Vosberg v. Smith and Nephew, Inc.
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Virginia M. Kendall on 6/18/2013.Mailed notice(tsa, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RICHARD VOSBERG
Plaintiff,
v.
SMITH & NEPHEW, INC.
Defendant.
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No. 13 C 1552
Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Plaintiff Richard Vosberg filed a two-count complaint alleging that Defendant Smith &
Nephew, Inc. acted negligently and breached its implied warranty of merchantability by
manufacturing, distributing, and failing to properly inspect a defective artificial hip replacement
system. Vosberg alleges that he had the defective hip replacement implanted into his body and as
a result suffered pain and discomfort. He was then required to undergo a second surgery to
replace the artificial hip. Smith & Nephew moves pursuant to Federal Rule of Civil Procedure
12(b)(6) to dismiss both counts of Vosberg’s Complaint for failure to state a claim. The Court
denies that motion.
STATEMENT OF FACTS
The following facts are taken from Vosberg’s Complaint and are assumed to be true for
purposes of this Motion to Dismiss. See Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.
2008). All reasonable inferences are drawn in favor of Vosberg, the non-moving party. See
Killingsworth v. HSBC Bank, 507 F.3d 614, 618 (7th Cir. 2007) (citing Savory v. Lyons, 469 F.3d
667, 670 (7th Cir. 2006)).
In 2008, Vosberg underwent right hip revision/replacement surgery. (Complaint, ¶ 4.)
During the surgery, an artificial hip manufactured by Smith & Nephew was implanted into his
body. (Id.) In April 2011, Vosberg learned that the hip had failed and that dangerous metals were
being released into his body, causing him pain and discomfort. (Id. ¶ 5.) Vosberg underwent
surgery to remove the Smith & Nephew hip and it was subsequently confirmed that the hip implant
had failed. (Id.)
In Count I of his Complaint, Vosberg alleges that Smith & Nephew owed a duty to use
reasonable care in the manufacturing and design of the hip replacement and to test, inspect for, and
warn of defects and dangerous propensities and conditions inherent in and arising from the
replacement. (Id. ¶¶ 8–9.) According to Vosberg, Smith & Nephew was negligent in its testing,
certification, assembly, and manufacturing of the hip replacement. (Id. ¶ 10.) Specifically,
Vosberg alleges that Smith & Nephew committed one or more of the following acts or omissions:
(1) negligently manufacturing, distributing, and selling the hip replacement because it was not of
proper strength, durability, and metallurgical integrity; (2) failing to adequately test the hip
replacement to discover that it was defective in composition, structure, and strength; (3) failing to
provide adequate safeguards to protect patients and; (4) failing to warn of these defects even
though it knew or should have known that Vosberg would not realize or appreciate the dangerous
conditions arising from the use of the hip replacement. 1 (Id. ¶ 11.)
Count II of Vosberg’s Complaint alleges that Smith & Nephew breached the implied
warranty of merchantability. (Id. ¶ 13.) Specifically, Vosberg alleges that Smith & Nephew was
a merchant of the hip replacement and that it was reasonable for Smith & Nephew to expect that he
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Four paragraphs of Vosberg’s Complaint refer to a “Plaintiff Cahill.” (Complaint, ¶¶ 11(d), 13, 15, 17.) The Court
assumes these are typos, or more likely, remnants from an old complaint plaintiff’s counsel failed to take the time to
update when filing this case. See Cahill v. Smith & Nephew, No. 08 C 255, Dkt. No. 1 (two-count complaint in which
plaintiff Mary Theresa Cahill alleges Defendant Smith & Nephew, Inc. acted negligently and violated the implied
warranty of merchantability by installing a defective hip replacement that forced Cahill to undergo surgery to replace
and remove the defective hip with a new one). Rather than delay the litigation by ordering that counsel file an
amended, more thoroughly proofread Complaint, the Court proceeds for the purposes of this Motion to Dismiss based
on its understanding that plaintiff’s counsel intended to refer to Vosberg and not Cahill in the above-cited paragraphs
of the Complaint. Plaintiff is ordered to file a corrected Amended Complaint by July 1, 2013.
