Lonon v. Globus Medical, Inc.

Filing 32

ORDER dismissing plaintiff's complaint and the 24 Motion to Dismiss is dismissed as moot. The Plaintiff shall have 21 days from the date of this order to file a second amended complaint. Signed by Judge William T. Moore, Jr on 3/9/15. (bcw)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEOR!IA DSTPCT COURT
Outhrn Olatrlct of Ga.
SAVANNAH DIVISION
Office

. ' #_•I

ANTHONY LONON,

Deputy

Plaintiff,

r.

CASE NO. CV413-115

Wo

GLOBUS MEDICAL, INC.,
Defendant.

ORDER

Before the Court is Defendant Globus Medical, Inc.'s
Second Motion to Dismiss. (Doc. 24.) For the following
reasons, the Court sua sponte
complaint. Plaintiff SHALL have

DISMISSES

Plaintiff's

twenty-one days

from the

date of this order to file a second amended complaint.
Defendant's Motion to Dismiss is DISMISSED AS MOOT.
BACKGROUND

This case involves the fracturing of two pedicle
screws manufactured by Defendant and implanted in
Plaintiff's spine. (Doc. 18 ¶{ 7-9.) While one fractured
screw has been removed, the second remains due to the risk
of vertebrae damage posed by its removal. (Id. ¶ 14.) As a
result, Plaintiff suffers from chronic back pain, rendering
him disabled. (Id. ¶IJ 15-16.)

On March 29, 2013, Plaintiff filed suit in the State
Court of Chatham County. (Doc. 1, Ex. 1.) In that
complaint, Plaintiff brought one claim for negligence,
alleging that "Defendant had 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.

¶f 18-20.) On May 6, 2013, Defendant

removed the case to this Court (Doc. 1) and subsequently
filed a Motion to Dismiss, arguing that Plaintiff's factual
allegations were insufficient to establish a claim for
negligence (Doc. 10 at 4-7). The Court granted Defendant's
motion and directed Plaintiff to file an amended complaint.
(Doc. 17.)
On April 7, 2014, Plaintiff filed his amended
complaint. (Doc. 18.) In the amended complaint, Plaintiff
retained, without addition, the factual allegations of his
prior complaint, but included three claims instead of only
one. (Id.) Whereas the initial complaint purportedly only
sought recovery for Defendant's alleged negligence, the
amended complaint seeks relief based on negligence, strict
liability, and breach of warranty. (Id. ¶J 17-32.) While
2

the amended complaint is certainly an improvement,
Plaintiff still lumps numerous legal theories under each
claim for relief, such as negligent design, negligent
manufacture, negligent testing, negligent marketing,
negligent failure to warn, negligent failure to instruct,
and negligent failure to advise the consuming public. (See
id. ¶ 22.)
Accordingly, Defendant filed a second Motion to
Dismiss. (Doc. 24.) In this motion, Defendant contends that
Plaintiff fails to state a breach of warranty claim due to
lack of privity between Plaintiff and Defendant. (Id. at 45.)

In addition, Defendant argues that many of Plaintiff's

negligence theories are barred by the doctrine of learned
intermediary. (Id. at 9-10.) Finally, Defendant maintains
that Plaintiff has failed to properly allege the essential
elements of both his negligence and strict liability
claims, and that these claims are preempted by the Medical
Device Amendments of 1976. (Id. at 4-8, 10-13.)
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
3

unadorned, the-defendant-unlawfully-harmed-me accusation."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 1 "A
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.' "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
1

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

more than a sheer possibility that a defendant has acted
unlawfully." Iqbal, 556 U.S. at 678. "Where a complaint
pleads facts that are

'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

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, "[tihe 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)

