Lonon v. Globus Medical, Inc.

Filing 17

ORDER granting 10 Motion to Dismiss. Signed by Judge William T. Moore, Jr on 3/18/14. (bcw)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

ANTHONY LONON,
Plaintiff,
)

CASE NO. CV413-115

Defendant.)

N

V.

GLOBUS MEDICAL, INC

ORDER

Before the Court is Defendant Globus Medical, nc.'s.
Motion to Dismiss. (Doc. 10.) For the following reasons,
Defendant's motion is GRANTED and Plaintiff's complaint is
DISMISSED. Should Plaintiff desire, he SHALL have twentyone days

from the date of this order to file an amended

complaint.
BACKGROUND

This case involves injuries Plaintiff suffered
following back surgery. ' On April 22, 2009, Plaintiff had
eight pedicle screws implanted into his spine as part of a
surgical procedure. (Doc. 1, Ex. 1

¶j 7-8.) Defendant

manufactured the pedicle screws used in Plaintiff's
1

For the purposes of ruling on Defendants' Motion to
Dismiss, the Court views the complaint in the light most
favorable to Plaintiff and accepts as true all of
Plaintiff's well-pled facts. Am. United Life Ins. Co. v.
Marinez, 480 F.3d 1043, 1057 (11th Cir. 2007)

procedure.

In June of 2011, Plaintiff began

(Id. ¶ 9.)

experiencing pain and tightness in his back. (Id. ¶ 10.)
After a July 28, 2011 visit to his doctor, Plaintiff
learned that the heads of two screws implanted in his back
had fractured. (Id.

¶j 11-12.) On November 11, 2011,

Plaintiff underwent surgery to remove and replace the
screws. (Id. ¶ 13.) However, the surgeon was unable to
remove one of the fractured screws due to the risk of
damaging Plaintiff's vertebrae. (Id. ¶ 14.) As a result,
Plaintiff suffers from chronic back pain, rendering him
disabled. (Id. ¶ 15-16.)
On March 29, 2013, Plaintiff filed suit in the State
Court of Chatham County.

In his complaint, Plaintiff

brings one count of negligence.

Plaintiff alleges that

"Defendant has a duty to supply Plaintiff with a screw that
was correctly manufactured and would not fracture;"
"Defendant had a duty to insure that the pedicle screws
would not cause injury to Plaintiff after they were
implanted;" and "Defendant breached his duty to Plaintiff
to provide Plaintiff with a pedicle screw that would not
fracture." (Id.

¶j 18-20.) Plaintiff contends that "[a]s

a direct and proximate result of Defendants' [sic]
negligence, Plaintiff suffered injuries to his spine from
the fractured pedicle screws." (Id. ¶ 21.)

On May 6, 2013, Defendant removed the case to this
Court. (Doc. 1.) Subsequently, Defendant filed a Motion
to Dismiss, arguing that Plaintiff's factual allegations
are insufficient to establish a claim for negligence.
(Doc. 10 at 4-7.) In his response, Plaintiff contends that
he has sufficiently pled a claim for both defective design
and defective manufacture, stating that "[t]he simple fact
that two of the eight pedicle screws that were implanted
into Plaintiff's vertebrae fractured is enough factual
matter to suggest that there was a defect in the
manufacture of the screws." (Doc. 11 at 7.)
ANALYSIS

Federal Rule of Civil Procedure 8(a) (2) requires a
complaint to contain "a short and plain statement of the
claim showing that the pleader is entitled to relief."
"[TI he pleading standard Rule 8 announces does not require
'detailed factual allegations,' but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Ati. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

2

2

"A

Iqbal makes clear that Twombly has been the controlling
standard on the interpretation of Federal Rule of Civil
Procedure 8 in all cases since it was decided. Iqbal, 556
U.S. at 684 ("Though Twombly determined the sufficiency of
a complaint sounding in antitrust, the decision was based
on our interpretation and application of Rule 8 . .
[that] in turn governs the pleading standard in all civil
3

pleading that offers 'labels and

conclusions'

or a

'formulaic recitation of the elements of a cause of action
will not do.' " Id. (quoting Twombly, 550 U.S. at 555).
"Nor does a complaint suffice if it tenders 'naked
assertion[s] ' devoid of 'further factual enhancement.'

11

Id. (quoting Twombly, 550 U.S. at 557) (alteration in
original)
"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.'
Id. (quoting Twombly, 550 U.S. at 570).

For a claim to

have facial plausibility, the plaintiff must plead factual
content that " 'allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.' "

Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252,

1261 (11th Cir. 2009) (quoting Iqbal, 556 U.S. at 678)
Plausibility does not require probability, "but it asks for
more than a sheer possibility that a defendant has acted
unlawfully."

Iqbal, 556 U.S. at 678.

pleads facts that are

"Where a complaint

'merely consistent with'

a

defendant's liability, it 'stops short of the line between
possibility and plausibility of entitlement to relief.'
Id.

