Davis v. Boston Scientific Corporation
Filing
40
ORDER granting 37 Boston Scientific's Motion to Dismiss. Counts V, VI, and VII are DISMISSED with prejudice. Signed by Judge Sheri Polster Chappell on 6/28/2018. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FELICIA DAVIS,
Plaintiff,
v.
Case No: 2:17-cv-682-FtM-38CM
BOSTON SCIENTIFIC
CORPORATION,
Defendant.
/
OPINION AND ORDER1
This matter comes before the Court on Boston Scientific's Motion to Dismiss (Doc.
37), which was filed on June 1, 2018. Plaintiff Felicia Davis responded on June 15, 2018.
(Doc. 39). The matter is ripe for review.
BACKGROUND
The facts of this products liability case have already been outlined in the Court’s
previous Order dismissing Davis’ Amended Complaint. (Doc. 35). In the interests of
brevity, only the salient details will be repeated. This case concerns Boston Scientific’s
permanent inferior vena cava filter (the “Greenfield Filter), which was created to prevent
pulmonary embolisms. (Doc. 36 at ¶¶ 22, 27). A pulmonary embolism occurs when a
1
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allowing hyperlinks to other websites, this Court does not endorse, recommend, approve,
or guarantee any third parties or the services or products they provide on their websites.
Likewise, the Court has no agreements with any of these third parties or their websites.
The Court accepts no responsibility for the availability or functionality of any hyperlink.
Thus, the fact that a hyperlink ceases to work or directs the user to some other site does
not affect the opinion of the Court.
blood clot travels through blood vessels to block one of the pulmonary arteries in the
lungs. (Doc. 36 at ¶ 19). When clots form in deep leg veins, this condition is called deep
vein thrombosis. (Doc. 36 at ¶ 19).
Inferior vena cava filters have been the subject of research over the years. Davis
cites two studies from as early as 2008 that found permanent inferior vena cava filters
like the Greenfield Filter have comparable complication and protection rates to retrievable
filters. (Doc. 36 at ¶¶ 43, 45). And without specifying the dates, she alleges other “cited
studies have shown that long-term implantation of [inferior vena cava filters] can cause
subsequent [pulmonary embolisms] and [deep vein thrombosis].” (Doc. 36 at ¶ 27). She
also alleges that in 2010 and 2014 the United States Food and Drug Administration
cautioned against implanting inferior vena cava filters for extended periods of time due to
potential adverse health complications. (Doc. 36 at ¶¶ 36-40).
At some point prior to 2009, Davis suffered a pulmonary embolism. (Doc. 36 at ¶
23). She then had the Greenfield Filter implanted in her right common femoral vein.2
(Doc. 36 at ¶ 25). In 2015, she was hospitalized for chest pain and diagnosed with
bilateral segmental pulmonary emboli. (Doc. 36 at ¶ 27). Almost two years after that,
she was hospitalized again and diagnosed with deep vein thrombosis. (Doc. 36 at ¶ 28).
Davis then sued Boston Scientific in state court. (Doc. 2). After the case was
removed (Doc. 1), Boston Scientific moved to dismiss. (Doc. 7). Upon review, the Court
agreed with Boston Scientific and dismissed the Complaint. (Doc. 19). Davis then filed
2
It is unclear when the Greenfield Filter was implanted. The Complaint states it was done
in September 2009 (Doc. 2 at ¶ 43), while the Amended Complaint claims it happened in
2005 (Doc. 20 at ¶¶ 24, 26, 91, 258, 293, 295, 322). This confusion is compounded by
the Second Amended Complaint, which haphazardly uses both the 2005 (Doc. 36 at ¶¶
174-75, 186, 204, 209, 228, 239) and 2009 dates (Doc. 36 at ¶¶ 23, 25, 81).
2
an Amended Complaint with claims including negligence, strict liability manufacturing and
design
defect,
breach
of
warranty,
fraudulent
misrepresentation, and fraudulent concealment.
misrepresentation,
(Doc. 20).
negligent
Boston Scientific again
moved to dismiss. (Doc. 21). The Court then agreed with Boston Scientific in part and
dismissed the fraud and warranty-based claims. (Doc. 35 at 10-17).
