Jones et al v. Davol, Inc.

Filing 24

MEMORANDUM Opinion and Order. The Court grants in part and denies in part defendant's motion to dismiss the amended complaint 13 . The motion is granted with respect to Count III, which is dismissed with prejudice, but is otherwise denied. Signed by the Honorable Jorge L. Alonso on 3/23/2015. Notice mailed by judge's staff (ntf, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHELLE JONES and TROY
L. VINCENT, SR.,
Plaintiffs,
v.
DAVOL, INC.
Defendant.

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No. 14 C 9283
Judge Jorge L. Alonso

MEMORANDUM OPINION AND ORDER
Plaintiffs sue defendant for strict liability, negligence, breach of implied warranty of
merchantability, and loss of consortium. Defendant has filed a Federal Rule of Civil Procedure
(“Rule”) 12(b)(6) motion to dismiss the first amended complaint. For the reasons set forth below,
the Court grants in part and denies in part the motion.

Facts
On December 30, 2009, a Ventrio Mesh hernia patch designed, manufactured, and placed
into the stream of commerce by defendant was implanted into Michelle Jones’ body. (1st Am.
Compl., Count I ¶ 2.) Defendant negligently designed and/or manufactured the mesh such that “its
edges were or could . . . become sharp and penetrate[] internal body tissues.” (Id., Count I ¶ 3(d)
& Count II ¶ 4(c).) Moreover, defendant knew about the defect but failed to warn users about it.
(Id., Count I ¶¶ 3-5 & Count II ¶¶ 4-7.) Consequently, the mesh penetrated Michelle’s small bowel
in multiple places, requiring surgical removal of both the mesh and a section of her bowel. (Id.,
Count I ¶ 6 & Count II ¶ 8.)

Discussion
On a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded factual
allegations of the complaint, drawing all reasonable inferences in plaintiff’s favor. Hecker v. Deere
& Co., 556 F.3d 575, 580 (7th Cir. 2009). “[A] complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations” but must contain “enough facts to state a claim
for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Defendant argues that Jones’ failure to warn allegations in Counts I and II – that defendant’s
“warnings and instructions were defective in that insufficient and/or inaccurate information was
conveyed to end users” and “learned intermediaries” (1st Am. Compl. Count I ¶ 3(f), (g) & Count
II ¶ 4 (d), (e)) – are inadequate because they do not “describe the alleged inaccuracies in the
warnings.” (Def.’s Mem. Supp. Mot. Dismiss at 4.) The Court disagrees. It is reasonable to infer
from the amended complaint as a whole that the warning allegedly lacking was that the mesh had
edges that were or could become sharp and penetrate internal body tissues. Accordingly, the Court
denies defendant’s motion to dismiss the failure to warn claims in Counts I and II.
Defendant also argues that plaintiffs have failed to state an actionable claim for negligent
design in Count II. To state such a claim, plaintiff must allege “either [that] (1) the defendant
deviated from the standard of care that other manufacturers in the industry followed at the time the
product was designed, or (2) that the defendant knew or should have known, in the exercise of
ordinary care, that the product was unreasonably dangerous and defendant failed to warn of its
dangerous propensity.” Blue v. Envtl. Eng’g, Inc., 828 N.E.2d 1128, 1141 (Ill. 2005). Though, as
defendant points out, plaintiffs have not alleged the former, they have alleged the latter. (See 1st
Am. Compl. Count I, ¶¶ 3-5 & Count II ¶¶ 4-7.) Moreover, contrary to defendant’s assertion, Jones

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has also adequately alleged that the alleged defect caused her injuries. (See id., Count I ¶ 6 & Count
II ¶ 8.) Thus, defendants’ motion to dismiss the negligence claim in Count II, and the loss of
consortium claim in Count IV, which derives from the strict liability and negligence claims in
Counts I and II, is denied.
The situation is different, however, for the motion to dismiss the Count III claim for breach
of the warranty of merchantability. Because plaintiffs say the motion “is well taken and is not
opposed” (Pls.’ Resp. Def.’s Mot. Dismiss at 1 n.1), the Court grants it.

Conclusion
For the reasons set forth above, the Court grants in part and denies in part defendant’s motion
to dismiss the amended complaint [13]. The motion is granted with respect to Count III, which is
dismissed with prejudice, but is otherwise denied.
SO ORDERED.

ENTERED: March 23, 2015

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HON. JORGE ALONSO
United States District Judge

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