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would be affected by its use and operation. (Id. ¶¶ 14–15.)
Vosberg asserts that the hip
replacement was substandard, subject to breakage, and not fit for its ordinary purpose as evidenced
by the fact that it sheared into two pieces. (Id. ¶ 16.) Vosberg further asserts that he provided
notice of the breach of implied warranty of merchantability to Smith & Nephew pursuant to 810
ILCS 5/2-607(3), which provides that “[w]here a tender has been accepted, the buyer must within
a reasonable time after he discovers or should have discovered any breach notify the seller of the
breach or be barred from any remedy ….” (Id. ¶ 17.)
Vosberg alleges that as a direct and proximate result of Smith & Nephew’s negligence, he
was required to undergo surgery to remove and replace the defective hip, experienced pain and
suffering, incurred substantial medical bills, suffered a loss of a normal life, and is unable to carry
out his usual and daily activities. (Id. ¶¶ 12, 18.)
STANDARD OF REVIEW
When considering a motion to dismiss under Rule 12(b)(6), the Court accepts as true all
facts alleged in the complaint and construes all reasonable inferences in favor of the plaintiff.
Killingsworth, 507 F.3d at 618 (citing Savory, 469 F.3d at 670); accord Murphy, 51 F.3d at 717.
To state a claim upon which relief can be granted, a compliant must contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
“Detailed factual allegations” are not required, but the plaintiff must allege facts that when
“accepted as true . . . ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Federal Rule of Civil Procedure 8(a)(2) imposes “two easy-to-clear hurdles” that a
complaint must satisfy in order to survive a motion to dismiss pursuant to Federal Rule of
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Procedure 12(b)(6). Tamayo, 526 F.3d at 1084 (quoting EEOC v. Concentra Health Svcs., Inc.,
496 F.3d 773, 776 (7th Cir. 2007). First, a complaint must describe the plaintiff’s claims and the
grounds supporting them in “sufficient detail to give the defendant fair notice of what the claim is
and the ground upon which it rests.” Anderson v. Donahoe, 699 F.3d 989, 998 (7th Cir. 2012)
(quoting Tamayo, 526 F.3d at 1084). Second, the Court must determine whether the well-pleaded
allegations, if true, “plausibly suggest a right to relief, raising that possibility above a speculative
level.” See Iqbal 556 U.S. at 679; Concentra, 496 F.3d at 776. A claim has facial plausibility
when the pleaded factual content allows the Court to draw a reasonable inference that the
defendant is liable for the misconduct alleged. See Iqbal, 556 U.S. at 678. Though the “degree
of specificity required is not easily quantified … ‘the plaintiff must give enough details about the
subject-matter of the case to present a story that holds together.’ ” McCauley v. City of Chicago,
671 F.3d 611, 616 (7th Cir. 2011) (quoting Swanson, 614 F.3d at 404). If a complaint does not
satisfy these two criteria, “the plaintiff pleads itself out of court.” Concentra, 496 F.3d at 776.
DISCUSSION
In Illinois, “[a] product liability action asserting a claim based on negligence … falls within
the framework of common law negligence.” Winters v. Fru-Con Inc., 498 F.3d 734, 746 (7th Cir.
2007) (citing Calles v. Scripto-Tokai Corp., 864 N.E.2d 249, 250 (Ill. 2007)). In order to state a
claim for negligence under Illinois law, “a plaintiff must plead a duty owed by a defendant to that
plaintiff, a breach of duty, and injury proximately caused by the breach of duty.” Reynolds v. CB
Sports Bar, Inc., 623 F.3d 1143, 1148 (7th Cir. 2010) (quoting Bell v. Hutsell, 931 N.E.2d 299, 302
(Ill. 2010)). In order to state a claim for breach of implied warranty of merchantability, Vosberg
must allege that: (1) Smith & Nephew’s hip replacement was not merchantable at the time of sale;
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(2) he suffered damages as a result of the defective hip replacement; and (3) he gave Smith &
Nephew notice of the defect. 810 ILCS 5/2-314; see, e.g., Munch v. Sears Roebuck and Co., No. 06
C 7023, 2007 WL 2461660, at *4 (N.D. Ill. Aug. 27, 2007); Industrial Hard Chrome Ltd. v.