Davis then filed a Second Amended Complaint. (Doc. 36). She alleges the
Greenfield Filter was defectively designed and manufactured. (Doc. 36 at ¶ 55). She
further alleges the Greenfield Filter was inadequately tested and had inadequate
warnings, instructions, and labeling. (Doc. 36 at ¶ 55). Based on these allegations, Davis
claims Boston Scientific is liable for: negligence (Count I), strict liability defective design
(Count II), strict liability manufacturing defect (Count III), strict liability failure to warn
(Count IV), fraudulent misrepresentation (Count V), fraudulent concealment (Count VI),
and negligent misrepresentation (Count VII). (Doc. 36 at ¶¶ 69-242). Now, for the third
time, Boston Scientific moves to dismiss. (Doc. 37).
LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a
short and plain statement of a claim showing the pleader is entitled to relief. Fraud
allegations are subject to heightened pleading standards under Federal Rule of Civil
Procedure 9(b), which requires a party to “state with particularity the circumstances
constituting fraud.” To meet this threshold, a pleading must allege
(1) precisely what statements were made in what documents
or oral representations or what omissions were made, and (2)
the time and place of each such statement and the person
responsible for making (or, in the case of omissions, not
making) same, and (3) the content of such statements and the
3
manner in which they misled the plaintiff, and (4) what the
defendants obtained as a consequence of the fraud.
Ziemba v. Cascade Int'l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001) (citing Brooks v. Blue
Cross and Blue Shield of Florida, Inc., 116 F.3d 1364, 1371 (11th Cir.1997)).
But
“[m]alice, intent, knowledge, and other conditions of a person’s mind may be alleged
generally.” Brooks, 116 F.3d at 1371. These standards are intended to “(1) provide
defendants with sufficient notice of what the plaintiff complains to enable them to frame a
response, (2) prevent fishing expeditions to uncover unknown wrongs, and (3) protect the
defendant from unfounded accusations of immoral or otherwise wrongful conduct.” U.S.
ex rel. Butler v. Magellan Health Servs., Inc., 101 F. Supp. 2d 1365, 1368 (M.D. Fla.
2000).
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a pleading for
failure to state a claim upon which relief can be granted. This decision hinges on the
Twombly–Iqbal plausibility standard, which requires a plaintiff to “plead 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 (2009); see also Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 556 (2007). At this stage, the Court must accept all factual
allegations in a complaint as true and take them in the light most favorable to the plaintiff.
Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). But acceptance is limited
to well-pleaded factual allegations. La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845
(11th Cir. 2004). A “the-defendant-unlawfully harmed me accusation” is insufficient.
Iqbal, 556 U.S. at 677. “Nor does a complaint suffice if it tenders naked assertions devoid
of further factual enhancement.” Id. (internal quotations omitted).
4
DISCUSSION
Boston Scientific argues Counts V, VI, and VII should be dismissed with prejudice
because Davis has failed to plausibly plead her claims despite three chances to do so.
Davis opposes. The Court will address each count in turn.
A.
Fraudulent Misrepresentation
Count V alleges Boston Scientific fraudulently misrepresented the Greenfield
Filter’s safety and efficacy through a number of avenues including its website, product
brochures, product labeling and direct statements to Davis’ doctor. The elements of a
fraudulent misrepresentation claim in Florida are “(1) a false statement concerning a
material fact; (2) the representor’s knowledge that the representation is false; (3) an
intention that the representation induce another to act on it; and (4) consequent injury by
the party acting in reliance on the representation.” Butler v. Yusem, 44 So. 3d 102, 105
(Fla. 2010). Boston Scientific argues Davis' allegations fail to meet the heightened
particularity threshold of Rule 9(b). The Court agrees.
1. The Website
Davis alleges Boston Scientific’s website misrepresented that the Greenfield Filter
had “[t]rusted performance, [t]imeless design,” “[p]roven [s]tability,” “[e]stablished [f]ilter
[p]erformance,” and that “[f]ilter [d]esign [p]romotes [c]lot [l]ysis.”3 (Doc. 36 at ¶¶ 165-66).
As a threshold matter, it is unclear whether Davis’ claims are based on Boston Scientific’s
current website, or the version in existence at the time of the implantation. Referring to
the current version is problematic because Davis acknowledges it is “not the same as
3
Though the Court indicates its modification of the quoted materials here, it will use
lowercase terminology throughout the remainder of the Order.
