Hamblen et al v. Davol, Inc. et al

Filing 52

ORDER: Plaintiffs Barbara Hamblen and Herbert Hamblen's Motion to Strike Defendants' Affirmative Defenses (Doc. # 32 ) is DENIED. Signed by Judge Virginia M. Hernandez Covington on 3/27/2018. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BARBARA HAMBLEN and HERBERT
HAMBLEN,
Plaintiffs,
v.

Case No.: 8:17-cv-1613-T-33TGW

DAVOL, INC. and C.R. BARD,
INC.,
Defendants.
______________________________/
ORDER
This

matter

comes

before

the

Court

pursuant

to

Plaintiffs Barbara Hamblen and Herbert Hamblen’s Motion to
Strike Defendants’ Affirmative Defenses (Doc. # 32), filed on
January 19, 2018. Defendants Davol, Inc. and C.R. Bard, Inc.
responded on February 2, 208. (Doc. # 37). For the reasons
that follow, the Motion is denied.
I.

Background
On December 14, 2005, Barbara Hamblen was implanted with

Defendants’ hernia repair patch. (Doc. # 15 at ¶ 42). Ms.
Hamblen claims the patch was defective and caused her various
injuries, including “years of severe abdominal pain.” (Id. at
¶ 67). Ms. Hamblen underwent an operation on July 10, 2013,
to remove the patch. (Id. at ¶ 68).

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Ms. Hamblen, together

with her husband, Herbert, initiated this personal injury
action on July 3, 2017. (Doc. # 1). The Hamblens filed an
Amended

Complaint

on

September

26,

2017,

asserting

the

following claims: negligence (count 1); strict liability
(count

2);

failure

to

warn

(count

3);

negligent

misrepresentation (count 4); fraud (count 5); and loss of
consortium (count 6). (Doc. # 15).

The Amended Complaint,

spanning 46 pages, is set forth in exacting detail.

It

describes with particularity the alleged defects in the patch
(such

as

plastic

ring

breaking,

mesh

migration,

mesh

oxidation, improper welding, and inadequate instructions for
use), as well as FDA activity, such as product recalls
applicable to the patch.
Defendants filed an Answer and Defenses to the Amended
Complaint on December 28, 2017 (Doc. # 27), and then on
January 18, 2018, filed an Amended Answer and Defenses to the
Amended Complaint. (Doc. # 31). The defenses asserted follow:
the Amended Complaint fails to state a claim (Defense 1); the
doctrines stated in Restatement (Second) of Torts § 402(a),
Comment K, bar the claims (Defense 2); the doctrines stated
in Restatement (Third) of Torts, Product Liability §§ 4, 6
bar the claims (Defense 3); comparative negligence (Defense
4); spoliation of evidence and failure to preserve evidence

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(Defense 5); assumption of risk (Defense 6); the benefits of
the product outweigh the risks (Defense 7); the learned
intermediary doctrine (Defense 8); the product was designed,
manufactured, marketed and labeled in accordance with state
of the art knowledge (Defense 9); Plaintiffs’ injuries were
caused by independent, intervening causes, such as diseases
and other causes (Defense 10); Plaintiffs’ injuries were
caused

by

(Defense

Barbara

11);

Hamblen’s

failure

to

own

mitigate

idiosyncratic
damages

reactions

(Defense

12);

contribution, indemnity, or similar doctrines (Defense 13);
Defendants are entitled to a credit to the extent Plaintiffs
have made a money settlement with any other entity (Defense
14); Plaintiffs’ damages were caused by misuse or abnormal
use of the product or failure to follow instructions (Defense
15); Plaintiffs’ claims are preempted by applicable federal
law

(Defense

16);

fraudulent

joinder

and

misjoinder

of

parties and/or claims (Defense 17); statutes of limitations,
statutes of repose, estoppel, waiver, and laches (Defense
18); the product complied with government safety standards
(Defense 19); to the extent the product was altered after it
left the manufacturers’ control, such alteration was the
legal cause of Plaintiffs’ injuries (Defense 20); Plaintiffs’
damages are barred by the written and express limitation on

