Parker v. Howmedica Osteonics Corporation et al

Filing 25

ORDER denying 4 Motion to Dismiss; granting 4 Motion for More Definite Statement; denying 6 Motion to Dismiss; granting 20 Motion to Consolidate Cases in case 4:12-cv-00026-CDL; granting 26 Motion to Consolidate Cases in case 4:12-cv-00049-CDL. Ordered by Judge Clay D. Land on 05/03/2012. (CGC)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
BARBARA PARKER,

*

Plaintiff,

*

vs.

*

HOWMEDICA OSTEONICS
CORPORATION, et al.,

*

CASE NO. 4:12-CV-26 (CDL)

*
Defendants.
*
BARBARA PARKER,

*

Plaintiff,

*

vs.

*

HOWMEDICA OSTEONICS
CORPORATION,

*

CASE NO. 4:12-CV-49 (CDL)

*
Defendant.
*
O R D E R
In

these

product

liability

actions,

Plaintiff

Barbara

Parker (“Parker”) alleges that she suffered injuries after two
knee

revision

surgeries

on

her

right

knee.

First,

Parker

alleges that she suffered injuries following a November 2007
“right

knee

fusion

surgery.”

Parker

v.

Howmedica

Osteonics

Corp., No. 4:12-cv-49 (“Parker I”), 3d Am. Compl. ¶¶ 418, ECF
No.

19.

Parker

alleges

that

Howmedica

manufactured

the

replacement knee device she received during that surgery and
that the device failed, causing her injuries.

Id. ¶¶ 9-18.

Next, Parker alleges that she suffered injuries following a June
2009 “total knee re-revision surgery,” that the injuries were
caused by “defective hardware” implanted in her right knee, and
that

one

of

three

defective hardware.

Defendants

manufactured

the

allegedly

Parker v. Howmedica Osteonics Corp., No.

4:12-cv-26 (“Parker II”), Notice of Removal Ex. A, Compl. ¶¶ 13,
17-18, 22, 34, 47, ECF No. 1-2 [hereinafter Parker II Compl.].
Defendants

Smith

&

Nephew,

Inc.

(“Smith

&

Nephew”)

and

Howmedica Osteonics Corp. (“Howmedica”) each filed a Motion to
Dismiss the Complaint in Parker II (ECF Nos. 4 & 6), contending
that Parker’s Complaint does not adequately identify the product
at issue.

In the alternative, Smith & Nephew asks that the

Court require Parker to file a more definite statement of her
claims.

For the reasons set forth below, the Court declines to

dismiss Parker’s claims at this time, but the Court grants Smith
& Nephew’s motion for a more definite statement.
Also before the Court is Howmedica’s Motion to Consolidate
Parker I and Parker II (ECF No. 20 in 4:12-cv-26 and ECF No. 26
in 4:12-cv-49).
concludes

that

As discussed in more detail below, the Court
the

two

actions

should

be

Howmedica’s Motion to Consolidate is granted.

2

consolidated,

so

DISCUSSION
I.

Motions to Dismiss
A.

Motion to Dismiss Standard

When considering a 12(b)(6) motion to dismiss, the Court
must

accept

complaint

as

and

true

all

facts

limit

its

consideration

exhibits attached thereto.

set

forth
to

in

the

the

plaintiff=s

pleadings

and

Bell Atl. Corp. v. Twombly, 550 U.S.

544, 556 (2007); Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949,
959

(11th

Cir.

2009).

“To

survive

a

motion

to

dismiss,

a

complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its
face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (quoting Twombly,

550 U.S. at 570).

The complaint must include sufficient factual

allegations “to raise a right to relief above the speculative
level.”

Twombly, 550 U.S. at 555.

“[A] formulaic recitation of

the elements of a cause of action will not do[.]”

Id.

Although

the complaint must contain factual allegations that “raise a
reasonable expectation that discovery will reveal evidence of”
the

plaintiff=s

claims,

id.

at

556,

“Rule

12(b)(6)

does

not

permit dismissal of a well-pleaded complaint simply because ‘it
strikes

a

savvy

judge

that

actual

proof

of

those

facts

is

improbable,’” Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295
(11th Cir. 2007) (quoting Twombly, 550 U.S. at 556).

3

B.

Factual Allegations

Parker underwent a “right total knee re-revision” surgery
on July 9, 2009 in Columbus, Georgia.

Parker II Compl. ¶ 11.

Within a year of the surgery, Parker underwent two additional
surgeries

due

to

“repeated

hardware

failures”

of

the

knee

replacement prosthetic device that was implanted into her leg.
Id. ¶¶ 13-15.
Defendant

Parker alleges that Howmedica, Smith & Nephew and

Depuy

manufactured,

Orthopaedics,

produced,

Inc.

marketed,

(“Depuy”)
packaged,

“designed,
distributed,

labeled, sold and otherwise placed into the stream of commerce”
the defective knee replacement hardware. 1
alleges

that

hardware

she

alternative,

Howmedica
received
Parker

manufactured

in

alleges

2009.