5
[what was] given to [her] at the time of her implant.” (Doc. 36 at ¶ 163). Of course,
reliance is a necessary element of a fraudulent misrepresentation claim. See Butler, 44
So. 3d at 105. Because Davis could not have relied on the current website at the time of
implantation, it provides no assistance. Nevertheless, at this stage the Court is required
to take the allegations in the light most favorable to Davis. Pielage, 516 F.3d at 1284. As
such, the claims will be construed to rest on the version of the website in existence at the
time of the implantation.
That resolved, the Court moves into substance. As was explained in a previous
Order, all but Boston Scientific’s alleged statement that “filter design promotes clot lysis”
are opinions. (Doc. 35 at ¶ 13). In Florida, “[a]n action for fraud generally may not be
predicated on statements of opinion.” Mejia v. Jurich, 781 So.2d 1175, 1177 (Fla. 3d
DCA 2001). But statements of opinion may support a fraudulent misrepresentation claim
where “the person expressing the opinion is one having superior knowledge of the subject
of the statement and the plaintiff can show that said person knew or should have known
from facts in his or her possession that the statement was false.” Id.
Here, the most obvious statement of opinion is Boston Scientific’s representation
that the Greenfield Filter has a “timeless design.” (Doc. 36 at ¶ 165). It cannot form the
basis for a fraudulent misrepresentation claim because Davis fails to plausibly allege
Boston Scientific had a superior knowledge of the timelessness of the design, or that it
knew or should have known from facts in its possession that the statement was false.
This makes sense because the concept of a product’s timelessness is entirely subjective.
The statements about the Greenfield Filter’s “trusted performance,” “established
filter performance,” and “proven stability” (Doc. 36 at ¶¶ 165-66), were also opinions.
6
They too fail to constitute fodder for a fraudulent misrepresentation claim. For starters,
Davis does not specify what exactly was trusted or established about the Greenfield
Filter’s performance, or proven about its stability. And even if she did, the Second
Amended Complaint does not allege Boston Scientific had a superior knowledge of the
subject. The closest it comes is by alleging that “[i]mportant information regarding the
risk of the Greenfield Filter was in the exclusive control of [Boston Scientific] and
exclusively known by [Boston Scientific].” (Doc. 36 at ¶ 179). But that allegation does
not meet Rule 9(b)’s heightened particularity threshold because it does not detail the
contents of Boston Scientific’s exclusive knowledge.
Similarly, as she did in the Amended Complaint, Davis fails to plausibly allege the
existence of any facts in Boston Scientific’s possession to indicate that it knew or should
have known its statements about the Greenfield Filter’s “trusted” and “established” filter
performance, or its “proven stability” were false at the time they were made.
Two
allegations from the Second Amended Complaint can be read to apply to this statement.
First, Davis alleges Boston Scientific “failed to disclose to physicians, patients, or [Davis]
in detail that . . . the Greenfield Filter was subject to breakage, collapse, migration,
perforation, causing thrombus, and/or the appropriate degree of risk of damage to the
vena cava wall and other complications after long-term implantation.” (Doc. 36 at ¶ 50)
(punctuation omitted). Second, she broadly alleges Boston Scientific “knew . . . its
misrepresentations were false regarding the dangers and risks associated with the use
of its Greenfield Filter.” (Doc. 36 at ¶ 183). These allegations fail because they relate
only to Boston Scientific’s knowledge of the product’s qualities. This differs from the
concepts of trust, establishment, or proof, which are third party value judgments.
7
That leaves only the statement that “filter design promotes clot lysis.” (Doc. 36 at
¶¶ 165-66). Lysis is “a process of disintegration or dissolution.”4 Because it is objectively
verifiable whether the Greenfield Filter’s design contributed toward the dissolution of clots,
the statement is one of fact. But even if it could be a viable basis for a fraudulent
misrepresentation claim, it fails under Rule 9(b) because it is unclear whether it was made
in 2005 (Doc. 36 at ¶¶ 174-75, 186) or 2009 (Doc. 36 at ¶¶ 23, 25, 81). See Ziemba,
256 F.3d at 1202 (finding “the time and place of each . . . statement” must be specifically
enumerated). Accordingly, all of Davis’ website-based allegations do not pass muster.
