Marozsan v. DJ Orthopedics, LLC et al

Filing 27

OPINION AND ORDER granting in part and denying in part 20 Motion to Dismiss. The Court dismisses Counts 2 and 3 without prejudice, but Count 1 remains pending. Signed by Judge Jon E DeGuilio on 2/15/19. (nal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KARL MAROZSAN,
Plaintiff,
v.
DJ ORTHOPEDICS, LLC., et al.,
Defendants.

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Case No. 3:18-CV-329 JD

OPINION AND ORDER
Karl Marozsan had his hip replaced by a prosthetic orthopedic implant manufactured by
the defendants in this case. He alleges that the implant was defective, causing him to experience
pain and weakness and to have to undergo another replacement surgery, so he filed this suit. The
defendants moved to dismiss the complaint, arguing that the claims are barred by the statute of
limitations, are not adequately pled, and fail as a matter of law. The Court grants the motion in
part and denies it in part.
I. FACTUAL BACKGROUND
On September 19, 2013, Karl Marozsan underwent hip replacement surgery. That surgery
entails replacing the hip joint with a prosthetic orthopedic device. Part of the device attaches to
the patient’s femur, and a ball at the top of that part fits into a shell that then fits into the patient’s
hip socket. The femoral head forms the hip joint when it is placed inside the shell. The implant
that Mr. Marozsan received was designed, manufactured, and marketed by defendants DJ
Orthopedics, LLC and Encore Medical, LP. Mr. Marozsan alleges that the implant’s design
resulted in metal-on-metal contact between its parts. That contact can cause metal debris to leach
into the hip compartment. After the surgery, Mr. Marozsan began experiencing pain, weakness,

and a lack of mobility. He also had high concentrations of metal in his blood. Eventually, he had
to undergo another surgery to replace the hip implant.
Mr. Marozsan thus filed this suit in May 2018, alleging that he was injured by the
defective product, that the defendants did not adequately warn of its risks, and that they
misrepresented that it was safe. Mr. Marozsan asserts claims under state law, and the Court has
diversity jurisdiction. The defendants appeared and filed a motion to dismiss, which has been
fully briefed.
II. STANDARD OF REVIEW
In reviewing a motion to dismiss for failure to state a claim upon which relief can be
granted under Federal Rule of Civil Procedure 12(b)(6), the Court construes the complaint in the
light most favorable to the plaintiff, accepts the factual allegations as true, and draws all
reasonable inferences in the plaintiff’s favor. Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143,
1146 (7th Cir. 2010). A complaint must contain only a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). That statement must
contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its
face, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and raise a right to relief above the speculative
level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). However, a plaintiff’s claim need
only be plausible, not probable. Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930,
935 (7th Cir. 2012). Evaluating whether a plaintiff’s claim is sufficiently plausible to survive a
motion to dismiss is “‘a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.’” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th
Cir. 2011) (quoting Iqbal, 556 U.S. at 678).

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III. DISCUSSION
Mr. Marozsan asserts a claim under the Indiana Product Liability Act, plus common law
claims for fraud and fraudulent concealment. The defendants moved to dismiss all three counts.
A.

Indiana Product Liability Act Claim
The defendants offer multiple arguments in support of their motion to dismiss Count 1,