Id.

that

Depuy

the
¶¶

Id. ¶ 16.
knee
22,

Parker

replacement

24.

manufactured

In
the

replacement hardware she received in 2009.

Id. ¶¶ 34, 36.

the

Smith

alternative,

Parker

alleges

that

&

the
knee
In

Newphew

manufactured the knee replacement hardware she received in 2009.
Id. ¶¶ 47, 49.

Parker asserts products liability claims against

1

Parker also contends that “Defendant ABC Corporation,” “Defendant XYZ
Corporation,” “Defendant John Doe I” and “Defendant John Doe II” are
entities and individuals whose identity is unknown and who also
“designed, manufactured, produced, marketed, packaged, distributed,
labeled, sold and otherwise placed into the stream of commerce” the
defective knee replacement hardware.”
Parker II Compl. ¶¶ 4-7, 16.
“As a general matter, fictitious-party pleading is not permitted in
federal court.”
Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir.
2010) (per curiam).
Should Parker wish to make claims an entity or
individual she has not named in her Complaint, Parker must file an
amended Complaint and name the entity or individual.

4

each

Defendant

under

both

a

strict

liability

theory

and

a

negligence theory.
C.

Discussion

The parties agree that Georgia law governs Parker’s claims.
Under Georgia law, to establish a product liability claim under
a strict liability theory or a negligence theory, a plaintiff
must prove (1) “a defect in the product” and (2) a “causal
connection between the alleged design or manufacturing defect
and [the plaintiff’s] injury.”

Boswell v. OHD Corp., 292 Ga.

App. 234, 235, 664 S.E.2d 262, 263 (2008).
plaintiff

must

identify

the

allegedly

And, of course, the

defective

product

that

caused her injuries and the manufacturer of that product.

Id.

(concluding that because the plaintiff could not identify the
product that allegedly injured him, he could not prevail on his
product

liability

claim);

accord

O.C.G.A. §

51-1-11(b)(1)

(stating that “manufacturer” is liable for defective products
that cause injury); Smith v. Chemtura Corp., 297 Ga. App. 287,
291, 676 S.E.2d 756, 761 (2009) (affirming dismissal of product
liability action where plaintiff did not allege that defendant
manufactured

allegedly

defective

product);

see

also,

e.g.,

Adamson v. General Elec. Co., 303 Ga. App. 741, 745-46, 694
S.E.2d 363, 368 (2010) (affirming summary judgment in favor of a
manufacturer where there was no evidence that the plaintiff used

5

the

manufacturer’s

asbestos-containing

product

that

allegedly

caused his injuries).
Here,

Parker

replacement

has

product

that

not

identified

was

implanted

the
in

specific

her

leg

in

knee
2009.

Parker does not claim that the identity of the product could not
be ascertained from a review of all of her medical records. 2
Even if her medical records do not readily reveal the identity
of

the

product,

it

has

not

been

established

that

limited

discovery from Defendants would fail to disclose the identity of
the knee replacement device that was implanted in Parker’s leg.
Rather, Parker contends that she cannot, at this time, “readily
identify

which

of

the

named

Defendants

manufactured”

hardware based on “the medical records obtained to date.”

the
Mem.

in Supp. of Pl.’s Resp. to Smith & Nephew’s Mot. to Dismiss 1,
ECF

No.

Parker

13-1.
has

not

Therefore,
yet

the

obtained

a

present
copy

of

record

suggests

all

her

of

that

medical

records, which may include a more precise description of the
knee replacement product that was implanted during Parker’s July
2009 surgery.
2

Though Parker summarily alleges that Howmedica, Depuy and Smith &
Nephew “are joint tortfeasors,” Parker II Compl. ¶ 8, there is no
allegation that Howmedica, Depuy and Smith & Nephew worked in concert
to develop the knee replacement hardware Parker received; rather,
Parker appears to assert that each of these three Defendants designed
manufactured different knee replacement devices and that she received
knee replacement hardware designed and manufactured by one of them.
See id. ¶¶ 24, 36, 49 (alleging, in the alternative, that each of the
three named Defendants designed and manufactured Parker’s knee
replacement hardware).

6

Though Parker’s Complaint is deficient because it fails to
identify the product that allegedly caused her injuries, the
Court declines to dismiss Parker’s Complaint at this time.

The

Court finds that the more appropriate course is to grant Smith &
Nephew’s motion for a more definite statement.