Hetran, Inc., 64 F.Supp.2d 741, 748 (N.D.Ill. 1999). To be “merchantable,” the goods must be,
among other things, fit for the ordinary purpose for which the goods are used. 810 ILCS
5/2/-314(2)(c); Munch, 2007 WL 2461660, at *4 (citing Hetran, 64 F.Supp. at 748).
The allegations set forth in Vosberg’s Complaint satisfy the minimum pleading
requirements under Rule 8 for both claims. Vosberg’s negligence claim alleges that that Smith &
Nephew owed a duty to Vosberg to exercise reasonable care in the manufacturing and design of
the hip replacement and to test, inspect for, and warn of defects and dangerous propensities and
conditions inherent in and arising from the hip replacement. With respect to the element of
breach, the Complaint alleges that Smith & Nephew: (1) negligently manufactured and sold a hip
replacement that was not of proper strength, durability, or metallurgical integrity; (2) failed to
adequately test the hip replacement to discover it was defective in composition, strength, and
structure; (3) failed to provide safeguards to protect individuals such as himself and; (4) failed to
warn of defects Smith & Nephew was or should have been aware of. Lastly, Vosberg alleges that
as a proximate result of the above acts and omissions, he was required to undergo a second hip
replacement surgery that resulted in pain and suffering, loss of a normal life, an inability to carry
out his usual and daily activities, and substantial medical costs. These allegations, assumed to be
true at this stage in the proceedings, are sufficient to state a claim for negligence that is both
plausible on its face and sufficient to give Smith & Nephew fair notice of the claim against it.
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Count II of the Complaint also meets Rule 8’s pleading requirements. First, Vosberg
alleges that the hip was not fit for its ordinary purpose and was not of merchantable quality
because it was subject to breakage, and specifically, because it “sheared in two pieces.” Second,
Vosberg has alleged he suffered damages as a result of the defective hip replacement. Third,
Vosberg asserts that he has provided Smith & Nephew notice of the breach in accordance with 810
ILCS 5/2-607(3). These allegations are sufficient to state a claim for breach of implied warranty
of merchantability.
Smith & Nephew nevertheless argues that Vosberg’s Complaint must be dismissed
because it is “lacking in factual detail.” Specifically, Smith & Nephew maintains that the
Complaint contains no information regarding the month and date of his 2008 hip replacement
surgery, the manner by which he learned that his hip had failed, the specific part numbers (as
opposed to the model numbers, which are identified in the Complaint) that were defective, or
whether it was the rod or ball component of the hip replacement that sheared in two. Smith &
Nephew also asserts that Vosberg has provided no description or proof of the notice he allegedly
gave Smith & Nephew pursuant to 810 ILCS 5/2-607(3). However such factual details need not
be alleged in order to satisfy the minimum pleading requirements set forth in Rule 8. See
Fed.R.Civ.P. 8(a)(2) (pleadings must contain a “short plain statement of the claim showing that the
pleader is entitled to relief.”); Iqbal, 556 U.S. at 678 (“Detailed factual allegations” are not
required in order to survive a Rule 12(b)(6) motion). Drawing all reasonable inference in favor of
Vosberg, the Court finds that the sufficiently alleges that a substandard and defective hip designed
and manufactured by Smith & Nephew was implanted into Vosberg and subsequently removed as
a result of a defect caused by Smith & Nephew’s negligence and breach of its implied warranty of
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merchantability.
At this stage in the proceedings, the Court finds that these allegations
sufficiently “present a story that holds together.” McCauley, 671 F.3d at 616 (quoting Swanson,
614 F.3d at 404).
CONCLUSION AND ORDER
For the reasons stated, Smith & Nephew’s Motion to Dismiss is denied. Vosberg is
ordered to file a corrected Amended Complaint by July 1, 2013.
________________________________________
Virginia M. Kendall
United States District Court Judge
Northern District of Illinois
Date: June 18, 2013
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