3

remedies (Defense 21); abstention doctrine “in that common
law gives defense to discretionary actions by the United
States Food and Drug Administration under the Federal Food,
Drug, and Cosmetic Act” (Defense 22); failure to exhaust
administrative remedies (Defense 23); providing for liability
without proof of causation violates the Federal and the State
Constitution

(Defense

24);

punitive

damages

are

unconstitutional (Defense 25); punitive damages based on
anything less than clear and convincing evidence violate the
Due Process Clause of the Fourteenth Amendment to the United
States Constitution (Defense 26); no act or omission of
Defendants was malicious, willful, wanton, reckless, grossly
negligent and therefore punitive damages are barred (Defense
27); and Plaintiffs fail to allege facts or state a cause of
action against Defendants sufficient to support a claim for
attorneys’ fees and costs (Defense 28).
The Hamblens seek an Order striking each of Defendants
28 defenses.

The Motion to Strike is ripe for review and is

denied consistent with the following.
II.

Analysis
Plaintiffs argue that each and every one of the 28

defenses

should

“comprise[d]

of

be
no

stricken
more

than

4

because
bare

such

defenses

bones

are

conclusory

allegations.” (Doc. # 32 at 3).

Without elaborating on the

elements of any asserted defense and without making specific
arguments about why any defense is inapplicable to the facts
presented, Plaintiffs seek an order striking the defenses
because they are “boilerplate.” (Id. at 7).
As an example, Plaintiffs argue that Defendants’ sixth
defense, concerning assumption of risk, “should be stricken
as Legally Insufficient and Invalid as a Matter of Law”
because “Defendants have not set forth a short and plain
statement of the affirmative defense and sufficient facts to
support it. This defense is nothing more than a bare bones
conclusory allegation and should be stricken.” (Doc. # 32 at
11)(citations omitted).
that

Defendants

accompanying
defenses.

have

factual

The Court agrees with Plaintiffs

merely

listed

allegations

the
in

defenses

support

of

without
those

However, that is precisely what the Federal Rules

of Civil Procedure require, and the Court does not hold
defenses to the same standard as the claims set forth in a
complaint.
“Affirmative

defenses

are

subject

to

the

general

pleading requirements of Federal Rule of Civil Procedure 8.” 
Carrero v. Citimortgage, Inc., No. 8:15-cv-2915-T-33EAJ, 2016
WL 1464108, at *2 (M.D. Fla. Apr. 14, 2016). Rule 8(b)(1)(A)

5

requires that a party “state in short and plain terms its
defenses to each claim asserted against it.” Fed. R. Civ. P.
8(b)(1)(A). District courts in this Circuit are divided as to
whether the pleading requirements of Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S.
662 (2009), apply to affirmative defenses, and the Eleventh
Circuit has not spoken on the issue. See Moore v. R. Craig
Hemphill

&

Assocs.,

2527162,

at

*2

(M.D.

No.
Fla.

3:13-cv-900-J-39-PDB,
May

6,

2014

2014)(discussing

WL
the

disagreement between district courts in this Circuit and
describing

the

application

of

the

Twombly

standard

to

affirmative defenses as the “minority approach”).
“Cases holding that the heightened standard of pleading
does not apply to affirmative defenses note the difference
between Rule 8(a), which deals with the pleading requirements
for complaints, and Rules 8(b) and (c), which deal with the
pleading requirements for defenses.” Gonzalez v. Midland
Credit Mgmt., Inc., No. 6:13-cv-1576-Orl-37, 2013 WL 5970721,
at *3 (M.D. Fla. Nov. 8, 2013). “While Rule 8(a)(2) requires
a pleading stating a claim for relief to include ‘a short and
plain statement of the claim showing that the pleader is
entitled to relief,’ Rules 8(b) and 8(c) only require parties
to state their defenses.” Id. But Twombly and Iqbal only

6

addressed the language of Rule 8(a), and “the Supreme Court
has not extended the Twombly and Iqbal standard to affirmative
defenses.” Id.
Therefore, “this Court finds persuasive the logic of
those district courts in the Eleventh Circuit that have found
that affirmative defenses should not be held to the Twombly
pleading

standard.”

Nobles

v.