2. The Product Brochure
Next, Davis alleges Boston Scientific’s product brochure misrepresented that the
Greenfield Filter’s design had been consistent for thirty years, that its design is the most
trusted, that it is the most likely to protect from adverse events, and that the Greenfield
Filter’s “[r]ecurved hooks are designed to provide protection against penetration.” (Doc.
36 at ¶¶ 167-68). These claims suffer from the same ambiguity as the website-based
allegations in that they seem to be based on both past and current versions of Boston
Scientific’s product brochure. (Doc. 36 at ¶¶ 161-62). For the same reasons mentioned
above, Davis cannot rely on the current product brochure. See Butler, 44 So. 3d at 105
(finding reliance is a necessary element of a fraudulent misrepresentation claim).
Assuming the claims stem from a brochure in existence at the time of the
implantation, they still fail to the extent they are not based on Boston Scientific’s precise
statements. See Ziemba, 256 F.3d at 1202. Davis seeks to avoid this conclusion by
4
Lysis,
MERRIAM
W EBSTER
ONLINE
DICTIONARY,
webster.com/dictionary/lysis (last visited on June 22, 2018).
8
https://www.merriam-
citing the Eleventh Circuit’s decision in Hill v. Morehouse Med. Assocs, Inc., which she
claims allows her to plead her claims at a lower level of specificity. 2003 WL 22019936
(11th Cir. Aug. 15, 2003). That misreads the law. In Hill, the court noted that “Rule 9(b)’s
heightened pleading standard may be applied less stringently . . . when specific factual
information about . . . fraud is peculiarly within [a] defendant’s knowledge or control.” Id.
at *3 (internal quotations omitted). But that only occurs where the information is “in
exclusive control of the defendant and cannot be possessed by other entities.” Bray &
Gillespie Mgmt. LLC v. Lexington Ins. Co., No. 6:07CV222ORL19KRS, 2007 WL
3457585, at *3 (M.D. Fla. Nov. 14, 2007). Even then, a plaintiff must accompany “her
legal theory with factual allegations that make her theoretically viable claim plausible.”
Hill, 2003 WL 22019936, at *3. Mere conclusory allegations are insufficient to make a
claim plausible. Id. Likewise, the difficulty a person faces in securing information as an
outsider is not grounds for relaxing Rule 9(b)’s pleading standard. See id.
Here, Davis does not plausibly allege Boston Scientific’s past brochure is in its
exclusive control. To the contrary, she alleges it was once distributed freely enough that
she received a copy at the time of her implantation. (Doc. 36 at ¶ 163). Making matters
worse, she does not allege there is no viable way for her to obtain past copies of the
brochure.
The Eleventh Circuit has repeatedly noted that difficulty in obtaining
information is not the same as the inability to do so. See id.; see also U.S. ex rel. Clausen
v. Lab. Corp. of Am., 290 F.3d 1301, 1314 n.25 (11th Cir. 2002) (declining to use a lenient
pleading standard for a corporate outsider that was “not without avenues for obtaining
information” underlying his allegations). Thus, the mere fact that Davis does not possess
a copy of Boston Scientific’s past brochure is insufficient to lower Rule 9(b)’s pleading
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threshold. Therefore, Davis’ claims fail to the extent they are not supported with Boston
Scientific’s precise alleged statements.
That leaves Boston Scientific’s purported statement that the Greenfield Filter’s
“[r]ecurved hooks are designed to provide protection against penetration.” (Doc. 36 at ¶¶
167-68). But Davis does not specify why that statement was false or how it misled her.
Nor does she unambiguously state whether she received the brochure in 2005 (Doc. 36
at ¶¶ 174-75, 186) or 2009 (Doc. 36 at ¶¶ 23, 25, 81). Because these details are
necessary under Rule 9(b), the allegations fail as well. See Ziemba, 256 F.3d at 1202.
3. Labeling
Davis also alleges the Greenfield Filter’s labeling fraudulently misrepresented that
the product was safe and effective for its intended and reasonably foreseeable use. (Doc.
