id. at 13. Third, Tishner has submitted a Wright Medical Group financial statement filed with the
Securities Exchange Commission, which discloses in a section entitled “Product Liability” certain
losses arising out of claims against Wright Medical Group based on damages resulting from the
“fracture of a PROFEMUR® long titanium modular neck.” Document #12-7 at 25.
This evidence raises questions about Wright Medical Group’s role in the manufacture,
design, and distribution of the hip implant Tishner alleges to be defective, and Wright Medical
Group’s relationship with Wright Medical Technology. Therefore, the Court orders discovery for
the purpose of establishing personal jurisdiction.
The defendants have moved to dismiss Counts IV, V, VI, VII, VIII, IX, and X of the
complaint for failure to state a claim. They have also moved to strike the demand for prejudgment
interest. Document #7. In response, Tishner has agreed to dismiss Counts IV, V, VI, VII, and IX.
Tishner also has withdrawn the claim for prejudgment interest. With these concessions, the
remaining issue is whether the complaint states a claim for relief in Count VIII, which alleges
constructive fraud, and Count X, which alleges a claim for punitive damages. The present issue is
not whether the defendants are liable for constructive fraud or punitive damages but whether the
complaint meets the pleading standards in the Federal Rules of Civil Procedure as to those claims.
The Court has concluded that they do.
The Court defers consideration of Wright Medical Group’s motion to dismiss pursuant to
Rule 12(b)(2) until the parties have conducted limited discovery on the issue of whether personal
jurisdiction exists over Wright Medical Group. The case will proceed on the following schedule:
The parties will complete jurisdictional discovery within 60 days of the entry of this
The parties will submit simultaneous briefs on the issue of personal jurisdiction
within 30 days of the completion of jurisdictional discovery.
The defendants’ motion to dismiss is GRANTED IN PART and DENIED IN PART.
Document #7. Counts IV, V, VI, VII, and IX are dismissed. The claim for prejudgment interest also
is dismissed. The motion is denied as to Count VIII, constructive fraud, and Count X, punitive
IT IS SO ORDERED this 25th day of April, 2017.
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?