Convergent

Healthcare

Recoveries, Inc., No. 8:15-cv-1745-T-30MAP, 2015 WL 5098877,
at *2 (M.D. Fla. Aug. 31, 2015).
defenses

to

the

strictures

of

The Court does not hold
Twombly

and

Plaintiffs’

arguments based upon Twombly and its progeny are roundly
rejected. In taking this stance, the Court finds itself in
the majority position of federal courts on the issue.
this

determination

is

consistent

with

numerous

And

opinions

issued by district courts within the Middle District of
Florida. See, e.g., Adams v. JP Morgan Chase Bank, N.A., No.
3:11-cv-337-J-37MCR, 2011 WL 2938467, at 2-3 (M.D. Fla. July
21, 2011); Blanc v. Safetouch, Inc., No. 3:07-cv-1200-J25TEM, 2008 WL 4059786, at *1 (M.D. Fla. Aug. 27, 2008); Jirau
v.

Camden

Dev.,

Inc.,

No.

8:11-cv-73-T-33MAP,

2011

WL

2981818, at *2 (M.D. Fla. July 22, 2011); Lawton-Davis v.
State Farm Mut. Auto. Ins. Co., No. 6:14-cv-1157-Orl-37GJK,
2015 WL 12839263, at *1 (M.D. Fla. Aug. 19, 2015)(collecting

7

cases

holding

that

Twombly

and

Iqbal

do

not

apply

to

defenses).
Affirmative defenses challenged by a motion to strike
are also evaluated against the touchstone of Rule 12(f), which
provides

that

insufficient

a

“court

defense

may
or

strike
any

from

a

redundant,

pleading

an

immaterial,

impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f).
Although the Court has broad discretion in ruling on a motion
to strike, such motions are disfavored due to their “drastic
nature.” Royal Ins. Co. of Am. v. M/Y Anastasia, No. 95-cv30498, 1997 WL 608722, at *3 (N.D. Fla. Jan. 30, 1997).
Thus, “[a]n affirmative defense will only be stricken .
. . if the defense is ‘insufficient as a matter of law.’”
Microsoft Corp. v. Jesse’s Computers & Repair, Inc., 211
F.R.D.

681,

683

(M.D.

Fla.

2002)(citation

omitted).

An

affirmative “defense is insufficient as a matter of law only
if:

(1)

on

the

face

of

the

pleadings,

it

is

patently

frivolous, or (2) it is clearly invalid as a matter of law.”
Id. “To the extent that a defense puts into issue relevant
and

substantial

legal

and

factual

questions,

it

is

‘sufficient’ and may survive a motion to strike, particularly
when there is no showing of prejudice to the movant.” Reyher
v. Trans World Airlines, Inc., 881 F. Supp. 574, 576 (M.D.

8

Fla.

1995)(citation

omitted).

Plaintiffs

have

not

demonstrated any reason why the Court should strike any
defense

under

Rule

12(f)

impertinent, or scandalous.

as

redundant,

immaterial,

Nor have Plaintiffs shown any

defense to be frivolous or invalid as a matter of law.

The

Motion to Strike is therefore denied.
The Court also notes that any defenses that are not true
affirmative defenses and are, instead, mere denials are not
subject to being stricken.

These denials put Plaintiffs on

notice of the issues that Defendants intent to pursue as the
case moves forward. See Dunning v. Tang Thuyen, No. 8:11-cv2340-T-33TGW, 2012 WL 882549, at *2 (M.D. Fla. Mar. 15,
2012)(“To the extent that any of the affirmative defenses are
merely statements of law or legal conclusions as argued by
Plaintiff, they still serve the laudable purpose of placing
Plaintiff and the Court on notice of certain issues Defendant
intends to assert against Plaintiff’s claims.” (citation
omitted)). The Court agrees with Defendants and declines to
strike any defenses on the basis that they are not true
defenses. See Hassan v. U.S. Postal Serv., 842 F.2d 260, 263
(11th Cir. 1998)(“The purpose of Rule 8(c) is simply to
guarantee that the opposing party has notice of any additional

9

issue that may be raised at trial so that he or she is prepared
to properly litigate it.”).
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Plaintiffs Barbara Hamblen and Herbert Hamblen’s Motion
to Strike Defendants’ Affirmative Defenses (Doc. # 32) is
DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
27th day of March, 2018.

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