36 at ¶ 171). But this allegation is insufficient for three reasons. First, Davis does not
recite Boston Scientific’s precise misrepresentations. See Ziemba, 256 F.3d at 1202.
Second, it is unclear whether Davis even received the labeling. Count V states only that
“[t]he medical community and [Davis’] physicians used this information, including the
attending physician Dr. Joseph Creevy, and conveyed to [Davis] sometime prior to her
September 9, 2005 surgery.” (Doc. 36 at ¶ 174). What exactly Dr. Creevy conveyed to
Davis is left to the imagination.
Third, even if the Court were to overlook Davis’ failure to precisely restate Boston
Scientific’s statement and assume she received the labeling, her allegations still fail
because the Second Amended Complaint lists contradictory dates for her implantation –
and therefore for her reception of the labeling. On the one hand, Count V states the
information was “conveyed” to Davis prior to her surgery in 2005 (Doc. 36 at ¶ 174), but
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other parts of the Second Amended Complaint allege the surgery occurred in 2009. (Doc.
36 at ¶¶ 23, 25, 81). The Eleventh Circuit has been clear that a Plaintiff must plead “the
time and place of each . . . statement.” Id. By pleading two surgery dates that are four
years apart, Davis has failed to meet that standard.5 As such, the claim fails.
4. Statements from Dr. Creevy
Next, Davis alleges Boston Scientific made false statements to Dr. Creevy, the
medical community, and the FDA. (Doc. 36 at ¶ 171). She then alleges Dr. Creevy
communicated those misrepresentations to her. (Doc. 36 at ¶ 175-77). The Court need
not wade into the content of those statements to find them wanting. To hold Boston
Scientific liable for Dr. Creevy’s statements, Davis would need to allege the existence of
an agency relationship. See Palm Beach Roamer, Inc. v. McClure, 727 So. 2d 1005,
1007 (Fla. 5th DCA 1999); see also Great Fla. Bank v. Countrywide Home Loans, Inc.,
No. 10-22124-CIV, 2011 WL 382588, at *4 (S.D. Fla. Feb. 3, 2011). But she does not.
Davis argues this is not the case. She cites to an opinion from the Southern District
of Florida, Brady v. Medtronic, Inc., to contend that a plaintiff may have a plausible
fraudulent misrepresentation claim where a defendant’s misrepresentations induce a
doctor into reliance, and the doctor repeats the misrepresentations to the plaintiff. No.
13-62199-CIV, 2015 WL 11181971 (S.D. Fla. Mar. 30, 2015). Indeed, Brady does make
such a finding. Id. at *5. But it does so without first considering whether the defendant’s
liability hinged on the existence of an agency relationship with the third-party doctor. That
5
These problems are largely what can be expected when filing multiple cases with cookiecutter complaints. See Second Am. Compl., Kendall v. Boston Sci. Corp., No. 6:17-CV1888 (M.D. Fla. May 1, 2018); see also Second Am. Compl., Douse v. Boston Sci. Corp.,
2:17-CV-599 (M.D. Fla. May 21, 2018).
11
makes this case distinguishable.
Here, Florida law seems clear that where a defendant makes misrepresentations
to a third party, who then makes the same misrepresentations to a plaintiff, the liability of
the original defendant depends on the existence of an agency relationship.
See Palm
Beach Roamer, Inc., 727 So. 2d at 1007. Because Davis does not allege the existence
of an agency relationship, her claims fail.
5. Statement of Unknown Origin
Finally, Davis alleges Boston Scientific represented its Greenfield Filters had been
adequately tested in clinical trials and found to be safe and effective for long term
implantation. (Doc. 36 at ¶ 182). But this allegation also fails under Rule 9(b) for multiple
reasons. First, Davis does not cite the specific statement made by Boston Scientific.
Second, she does not allege how Boston Scientific made the allegation. And third, Davis
does not allege when Boston Scientific made the allegation. In other words, Davis failed
to include even the most basic information about the representation. Rule 9(b) requires
more. Ziemba, 256 F.3d at 1202. Thus, Count V will be dismissed.
B.