Under Federal

Rule of Civil Procedure 12(e), a “party may move for a more
definite statement of a pleading to which a responsive pleading
is allowed but which is so vague or ambiguous that the party
cannot reasonably prepare a response.”

Here, Parker’s Complaint

is so vague and ambiguous that none of the three Defendants can
tell

whether

one

Parker’s injuries.
Complaint

to

of

its

products

is

the

alleged

cause

of

The Court will permit Parker to amend her

identify

the

product

that

allegedly

injuries, as well as the product’s manufacturer.

caused

her

Because it is

within Parker’s power to obtain her own medical records, the
Court

declines

to

permit

the

action

to

proceed

until

Parker

identifies the specific product which she contends caused her
harm.

Parker’s amended complaint shall be filed within thirty

(30) days of the date of this Order.
Should Parker determine that it is impossible for her to
identify the knee replacement product that was implanted in her
leg without limited discovery from Defendants, Parker shall file
a written motion notifying the Court on or before the deadline
for

her

amended

complaint.

In

7

that

motion,

Parker

shall

precisely
purpose

describe
of

Defendants
requested

the

limited

identifying
shall

discovery

discovery.

allegedly

14

days

to

If

have

the

no

she

file

for

defective
any

objection

seeks

is

product.

objection
made,

the

to

the

the

parties

shall, within 21 days of the date that Parker files her motion,
present the Court with a jointly proposed scheduling/discovery
order limited to discovery regarding the identification of the
allegedly defective product.
II.

Motion to Consolidate
A.

Motion to Consolidate Standard

Under Federal Rule of Civil Procedure 42(a), if the Court
finds

that

two

actions

before

the

Court

“involve

a

common

question of law or fact,” then the Court may: “(1) join for
hearing or trial any or all matters at issue in the actions; (2)
consolidate the actions; or (3) issue any other orders to avoid
unnecessary cost or delay.”

Fed. R. Civ. P. 42(a).

The Rule

“is permissive and vests a purely discretionary power in the
district court.”
1168

(11th

Young v. City of Augusta, Ga., 59 F.3d 1160,

Cir.

1995)

(internal

quotation

marks

omitted).

District court judges “have been urged to make good use of Rule
42(a)

. . .

in

order

to

expedite

the

unnecessary repetition and confusion.”
1995)

(alteration

in

original)

omitted).

8

trial

and

eliminate

Id. at 1169 (11th Cir.

(internal

quotation

marks

B.

Discussion

Parker I and Parker II arise from separate knee replacement
surgeries performed by different doctors on one patient’s right
knee.
both

Though it is not clear from the present record whether
actions

involve

manufacturer,

it

is

products
clear

designed

that

Parker

and
I

made

and

by

the
II

Parker

same
have

significant common questions of law and fact.

The two actions

involve the same patient and the same knee.

Common questions

include Parker’s physical condition and general health before
and

after

each

surgery.

Moreover,

it

cannot

be

seriously

disputed that there is significant overlap with regard to the
issues of causation and damages in both actions.

Accordingly,

the Court concludes that consolidation of the two actions is
warranted.

Given that minimal or no discovery has occurred in

both cases, consolidation will not prejudice any of the parties.
If

discovery

would

result

consider

a

reveals
in

that

prejudice

motion

to

trial
or

of

the

confusion,

separate

the

consolidated
then

the

consolidated

actions

Court

will

actions

for

trial.
CONCLUSION
For the reasons set forth above, the Motions to Dismiss of
Smith & Nephew (ECF No. 4) and Howmedica Osteonics Corp. (ECF
No. 6) are denied.

Smith & Nephew’s motion for more definite

statement is granted, and Parker’s amended complaint shall be

9

filed

within

thirty

(30)

days

of

the

date

of

this

Order.

Howmedica’s Motion to Consolidate (ECF No. 20 in 4:12-cv-26 and
ECF No. 26 in 4:12-cv-49) is granted.

Henceforth, the parties

shall file all filings in Case No. 4:12-cv-26.
The

Court

previously

stayed

the

deadline

for

compliance

with its Rules 16/26 Order in both Parker I and Parker II.

If

Parker is able to identify the product and its manufacturer in
her

amended

lifted, and

complaint,
the

the

parties

stay

shall

previously

comply

with

entered
the

shall

Court’s

be

Rules

16/26 Order within twenty-eight (28) days of the date that the
amended complaint is filed.

If Parker is unable to amend her

complaint without engaging in limited discovery, then the stay
regarding the Court’s Rules 16/26 Order shall remain in effect,
except

the

parties

Order

regarding

shall

the

comply

limited

with

the

discovery

to

provisions
be

in

conducted

this
to

identify the allegedly defective product.

IT IS SO ORDERED, this 3rd day of May, 2012.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

10