Flagg v. Elliot et al

Filing 35

ORDER & REASONS granting 27 Motion to Dismiss for Failure to State a Claim. Party Memometal Inc., USA (incorrectly named as Memomental Inc, USA) and Stryker Corporation dismissed. Signed by Judge Martin L.C. Feldman on 9/10/2014. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KALE FLAGG

CIVIL ACTION

v.

NO. 14-0852

DR. DENISE ELLIOT, ET AL.

SECTION "F"

ORDER AND REASONS
Before the Court is a motion to dismiss for failure to state
a claim by Stryker Corporation and Memometal Inc., USA.

For the

reasons that follow, the motion is GRANTED.
Background
This medical malpractice and medical device product liability
lawsuit arises out of foot surgery and subsequent surgeries to
replace broken toe implants.
On March 23, 2012 Mr. Flagg underwent foot surgery in which
implants were placed in his second and third toes. Later that year
on December 10, 2012, when Dr. Denise Elliot examined Mr. Flagg, xrays revealed that the implants placed in his toes had broken.

A

week later, Dr. Elliot removed the broken implants and placed pins
in the toes.

As a result of complications from the December 17

surgery, Mr. Flagg underwent two additional surgeries.
In early December 2013 Mr. Flagg filed an administrative
complaint with the Louisiana Patient's Compensation Fund, alleging
medical malpractice against West Jefferson, Dr. Elliot, and the
Foot and Ankle Center, LLC; he requested a medical panel review of
1

his claims. Several days after adding the Foot and Ankle Center as
a defendant in his administrative complaint with the Louisiana
Patient's Compensation Fund, on December 13, 2013 Flagg sued Dr.
Denise

Elliot,

Foot

and

Ankle

Center,

Stryker

Corporation,

Memometal Inc., USA, Jefferson Parish Hospital Service District No.
1, d/b/a West Jefferson Medical Center, and various fictitious
insurance companies in state court in Jefferson Parish.1

It is

alleged that Stryker and Memometal manufactured the "defective" toe
implants.

The plaintiff alleges that he is disfigured, unable to

walk properly, in constant pain, and has suffered mental anguish
and emotional distress; he seeks to recover past, present, and
future medical expenses, pain and suffering, mental anguish, lost
wages, loss of service and loss of society.

On April 11, 2014

Stryker and Memometal removed the lawsuit to this Court, invoking
this Court's diversity jurisdiction.2
Thereafter the defendants urged the Court to dismiss the

1

The plaintiff alleges that Dr. Elliot was professionally
negligent in performing the surgeries and in delaying the proper
diagnosis and treatment of the complications caused by the
surgeries. As for West Jefferson Medical Center and the Foot and
Ankle Center, the plaintiff alleges that each are liable for hiring
staff and employees that violate the requisite standard of care and
that each medical center failed to investigate the medical devices
used by the hospital staff.
2

Stryker and Memometal urged the Court to disregard for
removal purposes the citizenship of West Jefferson, the Foot and
Ankle Center, and Dr. Elliot, all local defendants. Stryker and
Memometal insisted that the plaintiff has no reasonable basis to
recover against these defendants unless and until administrative
remedies are exhausted.
2

plaintiff's

claims:

West

Jefferson

sought

dismissal

of

the

plaintiff's claims on the ground that he failed to exhaust his
administrative remedies3 and Stryker and Memometal sought dismissal
of the plaintiff's product liability claims for failure to state a
claim upon which relief may be granted.
denied

the

plaintiff's

motion

to

On June 16, 2014 the Court

stay

and

dismissed

without

prejudice as premature his claims against West Jefferson, Dr.
Elliot, and the Foot and Ankle Center pending completion of the
medical review panel. That same day, the Court granted Stryker and
Memometal's

motion

to

dismiss,

but

allowed

the

plaintiff

an

opportunity to amend his deficient product liability allegations.
On

July

7,

2014

the

plaintiff

filed

an

amended

complaint.

Contending that the plaintiff has failed to cure his defective
product liability claims, Stryker and Memometal now seek to dismiss
with prejudice the plaintiff's amended claims for failure to allege
facts sufficient to establish a prima facie case of liability under
the Louisiana Products Liability Act.
I.
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted.