(quoting Twombly, 550 U.S. at 557.)

Additionally, a

actions and proceedings in the United States district
courts." (internal quotations and citations omitted)).
4

complaint is sufficient only if it gives " 'fair notice of
what the . . . claim is and the grounds upon which it
rests.' " Sinaltrainal, 578 F.3d at 1268 (quoting Twombly,
550 U.S. at 555).
When the Court considers a motion to dismiss, it
accepts the well-pleaded facts in the complaint as true.
Sinaltrainal, 578 F.3d 1252 at 1260. However, this Court
is "not bound to accept as true a legal conclusion couched
as a factual allegation." Iqbal, 556 U.S. at 678.
Moreover, "unwarranted deductions of fact in a complaint
are not admitted as true for the purpose of testing the
sufficiency of plaintiff's allegations." Sinaltrainal, 578
F.3d at 1268. That is, "[t]he rule 'does not impose a
probability requirement at the pleading stage,' but instead
simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of the
necessary element." Watts v. Fla. Int'l Univ., 495 F.3d
1289, 1295-96 (11th Cir. 2007) (quoting Twombly, 550 U.S.
at 545)
In this case, Plaintiff's rather spartan complaint
leaves much to be desired. To establish a claim for
negligence under Georgia law, Plaintiff must establish (1)
the existence of a legal duty; (2) that Defendant breached
that duty; (3) a causal connection between Defendant's
5

breach and Plaintiff's injury; and (4) that Plaintiff
suffered damages. Welcher v. Redding Swainsboro Ford
Lincoln Mercury, Inc., 321 Ga. App. 563, 565-66, 743 S.E.2d
27, 30 (2013) (citing Perking v. Kranz, 316 Ga. App. 171,
172, 728 S.E.2d 804 (2012)) . With respect to identifying a
duty owed by Defendant, Plaintiff's allegation that
"Defendant has a duty to supply Plaintiff with a screw that
was correctly manufactured and would not fracture" (Doc. 1,
Ex. 1 ¶ 18) is a simple legal conclusion that lacks any
factual support. There is no specific allegation
concerning how or why Defendant owed this duty to
Plaintiff. As written, it appears that Plaintiff believes
Defendant was obligated to provide him with an
indestructible pedicle screw, which is not a duty
recognized under Georgia law.
Moreover, Plaintiff simply alleges that "Defendant
breached his [sic] duty to Plaintiff to provide Plaintiff
with a pedicle screw that would not fracture." (Id. ¶ 20.)
This contention is, again, merely a legal conclusion.
There are no allegations concerning how the pedicle screws
were even defective, such as being negligently designed or
negligently manufactured. Rather, Plaintiff appears to
rely on the mere fact that they fractured as supporting the

notion that Defendant breached some duty to Plaintiff.
Rule 8 simply requires more.
Plaintiff's own response to Defendant's motion
highlights the insufficiency of his allegations. In his
response, Plaintiff states that "Globus has a duty to
provide correctly manufactured pedicle screws that would
not fracture upon being surgically implanted into
Plaintiff's vertebrae." (Doc. 11 at 7.) It is plain to
even a casual observer that this statement provides more
factual detail explaining what duty Defendant owed to
Plaintiff and why. Also, Plaintiff states in his response
that he "does not merely allege that the product was
defectively designed, but whether the product was defective
in its manufacture."
omitted).)

(Id. at 6 (internal quotations

Yet, Plaintiff's complaint does not state

whether he believes the pedicle screws were defectively
manufactured or defectively designed, or both. Indeed,
Plaintiff never once mentions the word "design" in his
complaint. He simply states that "defendant breached [its]
duty to Plaintiff to provide . . . a pedicle screw that
would not fracture."
The Court notes that these deficiencies should not be
difficult to correct. As noted above, Plaintiff's response
contained statements that would have brought his complaint
7

closer to complying with Rule 8 were they included in that
filing. The problem, of course, is that they were not.
Because the " 'underlying facts or circumstances relied
upon by [Plaintiff] may be a proper subject for relief,'

11

the Court will permit Plaintiff to cure these deficiencies
by amending his complaint pursuant to Federal Rule of Civil
Procedure 15(a) (2). Hall v. United Ins. Co. of Am., 367
F.3d 1255, 1262 (11th Cir. 2004) (quoting Forman v. Favis,
371 U.S. 178, 182 (1962)). Therefore, Plaintiff
twenty-one days

SHALL have

from the date of the order to file an

amended complaint.
CONCLUSION
For the foregoing reasons, Defendant's Motion to
Dismiss (Doc. 10) is
DISMISSED.
one days

GRANTED and Plaintiff's complaint

is

Should Plaintiff desire, he SHALL have twentyfrom the date of this order to file an amended

complaint.
SO ORDERED this

IC

day of March 2014.

WILLIAM T. MOORE JR.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA