GORE et al v. STRYKER CORPORATION et al

Filing 77

ORDER granting Defendants' 70 Motion to Dismiss. Plaintiffs request that the court consider its Fourth Amended Complaint is DENIED.. Signed by Judge Richard L. Young on 7/29/2011. (TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION

GLEN GORE and ANGELA GORE,
Plaintiffs,
vs.
STRYKER CORPORATION,
STRYKER INSTRUMENTS, AND
STRYKER SALES CORPORATION,,
Defendants.

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3:10-cv-00137-RLY-WGH

ENTRY ON DEFENDANTS’ MOTION TO DISMISS THIRD AMENDED
COMPLAINT
On December 17, 2002, Glen Gore (“Mr. Gore”) underwent shoulder surgery at
Surgicare Outpatient Surgical Hospital in Evansville, Indiana. (Am. Compl. ¶ 9). At the
conclusion of his surgery, a Stryker pain pump was filled with medication and implanted
into Mr. Gore’s shoulder. (Id. ¶ 10). Plaintiffs’ claim that following implantation of the
Stryker pain pump, Mr. Gore experienced, inter alia, “pain, [an] inability to raise his arm
above shoulder level, severe degeneration in the anterior inferior humeral head,
cartilaginous loss about the humeral head, and arthritis/chondrolysis.” (Id. ¶ 11).
This case originated in the Eastern District of Pennsylvania in July 2009 and was
transferred to the Southern District of Indiana in August 2010. Shortly thereafter,
Defendants filed their motion to dismiss the Plaintiffs’ Amended Complaint. At that
time, the Amended Complaint consisted of six counts; a strict liability claim under the

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Indiana Products Liability Act, and various state common law claims for fraudulent
concealment, negligent failure to warn, negligence, negligent misrepresentation, and loss
of consortium. On January 20, 2011, the court granted the motion without prejudice, and
gave the Plaintiffs the option of filing a Second Amended Complaint within thirty (30)
days of the date of the Entry.
After Plaintiffs timely filed their Second Amended Complaint, counsel for the
Defendants notified Plaintiffs’ counsel of their concerns that the Second Amended
Complaint did not cure the defects of the Amended Complaint. Plaintiffs, with the
agreement of the Defendants, filed the present Third Amended Complaint. In their Third
Amended Complaint, Plaintiffs bring claims for design defect, failure to warn, and failure
to disclose defects under the Indiana Products Liability Act (Count I). Plaintiff also
brings a claim for loss of consortium (Count II). Defendants’ motion to dismiss is based
upon the same legal arguments as those raised in its successful motion to dismiss the
Amended Complaint.
Rather than respond to the substantive arguments raised by the Defendants,
Plaintiffs ask the court to instead consider their Fourth Amended Complaint, attached to
their Response Brief. Plaintiffs contend that the Fourth Amended Complaint “cures, if
warranted, the issues raised in Defendants’ argument that Plaintiffs failed to plead with
sufficient specificity and that Plaintiffs’ product liability claim fails under Indiana law.”
(Plaintiffs’ Response at 3-4). It is not the job of the court to read the Fourth Amended
Complaint to determine whether or not it states a claim upon which relief can be granted.
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See Little v. Cox’s Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995) (“[The court] is not
required to scour the party’s various submissions to piece together appropriate arguments.
A court need not make the lawyer’s case.”). Because Plaintiffs’ failed to respond to the
substantive arguments raised in Defendants’ Motion to Dismiss the Third Amended
Complaint, Defendants’ motion is GRANTED with prejudice. (Docket # 70). Plaintiffs’
request that the court consider its Fourth Amended Complaint is DENIED. See Airborne
Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 666 (7th Cir. 2007)
(affirming the district court’s dismissal of a fourth amended complaint because of
“repeated failure to cure deficiencies by amendments previously allowed”).

SO ORDERED this 29th day of July 2011.

__________________________________
_________________________________
RICHARD L. YOUNG, CHIEF JUDGE
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
United States District Court
Southern District of Indiana
Southern District of Indiana

Electronic copies to:
Douglas B. Bates
[e-mail]
Charles L. Berger
[e-mail]
Robert M. Connolly
[e-mail]

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Kevin Costello
[e-mail]
Matthew R. Lopez
[e-mail]
Bruce B. Paul
[e-mail]

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