3

Such a motion is rarely

As an alternative to dismissal, the plaintiff requested
that the Court stay his claims against West Jefferson, Dr. Elliot,
and the Foot and Ankle Center pending completion of the medical
review panel.
3

granted because it is viewed with disfavor.

See Lowrey v. Tex. A

& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
pleading must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief."

Ashcroft v.

Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed.R.Civ.P. 8).

"[T]he

pleading standard Rule 8 announces does not require 'detailed
factual allegations,' but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation."

Id. at 678 (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
"'[T]he central issue [in deciding a motion to dismiss] is
whether,

in

the

light

most

favorable

to

complaint states a valid claim for relief.'"

the

plaintiff,

the

Gentilello v. Rege,

627 F.3d 540, 543-44 (5th Cir. 2010) (citation omitted). To survive
a Rule 12 motion to dismiss or for judgment on the pleadings, “a
complaint must contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face.’”
Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009)(quoting Ashcroft
v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009))(internal
quotation marks omitted).

“A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the

4

misconduct alleged.” Iqbal, 129 S. Ct. at 1949.

"We do not accept

as true conclusory allegations, unwarranted factual inferences, or
legal conclusions."

Plotkin v. IP Axess Inc., 407 F.3d 690, 696

(5th Cir. 2005)(citation omitted).
II.
A.
The only issue presented by the defendants' motion is whether
or not the plaintiff, by amending his defective state court
petition, has stated a plausible claim for relief under the
Louisiana Products Liability Act as to Stryker and Memometal.
The Louisiana Products Liability Act provides the exclusive
remedy against product manufacturers for injuries caused by their
products.

La.R.S. 9:2800.52; Demahy v. Schwarz Pharm., Inc., 702

F.3d 177, 182 (5th Cir. 2012).

A plaintiff must establish four

elements to succeed on his claim under the LPLA:
(1) that the defendant is the manufacturer of the
product; (2) that the plaintiff's damage was proximately
caused by a characteristic of the product; (3) that this
characteristic made the product "unreasonably dangerous";
and (4) that the claimant's damage arose from a
reasonably anticipated use of the product by the claimant
or someone else.
Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 261 (5th Cir. 2002).
The plaintiff must carry his burden of showing that a product was
unreasonably dangerous through one of four theories: (1) defective
design; (2) defective construction or composition; (3) because of
an inadequate warning; or (4) because of a breach of express
warranty.

La.R.S. 9:2800.54(B)(1-4).
5

B.
Stryker

and

Memometal

contend

that,

notwithstanding

the

plaintiff's amended pleading, the plaintiff has failed to state a
claim against them under any of these theories.

The plaintiff

counters that his amendment cures the deficiencies of his prior
pleading and that, even if not, dismissing his complaint before an
opportunity

for

discovery

would

be

prejudicial.

The

Court

disagrees; the plaintiff still pleads no facts that would allow the
Court to infer that Stryker and Memometal, the two remaining
defendants, are liable for manufacturing an unreasonably dangerous
product.
As

before,

the

factual

allegations

contained

in

the

plaintiff's state court petition are:
11.
On December 10, 2012, during a visit to offices of
Defendants, Dr. Denise Elliot and Foot and Ankle Center,
plaintiff discovered the implants in his toes had broken.
On December 17, 2012, Dr. Elliot removed the implants and
placed pins, and has since operated on Mr. Flagg's toes
twice more in January 2013 due to complications from the
December 17th surgery.
By his amended complaint, the plaintiff reiterates the entirety of
his prior allegations4 but adds:

4

In granting the defendants' motion to dismiss on June
16, 2014, this Court observed:
Beyond these allegations, the plaintiff
resorts to boilerplate devoid of factual
support in his attempt to allege in what way
the toe implants are unreasonably dangerous;
he alleges that Stryker and Memometal, the
alleged manufacturers of "the defective
6