which asserts a claim under the Indiana Product Liability Act. They first argue that the claim is
barred by the two-year statute of limitations. The statute of limitations is an affirmative defense,
and “‘complaints need not anticipate and attempt to plead around defenses.’” Chicago Bldg.
Design, P.C. v. Mongolian House, Inc., 770 F.3d 610, 613 (7th Cir. 2014) (quoting United States
v. N. Trust Co., 372 F.3d 886, 888 (7th Cir. 2004)). Accordingly, “a motion to dismiss based on
failure to comply with the statute of limitations should be granted only where ‘the allegations of
the complaint itself set forth everything necessary to satisfy the affirmative defense.’” Id.
(quoting United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005)). In other words, dismissal on
this ground at the pleading stage is only appropriate when the plaintiff “affirmatively plead[s]
himself out of court.” Id.
Mr. Marozsan has not pled himself out of court, as the complaint does not (and need not)
specify when his claim accrued. The complaint alleges that Mr. Marozsan underwent surgery on
September 19, 2013, well over two years before he filed suit, but it does not allege when Mr.
Marozsan became injured as a result. In arguing to the contrary, the defendants rely entirely on
the following allegation in the complaint: “Since Plaintiff’s surgical implant of the Encore/DJO
Surgical hip, plaintiff began to suffer and continues to suffer symptoms including but not limited
to pain, weakness, difficulty with daily activities.” [DE 7 ¶ 25]. The defendants interpret this as
meaning that Mr. Marozsan began experiencing those symptoms immediately after his surgery,
in which case the claim would have accrued at that time. But the allegation says “since” the
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surgery, which can simply mean any time after the surgery. See https://www.merriamwebster.com/dictionary/since (last visited Feb. 13, 2019) (defining “since” as meaning “after a
time in the past: subsequently”). Mr. Marozsan confirms in his response brief that that was the
meaning he intended. At worst, the phrasing is ambiguous, but that ambiguity means that Mr.
Marozsan has not pled himself out of court, so the Court denies the motion to dismiss on that
ground.
The defendants next argue that two of Mr. Marozsan’s three theories under the Product
Liability Act fail as a matter of law. The Act provides three general theories of liability:
manufacturing defect, design defect, and failure to warn. Weigle v. SPX Corp., 729 F.3d 724, 731
(7th Cir. 2013). Defendants are strictly liable for manufacturing defects, but “[i]nadequatewarning and defective-design claims both sound in negligence.” Id. The defendants note that Mr.
Marozsan’s complaint alleges that they are “strictly liable” for the defective products, which they
interpret as meaning that Mr. Marozsan wishes to hold them strictly liable under all three
theories. Because strict liability does not apply to design defects and failures to warn, the
defendants move to dismiss the claim in those respects.
That is not a basis for dismissing this claim, though. First, complaints need not plead
legal theories. Chessie Logistics Co. v. Krinos Holdings, Inc., 867 F.3d 852, 859 (7th Cir. 2017).
Thus, “specifying an incorrect theory is not fatal.” Bartholet v. Reishauer A.G. (Zurich), 953
F.2d 1073, 1078 (7th Cir. 1992). And second, the complaint acknowledges that those theories are
governed by a negligence standard, as it alleges that the defendants “owed [Mr. Marozsan] a
duty of reasonable care when designing and marketing (instructions and/or warnings) the
Encore/DJO Surgical hip.” [DE 7 ¶ 37; see also ¶ 44 (alleging that the defendant “failed to

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exercise reasonable care under the circumstances”)]. Thus, the complaint appropriately asserts
negligence claims on those grounds.
Finally, the defendants argue that the complaint fails to adequately allege the way in
which the product was defective and how it injured Mr. Marozsan. The Court disagrees. The
complaint describes how the implant caused metal-on-metal contact between its parts, which
“causes cobalt and chromium debris to leach into the hip compartment.” [DE 7 ¶ 12]. As a result,
Mr. Marozsan “has experienced elevated levels of metal ions in his bloodstream,” which “can
cause significant health problems.” Id. ¶ 25; see also ¶ 27 (“Blood studies have shown abnormal
metal concentrations in Plaintiff’s blood consistent with metal-on-metal wearing of the
Encore/DJO Surgical hip implant.”). Mr. Marozsan further alleges that the implant caused him to
experience pain, weakness, and a lack of mobility, and that he had to undergo another surgery to
replace the defective implant. Id. ¶ 25, 27, 29.
The defendants note that the complaint contains other allegations that are conclusory,
such as that the implant was not in compliance with applicable regulations, but without
identifying those regulations or how the implant violated them. The Seventh Circuit has held,
though, that a complaint need not include those details in the first place: “Defendants object that
the original complaint does not specify the precise defect or the specific federal regulatory
requirements that were allegedly violated. Although the complaint would be stronger with such
detail, we do not believe the absence of those details shows a failure to comply with Rule 8 . . . .”
Bausch v. Stryker Corp., 630 F.3d 546, 560 (7th Cir. 2010) (noting also that it “is common . . .
for injured plaintiffs to plead both defective manufacture and defective design and to pursue
discovery on both theories”). The failure to supply those details thus does not mean that the
complaint does not adequately plead the claim. The complaint here is also not comparable to the