Fraudulent Concealment
Count VI alleges Boston Scientific fraudulently concealed material information
about the Greenfield Filter’s safety. Fraudulent concealment is similar to fraudulent
misrepresentation except that the defendant conceals facts instead of misrepresenting
them. Kish v. A.W. Chesterton Co., 930 So. 2d 704, 707 (Fla. 3d DCA 2006). Like
fraudulent misrepresentation claims, fraudulent concealment claims are subject to the
heightened pleading requirements of Rule 9(b). Grills v. Philip Morris USA, Inc., 645 F.
Supp. 2d 1107, 1123 (M.D. Fla. 2009). Boston Scientific argues Count VI fails to state a
12
viable claim. The Court agrees.
Despite being dismissed as inadequate on a previous occasion, Davis has
changed remarkably little about Count VI. She alleges Boston Scientific “had sole access
to material facts concerning the defective nature of the [Greenfield Filter], and its
propensity to cause serious and dangerous side effects.” (Doc. 36 at ¶ 201). And that
Boston Scientific used this exclusivity of control to conceal a range of information
including “the risks of adverse events with the Greenfield Filters,” that the “Greenfield
Filters were not safe”, and “that the Greenfield Filter was manufactured negligently.”
(Doc. 36 at ¶ 199(a)-(j)). These allegations fail for two main reasons. First, whether a
product is safe is an opinion. Similarly, whether a product was manufactured negligently
is a legal conclusion. Because fraudulent concealment only applies to suppressed facts,
rather than opinions or legal conclusions, the allegations are wanting.
Second, Davis does not allege a single fact that was specifically concealed by
Boston Scientific. To avoid this glaring insufficiency, she again argues Hill allows her to
plead at a lower standard of particularity because Boston Scientific has factual knowledge
that is peculiarly within its knowledge or control. But Davis does not cite any specific
information exclusively possessed by Boston Scientific or provide any specific facts to
show that such information was concealed. Therefore, her claims are subject to Rule
9(b). See Bray, 2007 WL 3457585, at *3. Because she does not cite any specific
materials that would substantiate her claims, Count VI must be dismissed.
C.
Negligent Misrepresentation
Count VII alleges Boston Scientific negligently misrepresented that the Greenfield
Filter was safe and effective. To establish negligent misrepresentation in Florida, a
13
plaintiff must allege
(1) [a] misrepresentation of material fact; (2) the representor .
. . ma[d]e the representation without knowledge as to its truth
or falsity, or . . . under circumstances in which he ought to
have known of its falsity; (3) the representor . . . intend[ed] that
the misrepresentation induce another to act on it; (4) injury
must result to the party acting in justifiable reliance on the
misrepresentation.
Souran v. Travelers Ins. Co., 982 F.2d 1497 (11th Cir.1993) (quoting Hoon v. Pate Constr.
Co., Inc., 607 So.2d 423, 427 (Fla. 4th DCA1992)). Boston Scientific argues that Count
VII claim should be dismissed with prejudice because Davis has failed to plead a plausible
claim after three opportunities. The Court agrees.
Negligent misrepresentation claims must meet Rule 9(b)’s heightened pleading
threshold. Lamm v. State St. Bank & Tr., 749 F.3d 938, 951 (11th Cir. 2014). Count VII
relies on the same alleged misrepresentations alleged in Count V. The outcome will be
the same as well. Because none of the statements allegedly made in Count VII can viably
support a negligent misrepresentation claim, Count VII will be dismissed.
D.
Dismissal With Prejudice
In general, a district court's discretion to dismiss a complaint without leave to
amend is subject to the directives of Rule 15(a)(2), which states that “[t]he court should
freely give leave when justice so requires.” “A district court need not, however, allow an
amendment (1) where there has been . . . [a] repeated failure to cure deficiencies by
amendments previously allowed; (2) where allowing amendment would cause undue
prejudice to the opposing party; or (3) where amendment would be futile.” Bryant v.
Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001).
Here, Davis has received three
opportunities to plead her claims viably. Yet she has failed to cure her deficiencies. As
14
such, Counts V, VI, and VII will be dismissed with prejudice.
Accordingly, it is now
ORDERED:
1. Boston Scientific's Motion to Dismiss (Doc. 37) is GRANTED.
2. Counts V, VI, and VII are DISMISSED with prejudice.
DONE and ORDERED in Fort Myers, Florida this 28th day of June, 2018.
Copies: All Parties of Record
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