18.
Plaintiff's injuries were caused by the defective and
unreasonably dangerous product manufactured and sold by
Stryker Corporation, or in the alternative Memometal Inc.
USA, in the following no-exclusive particulars, to wit:
a) Manufacturing and selling a product which is
unreasonably
dangerous
in
construction
and/or
composition; particularly a different alloy other than
the Memometal NiTinol would have a better fatigue life
and/or product life, the body temperature activated shape

implants" are liable for "manufacturing and
selling a product which is unreasonably
dangerous in construction and/or composition";
"manufacturing and selling a product which is
unreasonably dangerous in design"; "failing to
provide adequate warning"; "manufacturing and
selling a product that is unreasonably
dangerous because it does not conform to an
express
warranty
of
the
manufacturer".
Nothing but labels and conclusions.
The
plaintiff's
allegations
are
technically deficient. The plaintiff pleads
no facts that would allow the Court to infer
that the defendants are liable. Notably, the
plaintiff fails to identify the nature of the
defect; suggest how the toe implants deviated
from their intended design; allege the
existence of a reasonable alternative design
capable of preventing Mr. Flagg's injuries;
identify how the characteristic made the
implants unreasonably dangerous; allege facts
concerning what characteristic the defendants
failed to warn about, or allege that but for
the inadequate warning the implanting surgeon
would not have used the implants; allege any
facts regarding how the implants caused the
alleged injuries; suggest whether Stryker or
Memometal failed to warn his doctor of a
particular risk; allege facts suggesting that
an express warranty induced the plaintiff or
his doctor to use the device, or what the
express warranty represented about the device;
or otherwise state facts that would plausibly
support a conclusion that any failure to warn
caused Mr. Flagg's injury.
See Order and Reasons dated June 16, 2014, at page 12-13.
7

memory of the alloy used interfered and negatively
influenced the fatigue life and/or product life
expectancy of the implant;
b) Manufacturing and selling a product which is
unreasonably dangerous in design; particularly the shape
and incorrect sizing contributed to the fracture of the
implant and difficulty in removal once the implants
broke;
c) Failing to provide adequate warnings regarding
product life expectancy and limitation of movement once
implants are placed as Plaintiff's implants failed within
months of placement;
d) Manufacturing and selling a product that is
unreasonably dangerous because it does not conform to an
express warranty of the manufacturer as to expected
product life, comprehensive size range of implants, and
ability to move digits once implants were placed.
e) Any and all other particulars which may appear
through discovery and further examination of the product.
The Court considers whether Mr. Flagg has alleged a right to
relief under the LPLA that is plausible on its face.

The parties

dispute whether these alleged facts comply with the pleading
standards under Federal Rule of Civil Procedure 8(2)(a).

The

defendants insist that the plaintiff still fails to allege that the
toe implants were unreasonably dangerous through any one of the
four theories: (1) defective design; (2) defective construction or
composition; (3) because of an inadequate warning; or (4) because
of a breach of express warranty.
1.

The Court agrees.

Defective Design

A product's design is unreasonably dangerous only if the
plaintiff demonstrates that, at the time the product left the
manufacturer's control, "'[t]here existed an alternative design for
the product that was capable of preventing the claimant's damage'

8

and that the danger of the damage outweighed the burden on the
manufacturer of adopting the alternative design."

Jacobsen v.

Wyeth, LLC, No. 10-823, 2012 WL 3575293, at *6 (E.D. La. Aug. 20,
2012)(quoting La.R.S. § 9:2800.56).
In

his

defendants'

amended
product

complaint,
was

Mr.

Flagg

unreasonably

alleges

dangerous

that
in

the

design

"particularly the shape and incorrect sizing contributed to the
fracture of the implant and the difficulty in removal once implants
broke." The defendants contend that these conclusory allegations
fail to satisfy federal pleading standards. The Court agrees.

Not

only does the plaintiff fail to identify the product at issue, but
he fails to allege that an alternative design for the product (an
implant of a different shape or size, perhaps) exists, that the
alternative

design

was

capable

of

preventing

the

plaintiff's

injuries, and that the danger of the damage outweighed the burden
on the defendants of adopting the alternative design.
2.

Defective Construction or Composition

A defective construction claim provides a remedy for harm
caused by a product defect "due to a mistake in the manufacturing
process."

Stahl, 283 F.3d at 263.