5

Despite the enhanced allegations contained in the
amended complaint, it still falls short of the "short and
plain statement" required by Federal Rule of Civil
Procedure 8(a) (2). Moreover, it runs afoul of Rule 10(b) by
not pleading discrete claims in separate counts. See
Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001)
(per curiam). For example, Plaintiff's negligence claim
advances a multiplicity of negligence theories, each
requiring slightly different factual allegations to avoid
dismissal for failure to state a claim. (Doc. 18 ¶ 22.)
Plaintiff's strict liability count fails to even identify
how the screws were defective, only offering the conclusory
statement that they were "defective and unreasonably
dangerous at the time they were designed, manufactured, and
distributed." (Id. ¶ 25.) Even Plaintiff's breach of
warranty claim omits whether the alleged breach was of an
express or implied warranty. (Id. ¶J 28-32.)
Quite simply, Plaintiff's amended complaint amounts to
a shotgun pleading that fails to identify his claims with
sufficient clarity. These types of complaints render it
"virtually impossible to know which allegation of fact are
intended to support which claim(s) for relief," Anderson v.
Dist. Ed. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364,
366 (11th Cir. 1996), and are highly disfavored by the
[4

Eleventh Circuit Court of Appeals, Davis v. Coca-Cola
Bottling Co. Consol., 516 F.3d 955, 979 (11th Cir. 2008).
Ideally, a defendant should move for a more definite
statement under Federal Rule 12(e) when faced with a
shotgun complaint. Failing that, however, the Court must
sua sponte require a plaintiff to file an amended
complaint. See Thompson v. RelationServe Media, Inc., 610
F.3d 628, 698 (11th Cir. 2010) . The Eleventh Circuit has
even noted that

"[i]mplicit in such instruction is the

notion that if the plaintiff fails to comply with the
court's order—by filing a repleader with the same
deficiency—the court should strike his pleading or,
depending on the circumstances, dismiss his case and
consider the imposition of monetary sanctions." Id. at 699.
Therefore, the Court will sua sponte
Plaintiff's complaint. Plaintiff
one days

SHALL

again have

DISMISS
twenty-

from the date of this order to file a second

amended complaint. In his second amended complaint,
Plaintiff would be wise to bring individual claims
requiring their own distinct factual allegations in
separate counts. Mere incorporation by reference of all
facts previously alleged will not suffice to support a
theory of relief. Rather, each count must include specific

7

factual allegations that support that specific claim for
relief.
As a final note, the Court offers a few observations
to help Plaintiff in this undertaking. First, it appears
that "Georgia does not recognize a cause of action for
negligent testing." Villega

V.

Deere & Co., 135 F. App'x

279, 281 (11th Cir. 2005) . Second, Georgia law seems to
require privity between a plaintiff and a defendant for
claims based on breach of either an implied or express
warranty. See Lamb v. Georgia-Pacific Corp., 194 Ga. App.
848, 850, 392 S.E.2d 307, 309 (1990); Gowen v. Cady, 189
Ga. App 473, 476, 376 S.E.2d 390, 393 (1988) (holding no
privity exists between patient and medical device
manufacturer, and lack of privity fatal to implied and
express warranty claims). Finally, both of Plaintiff's
complaints have completely failed to allege the specific
type and model of pedicle screw that allegedly caused the
injury. Without this allegation, the Court is unable to
assess the applicability of the Medical Device Amendments
of 1976 to Plaintiff's claims. Therefore, the amended
complaint should contain an allegation concerning the

9

specific type and model screw implanted in Plaintiff's
spine

2

CONCLUSION

For the foregoing reasons, the Court sua sporite
DISMISSES

Plaintiff's complaint. Plaintiff

twenty-one days

SHALL

have

from the date of this order to file a

second amended complaint. Defendant's Motion to Dismiss
(Doc. 24) is DISMISSED AS MOOT.
SO ORDERED this

7

day of March 2015.

7

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

2

Plaintiff appears to make an assertion that he does not
know the specific type and model of screw at issue in this
case. (Doc. 25 at 10.) The Court finds this argument highly
dubious. Even assuming the pedicle screws are in
Defendant's possession, certainly Plaintiff has access to
his own medical history. No doubt the medical history
contains the type and model of pedicle screws used in
Plaintiff's procedure. In the Court's observation,
Plaintiff's argument appears to be an attempt to create a
genuine issue of material fact by pleading ignorance of
facts that are most likely to be within his own control.
The Court will not require the parties to engage in costly
and potentially unnecessary discovery absent Plaintiff
providing a convincing argument why he is unable to allege
the type and model of screw implanted in his spine.
9