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threadbare complaint that was dismissed in Cavender, which did not allege the nature of the
defect or even what the plaintiff’s injury was. Cavender v. Medtronic, Inc., No. 3:16-cv-232,
2016 WL 6599744 (N.D. Ind. Nov. 8, 2016). Mr. Marozsan’s complaint identifies the feature of
the implant that makes it defective and the ways in which the implant injured him. That suffices
to give the defendants notice of the claim against them. Accordingly, the Court denies the motion
to dismiss Count 1.
B.

Fraud Claims
The defendants next move to dismiss Counts 2 and 3, which assert claims for fraud and

fraudulent concealment. Mr. Marozsan alleges that the defendants defrauded him by representing
that the implant had been tested and found to be safe and effective, and that it was safer than
other alternative devices. His fraudulent concealment claim is the corollary to that claim: he
alleges that, by withholding information contrary to their fraudulent representations, the
defendants committed fraudulent concealment. The defendants argue that Mr. Marozsan failed to
adequately plead these claims and that they are preempted by the Product Liability Act. The
Court agrees with the first argument, so it need not reach the second.
Normally, a complaint need only contain “a short and plain statement of the claim
showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), which requires only enough
factual content to show that the claim is “plausible.” Iqbal, 556 U.S. at 678. However, a special
rule applies for pleading fraud: under Rule 9(b), “a party must state with particularity the
circumstances constituting fraud . . . .” Fed. R. Civ. P. 9(b) (emphasis omitted). “This ordinarily
requires describing the ‘who, what, when, where, and how’ of the fraud . . . .” AnchorBank, FSB
v. Hofer, 649 F.3d 610, 615 (7th Cir. 2011). That rule applies to any claim “that is premised upon
a course of fraudulent conduct,” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 737 (7th
Cir. 2014), meaning it applies to both the fraud and fraudulent concealment claims.
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Mr. Marozsan’s complaint fails to allege fraud with the required degree of particularity.
The relevant allegations on fraud are the following: “Defendants represented through the
labeling, advertising, marketing materials, detail persons, seminar presentations, publications,
notice letters, and regulatory submissions that Encore/DJO Surgical hip had been tested and
found to be safe and effective for the treatment of pain and inflammation” and “Defendants
represented that Encore/DJO Surgical hip was safer than other alternative hip devices.” [DE 7
¶ 49]. That kitchen-sink allegation provides no particularity; the documents it references
seemingly encompass every medium by which the defendants might communicate about their
product. The complaint alleges the general subject matter of the fraudulent statements, but does
not identify what was said, when it was said, who said it, or where. The complaint’s allegations
about fraudulent concealment fare no better. In his response brief, Mr. Marozsan neither
acknowledges the heightened pleading standard nor undertakes to show how the complaint meets
that standard. Accordingly, the Court grants the motion to dismiss these claims, which are
dismissed without prejudice.
IV. CONCLUSION
The defendants’ motion to dismiss is GRANTED in part and DENIED in part. [DE 20].
The Court dismisses Counts 2 and 3 without prejudice, but Count 1 remains pending.
SO ORDERED.
ENTERED: February 15, 2019
/s/ JON E. DEGUILIO
Judge
United States District Court

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