In presenting a defective

construction or composition theory of recovery under the LPLA, the
plaintiff must prove that, "at the time the product left [the]
manufacturer's control, [it] deviated in a material way from the
manufacturer's specifications or performance standards for the

9

product or from otherwise identical products manufactured by the
same manufacturer."
With

respect

construction

or

La.R.S. § 9:2800.55.
to

the

toe

implants'

composition,

the

allegedly

plaintiff

now

defective
alleges

"particularly a different alloy other than the Memometal NiTinol
would have a better fatigue life and/or product life, the body
temperature activated shape memory of the alloy used interfered and
negatively

influenced

the

fatigue

life

and/or

product

life

expectancy of the implant." The defendants contend that these
allegations fail to allege facts that, if proven, would demonstrate
a mistake in the manufacturing process or how the device deviated
from the intended design.

The Court agrees.

The plaintiff's allegations, if proven, would demonstrate that
a different alloy from the one used has a better fatigue life and
more

resilient

shape

memory,

which

would

enhance

the

life

expectancy of the product (such that it would not have broken so
shortly after placement).

However, at most, the plaintiff's

allegations, if proven, suggest that a different product altogether
should have been used, not that the device used deviated from its
intended design.

Complicating matters, the plaintiff still fails

identify the toe implants product at issue (presumably the product
at issue is composed of "Memometal NiTinol").

Absent factual

allegations addressing how (or even simply that) the product
deviated from Stryker's or Memometal's normal production standards,

10

the plaintiff fails to meet the plausibility standard.
3.

Inadequate Warning and Breach of Express Warranty

To establish an inadequate warning claim, a plaintiff must
show that: (1) the defendant failed to warn the plaintiff's doctor
of a risk associated with the product that was otherwise unknown to
the doctor; and (2) the failure to warn the doctor was both a cause
in fact and the proximate cause of the plaintiff's injury.

Stahl,

283 F.2d at 265-66.
Mr. Flagg alleges that the defendants failed to provide
adequate warnings "regarding product life expectancy and limitation
of movement once implants are placed as Plaintiff's implants failed
within

months

of

placement."

Noticeably

absent

from

these

allegations is any suggestion that the defendants failed to warn
the plaintiff's implanting physician of these particular risks,
that these risks were unknown to Dr. Elliot, or that but for the
allegedly inadequate warning, Dr. Elliot would not have used the
implants. The plaintiff still fails to allege that the defendants'
product

was

made

unreasonably

dangerous

because

it

was

not

accompanied by adequate warnings.
Finally, the Court turns to the breach of express warranty
claim.

The plaintiff alleges that the defendants' toe implants

fail to "conform to an express warranty of the manufacturer as to
expected product life, comprehensive size range of implants, and
ability to move digits once implants are placed."

11

The defendants

contend that the plaintiff fails to allege facts suggesting that an
express warranty induced the plaintiff or his doctor to use the
device; an essential element of an LPLA breach of express warranty
claim.

La.R.S. 9:2800.58; Reed v. Biomet Orthopedics, Inc., No.

06-544, 2008 WL 4829958, at *8 (W.D.La. Aug. 8, 2005), aff'd, 318
Fed.Appx. 305 (5th Cir. 2009).

The Court agrees.

As before, the

plaintiff's allegations are vague and conclusory;5 he fails to
allege facts suggesting that an express warranty induced the
plaintiff or his doctor to use the defendants' particular toe
implants, an essential element of a breach of express warranty
claim.
The defendants' motion to dismiss is GRANTED.

The plaintiff

has already been granted one opportunity to amend and, although his
allegations were marginally improved, he nevertheless failed to
advance factual allegations that support a plausible claim for
relief under the Louisiana Products Liability Act.

5

Accordingly,

Rotely listing "expected product life, comprehensive
size range of implants, and ability to move digits after implants
are placed", without any context, is an ineffectually unadorned
attempt to meet the plausibility test. “A claim has facial
plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (“The
plausibility standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has
acted unlawfully.”). “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. (internal quotations omitted) (citing Twombly, 550
U.S. at 557).
12

the plaintiff's claims against Stryker and Memometal are hereby
dismissed with prejudice.
New Orleans, Louisiana, September 10, 2014

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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