ANDREWS et al v. RAM MEDICAL INC et al
ORDER granting 22 Motion for Judgment on the Pleadings. Ordered by Judge Hugh Lawson on 4/19/2012. (nbp)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
SHAWN ANDREWS and CONSTANT
Civil Action No. 7:11-CV-147 (HL)
RAM MEDICAL, INC., MEDLINE
INDUSTRIES, INC., C.R. BARD, INC., and
Before the Court is Defendant Medline Industries, Inc.’s (“Medline”) Motion
for Judgment on the Pleadings. For the reasons stated more fully below, the
Motion is granted.
This case arises out of the alleged sale and surgical implantation of
counterfeit surgical mesh. Plaintiffs Shawn Andrews and Constant Andrews
allege that between 2008 and 2009, Defendant RAM Medical, Inc. (“RAM
Medical”), a distributor of medical products, acquired surgical mesh that was
believed to be authentic Bard mesh, but was actually a counterfeit product
manufactured in India. Plaintiffs allege that RAM Medical distributed this product
to Medline, another distributor of medical products. Medline then provided the
mesh to South Georgia Surgical Clinic, a medical facility in Tifton, Georgia. Mrs.
Andrews, who was a patient at the Clinic, underwent a hernia repair in October
2009. Plaintiffs contend that during this procedure, the counterfeit product was
implanted in Mrs. Andrews’ abdomen and, as a result, she has suffered
numerous complications and health problems.
Plaintiffs have alleged eleven causes of action against Defendants in the
Complaint. Against Defendants RAM Medical and Medline, Plaintiffs assert
claims for negligence, failure to warn, and post-sale failure to warn. Plaintiffs
assert claims against Medline alone for breach of express warranty and breach
of implied warranty. Against Defendants C.R. Bard, Inc. (“C.R. Bard”) and Davol,
Inc. (“Davol”),1 Plaintiffs assert claims for negligence, failure to warn, post-sale
failure to warn, strict liability, and strict liability failure to warn. Plaintiffs have also
asserted a claim against all four Defendants for loss of consortium as to Mr.
Defendant Medline filed this Motion for Judgment on the Pleadings in
regards to the two breach of warranty claims that Plaintiffs have filed against it.
“Judgment on the pleadings under Rule 12(c) is appropriate when there
are no material facts in dispute, and judgment may be rendered by considering
the substance of the pleadings and any judicially noticed facts.” Horsely v.
Rivera, 292 F.3d 695, 700 (11th Cir. 2002) (citation omitted). “If upon reviewing
Defendants C.R. Bard, Inc. and Davol, Inc. are both manufacturers of
medical products, including surgical mesh. Davol is a subsidiary of C.R. Bard.
the pleadings it is clear that the plaintiff would not be entitled to relief under any
set of facts that could be proved consistent with the allegations, the court should
dismiss the complaint.” Id. (citation omitted).
As a threshold issue, the Court must address the question of the
appropriate law to apply in this case. Medline argues that the law of Georgia
should apply, while Plaintiffs argue that the choice of law cannot be determined
at this early juncture in the case. In a diversity case, a federal court must apply
the choice of law rules of the state in which it sits. See Klaxon Co. v. Stentor
Elec. Mfg. Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 1021 (1941). Thus, the Court
in this case will apply Georgia choice of law rules.
Georgia choice of law rules are unclear as to whether a claim for breach of
warranty should be treated under tort or contract. Carrier v. Jordaan, 746 F.
Supp. 2d 1341, 1349 n. 3 (S.D. Ga. 2010). The determination is important
because under Georgia law “tort actions are adjudicated according to the law of
the place where the wrong occurred, and contract actions are regulated by the
law of the state where the contract was made when matters of execution,
interpretation, or validity are at issue, and by the law of the state where it is to be
performed when the issue is one concerning performance.” Id. at 1349 (citing
Wallace v. Harrison, 166 Ga. App. 461, 304 S.E.2d 487, 489 (1983)).
Without any clear precedent on the issue, there is no consistent approach
to determining how warranty claims should be interpreted. See Whitaker v.
Harvell-Kilgore Corp., 424 F.2d 549, 550-51 (5th Cir. 1970).2 There is some
authority that supports applying a tort theory to warranty claims involving a
physical injury. Morgan v. Mar-Bel, Inc., 614 F. Supp. 438, 442 (D.C. Ga. 1985)
(recognizing the contractual nature of a warranty claim, but determining that “a
breach of warranty involving an injury is analogous to a tort action”). Even in the
absence of a physical injury, there are some courts that have applied a tort
theory to breach of warranty actions. See Goody’s Family Clothing, Inc. v.
Central Sprinkler Co., 2004 WL 5520708 at *4 (N.D. Ga. 2004) (applying tort
theory to Georgia choice of law rules for a breach of warranty claim when fire
sprinkler heads malfunctioned); Best Canvas Products & Supplies, Inc. v. Ploof
Truck Lines, Inc., 713 F.2d 618, 620 (C.A. Ga. 1983) (interpreting a breach of
warranty claim under the tort theory for purposes of determining the choice of law
in Georgia in a case where tarpaulins were defective). However, there are also
cases in which Georgia courts apply a contract theory to a breach of warranty to
determine the choice of law. See Carrier, 746 F. Supp. 2d at 1349 (applying a
contract theory to a breach of warranty claim because of the existence of a
contract of sale).
With no bright line rule, the Court must make this determination based on
the facts of the case. In this case, Plaintiffs’ claims are based on injuries
sustained as a result of the use of defective surgical mesh in a hernia repair. This
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc), the Eleventh Circuit adopted as binding precedent all decisions of the
former Fifth Circuit handed down prior to September 30, 1981.
injury sounds in tort, and thus, a tort theory will apply to determine the applicable
choice of law rules.
In Georgia, the choice of law rule for tort claims is generally lex loci delicti,
or “place of injury.” Dowis v. Mud Slingers, Inc., 279 Ga. 808, 808, 621 S.E.2d
413, 414 (Ga. 2005). According to this doctrine, the substantive law to be applied
is that of the place where the wrong occurred. Bailey v. Cottrell, Inc., 313 Ga.
App. 371, 371, 721 S.E.2d 571, 573 (Ga. App. 2011). In this case, Ms. Andrews
underwent surgery at the South Georgia Surgical Clinic in Tifton, Georgia. Thus,
the place where her injury occurred was in Georgia, and according to lex loci
delicti, the law of Georgia shall apply in this case.
Under Georgia law, to recover for a breach of warranty, a plaintiff must
show privity between himself and the defendant. In re Mentor Corp. ObTape
Transobturator Sling Products Liability Litigation, 711 F. Supp. 2d 1348, 1366
(M.D. Ga. 2010); see also Bodymasters Sports Indus., Inc. v. Wimberley, 501
S.E.2d 556, 561 (Ga. Ct. App. 1998). “[I]f a defendant is not the seller to the
plaintiff-purchaser, the plaintiff as the ultimate purchaser cannot recover on the
implied or express warranty, if any, arising out of the prior sale by the defendant
to the original purchaser, such as the distributor or retailer from whom plaintiff
purchased the product.” Lamb v. Georgia-Pacific Corp., 194 Ga. App. 848, 850,
392 S.E.2d 307, 309 (Ga. App. 1990). In Gowen v. Cady, 189 Ga. App. 473, 376
S.E.2d 390 (Ga. App. 1988), the Georgia Court of Appeals held that no privity
existed between a patient at a hospital and the manufacturer of medical devices
used to treat the plaintiff. In that case, the lack of privity was fatal to the plaintiff’s
claims for breach of express and implied warranties. Id. at 476, 376 S.E.2d at
In this case, like in Gowen, Plaintiffs cannot establish privity with Medline
because the surgical mesh was not sold directly to Plaintiffs. Therefore, any
claims for breach of express or implied warranty must fail under Georgia law.
Based on the tortious nature of the facts alleged by Plaintiffs, Georgia law
applies in this case based on principle of lex loci deliciti. Plaintiffs are unable to
demonstrate privity with Medline, and according to Georgia law, this lack of
privity is fatal to Plaintiff’s claims for breach of express and implied warranties.
Therefore, Counts IV and V of the Complaint are dismissed.
SO ORDERED, this 19th day of April, 2012.
s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE
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